RECODIFICATION OF TITLE 63 STATE
AFFAIRS IN GENERAL
2008 GENERAL SESSION
STATE OF UTAH
LONG TITLE
General Description:
This bill modifies Title 63, State Affairs in General, by recodifying and renumbering the content of the title to other parts of the code.
Highlighted Provisions:
This bill:
► renumbers and moves almost all chapters in Title 63 to different or new titles, chapters, and parts of the code;
► creates new titles into which many chapters of Title 63 are renumbered and moved;
► renumbers and moves several other chapters to related titles of the code;
► amends cross-references to coincide with renumbering of sections;
► repeals certain redundant provisions; and
► makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
3-1-6, as last amended by Laws of Utah 1994, Chapter 313
3-1-36, as last amended by Laws of Utah 1994, Chapters 203, and 313
4-1-3.5, as last amended by Laws of Utah 1997, Chapter 82
4-2-2, as last amended by Laws of Utah 2007, Chapter 179
4-2-8.5, as enacted by Laws of Utah 2006, Chapter 71
4-3-2, as last amended by Laws of Utah 1995, Chapter 20
4-3-14, as last amended by Laws of Utah 2007, Chapters 165, and 179
4-4-2, as last amended by Laws of Utah 1995, Chapter 20
4-5-9, as last amended by Laws of Utah 2004, Chapter 358
4-5-9.5, as enacted by Laws of Utah 2007, Chapter 334
4-9-2, as last amended by Laws of Utah 1995, Chapter 20
4-9-15, as last amended by Laws of Utah 2005, Chapter 226
4-10-3, as last amended by Laws of Utah 1995, Chapter 20
4-11-3, as last amended by Laws of Utah 1995, Chapter 20
4-12-3, as last amended by Laws of Utah 1995, Chapter 20
4-14-3, as last amended by Laws of Utah 2007, Chapters 179, and 370
4-14-6, as last amended by Laws of Utah 2007, Chapter 370
4-14-13, as enacted by Laws of Utah 2007, Chapter 370
4-15-3, as last amended by Laws of Utah 1995, Chapter 20
4-16-3, as last amended by Laws of Utah 1995, Chapter 20
4-18-5, as last amended by Laws of Utah 2007, Chapter 179
4-18-6.5, as enacted by Laws of Utah 2001, Chapter 326
4-20-1.5, as last amended by Laws of Utah 2007, Chapter 179
4-22-4.5, as last amended by Laws of Utah 1996, Chapter 79
4-23-5, as last amended by Laws of Utah 1995, Chapter 20
4-24-3, as last amended by Laws of Utah 1995, Chapter 20
4-25-3, as last amended by Laws of Utah 1995, Chapter 20
4-29-1, as last amended by Laws of Utah 1995, Chapter 20
4-30-3, as last amended by Laws of Utah 1995, Chapter 20
4-31-16.5, as last amended by Laws of Utah 2004, Chapter 325
4-31-21, as enacted by Laws of Utah 2000, Chapter 96
4-32-7, as last amended by Laws of Utah 1997, Chapter 302
4-33-4, as last amended by Laws of Utah 1995, Chapter 20
4-37-109, as last amended by Laws of Utah 2007, Chapter 191
4-37-201, as last amended by Laws of Utah 1995, Chapter 28
4-37-301, as last amended by Laws of Utah 1995, Chapter 28
4-37-602, as last amended by Laws of Utah 2007, Chapter 191
4-38-4, as last amended by Laws of Utah 1997, Chapter 135
4-38-6, as enacted by Laws of Utah 1992, Chapter 296
4-38-14, as last amended by Laws of Utah 1993, Chapter 4
4-39-106, as last amended by Laws of Utah 1999, Chapter 378
4-39-203, as enacted by Laws of Utah 1997, Chapter 302
4-39-502, as enacted by Laws of Utah 1997, Chapter 302
7-1-105, as last amended by Laws of Utah 1994, Chapter 200
7-1-301, as last amended by Laws of Utah 2004, Chapter 92
7-1-323, as last amended by Laws of Utah 2005, Chapter 25
7-1-324, as last amended by Laws of Utah 2004, Chapter 92
7-1-325, as enacted by Laws of Utah 2006, Chapter 165
7-1-704, as last amended by Laws of Utah 1994, Chapter 200
7-1-810, as last amended by Laws of Utah 2007, Chapter 277
7-2-9, as last amended by Laws of Utah 2004, Chapter 267
7-2-21, as enacted by Laws of Utah 1986, Fourth Special Session, Chapter 1
7-9-59, as enacted by Laws of Utah 2003, Chapter 177
7-23-103, as last amended by Laws of Utah 2007, Chapter 87
7-23-106, as last amended by Laws of Utah 2007, Chapter 87
7-23-108, as last amended by Laws of Utah 2007, Chapter 87
7-24-201, as last amended by Laws of Utah 2007, Chapter 87
7-24-203, as enacted by Laws of Utah 2003, Chapter 236
7-24-301, as last amended by Laws of Utah 2007, Chapter 87
7-24-303, as last amended by Laws of Utah 2007, Chapter 87
9-1-203, as renumbered and amended by Laws of Utah 1992, Chapter 241
9-1-809, as last amended by Laws of Utah 2004, Chapter 352
9-3-308, as last amended by Laws of Utah 1997, Chapter 10
9-3-410, as last amended by Laws of Utah 2003, Chapter 8
9-4-202, as last amended by Laws of Utah 2005, Chapter 170
9-4-306, as last amended by Laws of Utah 2002, Chapter 286
9-4-307, as last amended by Laws of Utah 2007, Chapter 303
9-4-509, as renumbered and amended by Laws of Utah 1992, Chapter 241
9-4-704, as last amended by Laws of Utah 2006, Chapter 359
9-4-906, as last amended by Laws of Utah 2006, Chapter 14
9-4-917, as last amended by Laws of Utah 2005, Chapter 102
9-4-1103, as last amended by Laws of Utah 2000, Chapter 231
9-4-1301, as last amended by Laws of Utah 2001, Chapter 273
9-4-1404, as last amended by Laws of Utah 2001, Chapter 162
9-4-1406, as enacted by Laws of Utah 2000, Chapter 286
9-6-205, as last amended by Laws of Utah 2005, Chapter 48
9-6-504, as renumbered and amended by Laws of Utah 1992, Chapter 241
9-6-605, as renumbered and amended by Laws of Utah 2006, Chapter 24
9-7-213, as last amended by Laws of Utah 2000, Chapter 136
9-7-302, as renumbered and amended by Laws of Utah 1992, Chapter 241
9-8-203, as last amended by Laws of Utah 1997, Chapters 353, and 371
9-8-305, as last amended by Laws of Utah 2006, Chapter 292
9-8-309, as enacted by Laws of Utah 2007, Chapter 231
9-8-405, as last amended by Laws of Utah 2004, Chapter 352
9-8-704, as last amended by Laws of Utah 1993, Chapter 4
9-9-104, as last amended by Laws of Utah 1999, Chapter 50
9-10-105, as last amended by Laws of Utah 2006, Chapter 14
9-11-102, as last amended by Laws of Utah 2004, Chapter 18
9-11-105, as last amended by Laws of Utah 1998, Chapter 48
9-11-106, as last amended by Laws of Utah 2006, Chapter 14
9-11-107, as last amended by Laws of Utah 2007, Chapter 104
9-12-103, as enacted by Laws of Utah 1998, Chapter 336
9-12-105, as renumbered and amended by Laws of Utah 1998, Chapter 336
10-1-306, as enacted by Laws of Utah 1996, Chapter 280
10-1-308, as enacted by Laws of Utah 1996, Chapter 280
10-1-405, as last amended by Laws of Utah 2007, Chapters 9, and 250
10-3-208, as last amended by Laws of Utah 2007, Chapter 256
10-3-1303, as last amended by Laws of Utah 2006, Chapter 359
10-3-1304, as last amended by Laws of Utah 2005, Chapter 25
10-3-1305, as last amended by Laws of Utah 2005, Chapter 25
10-7-86, as last amended by Laws of Utah 1997, Chapter 123
10-7-87, as last amended by Laws of Utah 2005, Chapter 25
10-8-2, as last amended by Laws of Utah 2007, Chapters 291, and 306
10-8-58.5, as last amended by Laws of Utah 2005, Chapter 102
10-9a-203, as last amended by Laws of Utah 2005, Chapters 169, 245 and renumbered and amended by Laws of Utah 2005, Chapter 254
10-9a-402, as renumbered and amended by Laws of Utah 2005, Chapter 254
10-18-302, as last amended by Laws of Utah 2005, Chapter 105
11-13-222, as last amended by Laws of Utah 2005, Chapter 102
11-13-302, as last amended by Laws of Utah 2007, Chapter 108
11-13-303, as last amended by Laws of Utah 2006, Chapter 221
11-17-20, as enacted by Laws of Utah 2007, Chapter 167
11-36-201, as last amended by Laws of Utah 2007, Chapter 329
11-36-402, as last amended by Laws of Utah 2004, Chapter 90
11-37-101, as last amended by Laws of Utah 2005, Chapter 25
11-38-102, as last amended by Laws of Utah 2006, Chapter 278
11-38-303, as enacted by Laws of Utah 1999, Chapter 24
11-39-101, as last amended by Laws of Utah 2007, Chapter 329
11-39-107, as last amended by Laws of Utah 2007, Chapter 329
11-42-205, as enacted by Laws of Utah 2007, Chapter 329
12-1-10, as enacted by Laws of Utah 1999, Chapter 235
13-1-2, as last amended by Laws of Utah 2005, Chapter 98
13-1-8.5, as last amended by Laws of Utah 1989, Chapter 225
13-1a-5, as enacted by Laws of Utah 1990, Chapter 9
13-1a-6, as last amended by Laws of Utah 1997, Chapter 10
13-1a-7, as enacted by Laws of Utah 1990, Chapter 9
13-1a-9, as renumbered and amended by Laws of Utah 2001, Chapter 46
13-2-5, as last amended by Laws of Utah 1994, Chapter 177
13-2-6, as last amended by Laws of Utah 1997, Chapter 92
13-2-8, as last amended by Laws of Utah 2005, Chapter 18
13-2-9, as enacted by Laws of Utah 2005, Chapter 281
13-14-104, as last amended by Laws of Utah 2005, Chapter 249
13-14-105, as last amended by Laws of Utah 2005, Chapter 249
13-14-106, as last amended by Laws of Utah 2005, Chapter 249
13-14-107, as last amended by Laws of Utah 2005, Chapter 249
13-15-4, as last amended by Laws of Utah 1995, Chapter 85
13-15-4.5, as enacted by Laws of Utah 1995, Chapter 85
13-21-3, as last amended by Laws of Utah 2001, Chapter 196
13-22-3, as last amended by Laws of Utah 1994, Chapter 185
13-22-6, as last amended by Laws of Utah 2004, Chapter 55
13-22-8, as last amended by Laws of Utah 2004, Chapter 55
13-22-9, as last amended by Laws of Utah 2001, Chapter 210
13-22-12, as last amended by Laws of Utah 2001, Chapter 210
13-23-5, as last amended by Laws of Utah 2005, Chapter 18
13-25a-109, as last amended by Laws of Utah 2004, Chapter 263
13-26-3, as last amended by Laws of Utah 2005, Chapter 18
13-32a-106.5, as enacted by Laws of Utah 2005, Chapter 256
13-32a-111, as last amended by Laws of Utah 2007, Chapter 352
13-34-104, as last amended by Laws of Utah 2005, Chapter 242
13-34-107, as last amended by Laws of Utah 2005, Chapter 242
13-34-113, as last amended by Laws of Utah 2005, Chapter 242
13-35-104, as last amended by Laws of Utah 2005, Chapter 268
13-35-105, as last amended by Laws of Utah 2005, Chapter 268
13-35-106, as last amended by Laws of Utah 2005, Chapter 268
13-35-107, as last amended by Laws of Utah 2005, Chapter 268
13-39-201, as last amended by Laws of Utah 2006, Chapter 336
13-39-203, as last amended by Laws of Utah 2006, Chapter 336
13-41-102, as last amended by Laws of Utah 2006, Chapter 153
13-42-105, as enacted by Laws of Utah 2006, Chapter 154
13-42-109, as enacted by Laws of Utah 2006, Chapter 154
13-42-110, as enacted by Laws of Utah 2006, Chapter 154
13-42-111, as enacted by Laws of Utah 2006, Chapter 154
13-42-112, as enacted by Laws of Utah 2006, Chapter 154
13-42-132, as enacted by Laws of Utah 2006, Chapter 154
13-42-134, as enacted by Laws of Utah 2006, Chapter 154
13-43-203, as enacted by Laws of Utah 2006, Chapter 258
13-43-204, as enacted by Laws of Utah 2006, Chapter 258
13-43-206, as enacted by Laws of Utah 2006, Chapter 258
14-1-18, as last amended by Laws of Utah 2007, Chapter 329
15-9-103, as enacted by Laws of Utah 2001, Chapter 237
15-9-105, as enacted by Laws of Utah 2001, Chapter 237
15-9-106, as enacted by Laws of Utah 2001, Chapter 237
15-9-107, as enacted by Laws of Utah 2001, Chapter 237
15-9-109, as enacted by Laws of Utah 2001, Chapter 237
16-6a-107, as last amended by Laws of Utah 2002, Chapter 197
16-6a-111, as enacted by Laws of Utah 2000, Chapter 300
16-6a-1413, as enacted by Laws of Utah 2000, Chapter 300
16-6a-1502, as last amended by Laws of Utah 2002, Chapter 197
16-6a-1517, as enacted by Laws of Utah 2000, Chapter 300
16-7-11, as last amended by Laws of Utah 1994, Chapter 313
16-10a-122, as last amended by Laws of Utah 1994, Chapter 313
16-10a-1423, as last amended by Laws of Utah 2000, Chapter 131
16-12-3, as last amended by Laws of Utah 1994, Chapter 313
16-13-12, as last amended by Laws of Utah 1994, Chapter 313
16-15-105, as enacted by Laws of Utah 1995, Chapter 310
16-15-107, as enacted by Laws of Utah 1995, Chapter 310
16-15-108, as enacted by Laws of Utah 1995, Chapter 310
17-15-24, as last amended by Laws of Utah 2005, Chapter 25
17-16-21, as last amended by Laws of Utah 2001, Chapter 9 and renumbered and amended by Laws of Utah 2001, Chapter 46
17-16a-4, as last amended by Laws of Utah 2005, Chapters 25, and 45
17-21-17, as last amended by Laws of Utah 2006, Chapter 38
17-21-19, as last amended by Laws of Utah 2002, Chapter 191
17-27a-203, as last amended by Laws of Utah 2005, Chapters 169, 245 and renumbered and amended by Laws of Utah 2005, Chapter 254
17-27a-402, as renumbered and amended by Laws of Utah 2005, Chapter 254
17-43-202, as renumbered and amended by Laws of Utah 2003, Chapter 22
17-43-302, as renumbered and amended by Laws of Utah 2003, Chapter 22
17-50-302, as last amended by Laws of Utah 2005, Chapter 254
17-50-401, as last amended by Laws of Utah 2005, Chapter 228
17-53-225, as last amended by Laws of Utah 2004, Chapter 206
17-53-311, as last amended by Laws of Utah 2005, Chapter 102
17-53-313, as renumbered and amended by Laws of Utah 2000, Chapter 133
17B-1-106, as renumbered and amended by Laws of Utah 2007, Chapter 329
17B-1-108, as renumbered and amended by Laws of Utah 2007, Chapter 329
17B-2a-818, as enacted by Laws of Utah 2007, Chapter 329
17C-2-602, as enacted by Laws of Utah 2007, Chapter 379
19-1-201, as last amended by Laws of Utah 1995, Chapters 28, and 324
19-1-301, as enacted by Laws of Utah 1991, Chapter 112
19-1-305, as last amended by Laws of Utah 2007, Chapter 151
19-1-306, as enacted by Laws of Utah 1992, Chapter 280
19-1-403, as last amended by Laws of Utah 2006, Chapters 136, and 223
19-1-404, as last amended by Laws of Utah 2006, Chapters 136, and 223
19-1-405, as enacted by Laws of Utah 2006, Chapter 136
19-2-104, as last amended by Laws of Utah 2006, Chapter 223
19-2-105.3, as last amended by Laws of Utah 2005, Chapter 2
19-2-109.1, as last amended by Laws of Utah 1995, Chapter 28
19-2-109.3, as enacted by Laws of Utah 1992, Chapter 105
19-2-109.5, as enacted by Laws of Utah 1996, Chapter 75
19-2-112, as renumbered and amended by Laws of Utah 1991, Chapter 112
19-2-115, as last amended by Laws of Utah 2003, Chapter 138
19-3-104, as last amended by Laws of Utah 2007, Chapter 26
19-3-106.4, as enacted by Laws of Utah 2001, Chapter 314
19-3-109, as renumbered and amended by Laws of Utah 1991, Chapter 112
19-3-111, as last amended by Laws of Utah 1991, Chapter 87 and renumbered and amended by Laws of Utah 1991, Chapter 112
19-3-303, as last amended by Laws of Utah 2001, Chapter 107
19-3-308, as last amended by Laws of Utah 2001, Chapter 107
19-3-315, as last amended by Laws of Utah 1999, Chapter 190
19-4-104, as last amended by Laws of Utah 2002, Chapter 295
19-4-109, as last amended by Laws of Utah 1998, Chapter 174
19-5-104, as last amended by Laws of Utah 2006, Chapter 179
19-5-113, as last amended by Laws of Utah 1995, Chapter 114
19-5-120, as enacted by Laws of Utah 1995, Chapter 114
19-5-121, as enacted by Laws of Utah 2001, Chapter 274
19-5-122, as enacted by Laws of Utah 2001, Chapter 274
19-6-102.6, as last amended by Laws of Utah 1996, Chapter 134
19-6-105, as last amended by Laws of Utah 1992, Chapter 282
19-6-108.3, as enacted by Laws of Utah 2007, Chapter 72
19-6-303, as last amended by Laws of Utah 1992, Chapter 280
19-6-321, as last amended by Laws of Utah 2005, Chapter 102
19-6-326, as enacted by Laws of Utah 2005, Chapter 200
19-6-403, as last amended by Laws of Utah 1997, Chapter 172
19-6-405.3, as enacted by Laws of Utah 1994, Chapter 297
19-6-408, as last amended by Laws of Utah 1997, Chapter 172
19-6-410.5, as last amended by Laws of Utah 2006, Chapter 107
19-6-427, as last amended by Laws of Utah 2005, Chapter 102
19-6-704, as enacted by Laws of Utah 1993, Chapter 283
19-6-721, as last amended by Laws of Utah 1994, Chapter 40
19-6-803, as last amended by Laws of Utah 2002, Chapters 249, and 256
19-6-806, as renumbered and amended by Laws of Utah 2000, Chapter 51
19-6-818, as renumbered and amended by Laws of Utah 2000, Chapter 51
19-6-819, as last amended by Laws of Utah 2001, Chapter 165
19-6-821, as last amended by Laws of Utah 2002, Chapter 256
19-6-906, as enacted by Laws of Utah 2004, Chapter 249
19-6-1003, as enacted by Laws of Utah 2006, Chapter 187
19-7-103, as enacted by Laws of Utah 1995, Chapter 304
19-7-104, as last amended by Laws of Utah 1997, Chapter 387
19-8-112, as enacted by Laws of Utah 1997, Chapter 247
19-8-117, as enacted by Laws of Utah 1997, Chapter 247
19-8-120, as enacted by Laws of Utah 2005, Chapter 200
19-9-105, as renumbered and amended by Laws of Utah 2003, Chapter 184
19-10-108, as enacted by Laws of Utah 2003, Chapter 44
20A-1-204, as last amended by Laws of Utah 2004, Chapter 371
20A-2-104, as last amended by Laws of Utah 2007, Chapter 75
20A-3-304.1, as last amended by Laws of Utah 2006, Chapter 264
20A-3-408.5, as enacted by Laws of Utah 2006, Chapter 273
20A-9-206, as enacted by Laws of Utah 2006, Chapter 226
20A-12-104, as last amended by Laws of Utah 2006, Chapter 14
23-14-2.1, as enacted by Laws of Utah 1987, Chapter 161
23-14-18, as last amended by Laws of Utah 2001, Chapter 22
23-14-21, as last amended by Laws of Utah 2003, Chapters 16, and 128
23-16-3.2, as enacted by Laws of Utah 2003, Chapter 228
23-16-4, as last amended by Laws of Utah 2003, Chapter 228
23-19-9, as last amended by Laws of Utah 2007, Chapter 136
23-19-38.2, as last amended by Laws of Utah 2007, Chapter 187
23-21-2.3, as last amended by Laws of Utah 2003, Chapter 16
23-24-1, as last amended by Laws of Utah 2006, Chapter 140
24-1-19, as enacted by Laws of Utah 2004, Chapter 296
26-1-4.1, as enacted by Laws of Utah 1987, Chapter 161
26-1-5, as last amended by Laws of Utah 2001, Chapter 138
26-1-6, as last amended by Laws of Utah 2001, Chapter 49
26-1-7.1, as enacted by Laws of Utah 1987, Chapter 161
26-1-17.5, as last amended by Laws of Utah 1994, Chapter 312
26-1-21, as last amended by Laws of Utah 1990, Chapter 93
26-2-22, as last amended by Laws of Utah 2006, Chapters 55, and 56
26-6b-1, as last amended by Laws of Utah 2006, Chapter 185
26-8a-104, as enacted by Laws of Utah 1999, Chapter 141
26-8a-105, as enacted by Laws of Utah 1999, Chapter 141
26-8a-207, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 17
26-8a-310, as last amended by Laws of Utah 2007, Chapter 43
26-8a-404, as last amended by Laws of Utah 2003, Chapter 213
26-8a-405.3, as enacted by Laws of Utah 2005, Chapter 205
26-8a-407, as enacted by Laws of Utah 1999, Chapter 141
26-8a-414, as last amended by Laws of Utah 2004, Chapter 350
26-8a-503, as enacted by Laws of Utah 1999, Chapter 141
26-8a-504, as enacted by Laws of Utah 1999, Chapter 141
26-15a-102, as last amended by Laws of Utah 2005, Chapter 192
26-15a-104, as last amended by Laws of Utah 2005, Chapter 192
26-15a-105, as last amended by Laws of Utah 2005, Chapter 192
26-18-3, as last amended by Laws of Utah 2006, Chapter 116
26-18-103, as enacted by Laws of Utah 1992, Chapter 273
26-18-104, as enacted by Laws of Utah 1992, Chapter 273
26-18-304, as enacted by Laws of Utah 1993, Chapter 255
26-18-504, as last amended by Laws of Utah 2006, Chapter 170
26-18a-4, as last amended by Laws of Utah 1997, Chapter 1
26-21-5, as last amended by Laws of Utah 1997, Chapter 209
26-21-9.5, as last amended by Laws of Utah 2007, Chapter 43
26-21-23, as enacted by Laws of Utah 2007, Chapter 24
26-21a-203, as last amended by Laws of Utah 2001, Chapter 286
26-21a-205, as last amended by Laws of Utah 1995, Chapter 28
26-23-2, as last amended by Laws of Utah 1988, Chapter 72
26-23b-110, as last amended by Laws of Utah 2007, Chapter 66
26-25-2, as last amended by Laws of Utah 2003, Chapter 242
26-33a-104, as last amended by Laws of Utah 2007, Chapter 29
26-35a-106, as enacted by Laws of Utah 2004, Chapter 284
26-38-9, as enacted by Laws of Utah 1994, Chapter 281
26-39-108, as enacted by Laws of Utah 1997, Chapter 196
26-39-109, as last amended by Laws of Utah 2006, Chapter 37
26-40-103, as last amended by Laws of Utah 2003, Chapter 16
26-40-110, as last amended by Laws of Utah 2001, Chapter 53
26-41-104, as last amended by Laws of Utah 2007, Chapter 37
26-42-104, as enacted by Laws of Utah 1998, Chapter 319
26-43-103, as enacted by Laws of Utah 1998, Chapter 73
26-46-102, as enacted by Laws of Utah 2002, Chapter 307
26-47-103, as enacted by Laws of Utah 2005, Chapter 273
26-48-102, as enacted by Laws of Utah 2006, Chapter 280
26A-1-108.7, as last amended by Laws of Utah 2005, Chapter 25
30-2-11, as last amended by Laws of Utah 2005, Chapter 102
30-3-11.3, as last amended by Laws of Utah 2006, Chapter 173
30-3-11.4, as enacted by Laws of Utah 2007, Chapter 301
30-3-38, as last amended by Laws of Utah 2004, Chapter 352
31A-1-103, as last amended by Laws of Utah 2005, Chapter 102
31A-1-301, as last amended by Laws of Utah 2007, Chapter 307
31A-2-201, as last amended by Laws of Utah 2005, Chapter 123
31A-2-201.1, as enacted by Laws of Utah 2000, Chapter 114
31A-2-203, as last amended by Laws of Utah 2007, Chapter 309
31A-2-203.5, as enacted by Laws of Utah 1987, Chapter 161
31A-2-204, as last amended by Laws of Utah 2007, Chapter 309
31A-2-207, as last amended by Laws of Utah 2007, Chapter 309
31A-2-209, as last amended by Laws of Utah 1991, Chapter 259
31A-2-217, as last amended by Laws of Utah 2002, Chapter 65
31A-2-302, as last amended by Laws of Utah 1991, Chapter 5
31A-2-306.5, as enacted by Laws of Utah 2003, Chapter 252
31A-2-404, as last amended by Laws of Utah 2007, Chapter 325
31A-3-101, as last amended by Laws of Utah 2005, Chapter 124
31A-3-103, as last amended by Laws of Utah 2006, Chapter 117
31A-3-304, as last amended by Laws of Utah 2006, Chapter 320
31A-4-103, as last amended by Laws of Utah 2003, Chapter 252
31A-5-204, as last amended by Laws of Utah 1996, Second Special Session, Chapter 9
31A-6a-110, as last amended by Laws of Utah 2001, Chapter 116
31A-8a-203, as enacted by Laws of Utah 2005, Chapter 58
31A-8a-210, as enacted by Laws of Utah 2005, Chapter 58
31A-12-107, as last amended by Laws of Utah 2004, Chapter 267
31A-14-217, as last amended by Laws of Utah 2007, Chapter 309
31A-17-503, as enacted by Laws of Utah 1993, Chapter 305
31A-19a-211 (Superseded 07/01/08), as renumbered and amended by Laws of Utah 1999, Chapter 130
31A-19a-211 (Effective 07/01/08), as last amended by Laws of Utah 2007, Chapter 338
31A-19a-304, as renumbered and amended by Laws of Utah 1999, Chapter 130
31A-21-109, as last amended by Laws of Utah 2004, Chapter 92
31A-22-315, as last amended by Laws of Utah 2007, Chapter 262
31A-22-320, as enacted by Laws of Utah 2002, Chapter 221
31A-22-403, as last amended by Laws of Utah 2003, Chapter 252
31A-22-409, as last amended by Laws of Utah 2005, Chapter 125
31A-22-425, as last amended by Laws of Utah 2006, Chapter 175
31A-22-614.5, as enacted by Laws of Utah 1993, Chapter 255
31A-22-625, as last amended by Laws of Utah 2002, Chapter 308
31A-22-1308, as enacted by Laws of Utah 2004, Chapter 266
31A-23a-104, as last amended by Laws of Utah 2007, Chapter 307
31A-23a-111, as last amended by Laws of Utah 2006, Chapter 312
31A-23a-112, as last amended by Laws of Utah 2006, Chapter 312
31A-23a-115, as last amended by Laws of Utah 2005, Chapter 219
31A-23a-202, as last amended by Laws of Utah 2006, Chapter 125
31A-23a-302, as last amended by Laws of Utah 2004, Chapter 173
31A-23a-402, as last amended by Laws of Utah 2007, Chapters 307, and 325
31A-23a-417, as renumbered and amended by Laws of Utah 2003, Chapter 298
31A-23a-809, as renumbered and amended by Laws of Utah 2003, Chapter 298
31A-25-202, as last amended by Laws of Utah 2007, Chapter 307
31A-25-208, as last amended by Laws of Utah 2006, Chapter 312
31A-25-209, as last amended by Laws of Utah 2006, Chapter 312
31A-26-202, as last amended by Laws of Utah 2007, Chapter 307
31A-26-206, as last amended by Laws of Utah 2006, Chapter 125
31A-26-213, as last amended by Laws of Utah 2006, Chapter 312
31A-26-214, as last amended by Laws of Utah 2006, Chapter 312
31A-27a-102, as enacted by Laws of Utah 2007, Chapter 309
31A-27a-116, as enacted by Laws of Utah 2007, Chapter 309
31A-27a-117, as enacted by Laws of Utah 2007, Chapter 309
31A-27a-514, as enacted by Laws of Utah 2007, Chapter 309
31A-27a-515, as enacted by Laws of Utah 2007, Chapter 309
31A-27a-804, as enacted by Laws of Utah 2007, Chapter 309
31A-29-106, as last amended by Laws of Utah 2004, Chapter 329
31A-29-110, as last amended by Laws of Utah 2007, Chapter 40
31A-29-111, as last amended by Laws of Utah 2007, Chapter 40
31A-29-116, as enacted by Laws of Utah 1990, Chapter 232
31A-30-106, as last amended by Laws of Utah 2004, Chapter 108
31A-30-106.7, as last amended by Laws of Utah 2002, Chapter 308
31A-31-104, as last amended by Laws of Utah 2002, Chapter 97
31A-31-106, as last amended by Laws of Utah 1995, Chapter 20
31A-31-108, as last amended by Laws of Utah 2004, Chapter 104
31A-33-104, as last amended by Laws of Utah 2006, Chapter 14
31A-33-107, as last amended by Laws of Utah 2007, Chapter 74
31A-34-104, as enacted by Laws of Utah 1996, Chapter 143
31A-35-301, as last amended by Laws of Utah 2003, Chapter 298
31A-35-401, as last amended by Laws of Utah 2003, Chapter 298
31A-35-405, as last amended by Laws of Utah 2000, Chapter 259
31A-35-406, as last amended by Laws of Utah 2000, Chapter 259
31A-35-502, as last amended by Laws of Utah 2003, Chapter 298
31A-36-104, as last amended by Laws of Utah 2007, Chapter 307
31A-36-115, as enacted by Laws of Utah 2003, Chapter 81
31A-36-117, as last amended by Laws of Utah 2007, Chapter 307
31A-36-119, as last amended by Laws of Utah 2007, Chapter 307
31A-37-106, as last amended by Laws of Utah 2004, Chapter 312
31A-37-202, as last amended by Laws of Utah 2004, Chapter 312
31A-37-503, as enacted by Laws of Utah 2003, Chapter 251
31A-37-602, as enacted by Laws of Utah 2004, Chapter 312
32A-1-115, as last amended by Laws of Utah 2007, Chapter 58
32A-1-118, as last amended by Laws of Utah 2005, Chapter 102
32A-1-119, as last amended by Laws of Utah 2007, Chapter 284
32A-1-120, as last amended by Laws of Utah 2007, Chapter 284
32A-1-603, as enacted by Laws of Utah 2007, Chapter 284
32A-4-103, as last amended by Laws of Utah 2003, Chapter 314
32A-4-203, as last amended by Laws of Utah 2003, Chapter 314
32A-4-304, as enacted by Laws of Utah 2003, Chapter 314
32A-4-403, as enacted by Laws of Utah 2003, Chapter 314
32A-4-406, as last amended by Laws of Utah 2007, Chapters 284, and 341
32A-5-103, as last amended by Laws of Utah 2003, Chapter 314
32A-6-103, as last amended by Laws of Utah 2003, Chapter 314
32A-7-103, as last amended by Laws of Utah 2003, Chapter 314
32A-8-103, as last amended by Laws of Utah 2003, Chapter 314
32A-8-503, as last amended by Laws of Utah 2004, Chapter 268
32A-9-103, as last amended by Laws of Utah 2003, Chapter 314
32A-10-203, as last amended by Laws of Utah 2003, Chapter 314
32A-10-303, as enacted by Laws of Utah 2003, Chapter 314
32A-11-103, as last amended by Laws of Utah 2003, Chapter 314
32A-15a-103, as enacted by Laws of Utah 2003, Chapter 314
32A-15a-201, as enacted by Laws of Utah 2003, Chapter 314
34-20-10, as last amended by Laws of Utah 1997, Chapter 375
34-23-104, as last amended by Laws of Utah 1997, Chapter 375
34-23-401, as last amended by Laws of Utah 1996, Chapter 240
34-28-19, as last amended by Laws of Utah 2003, Chapter 174
34-40-104, as last amended by Laws of Utah 2003, Chapter 151
34-40-105, as last amended by Laws of Utah 1997, Chapter 375
34-40-202, as last amended by Laws of Utah 1996, Chapter 240
34-41-103, as last amended by Laws of Utah 1996, Chapter 197
34A-1-104, as enacted by Laws of Utah 1997, Chapter 375
34A-1-106, as enacted by Laws of Utah 1997, Chapter 375
34A-1-302, as enacted by Laws of Utah 1997, Chapter 375
34A-1-303, as last amended by Laws of Utah 2003, Chapter 28
34A-1-304, as enacted by Laws of Utah 1997, Chapter 375
34A-1-307, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-1-309, as last amended by Laws of Utah 2001, Chapter 9
34A-1-402, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-2-111, as last amended by Laws of Utah 2006, Chapter 295
34A-2-203, as last amended by Laws of Utah 2006, Chapter 275
34A-2-205, as last amended by Laws of Utah 2000, Chapter 232
34A-2-211, as last amended by Laws of Utah 2000, Chapter 222
34A-2-407, as last amended by Laws of Utah 2006, Chapter 295
34A-2-704, as last amended by Laws of Utah 2004, Chapter 275
34A-2-801, as last amended by Laws of Utah 2006, Chapter 295
34A-5-102, as last amended by Laws of Utah 2001, Chapter 73
34A-5-107, as last amended by Laws of Utah 2003, Chapter 65
34A-5-108, as last amended by Laws of Utah 2003, Chapter 65
34A-6-103, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-6-105, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-6-202, as last amended by Laws of Utah 1997, Chapter 10 and renumbered and amended by Laws of Utah 1997, Chapter 375
34A-6-301, as last amended by Laws of Utah 2007, Chapter 153
34A-6-304, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-6-307, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-7-104, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-7-203, as enacted by Laws of Utah 1999, Chapter 53
34A-8-111, as renumbered and amended by Laws of Utah 1997, Chapter 375
34A-8-112, as renumbered and amended by Laws of Utah 1997, Chapter 375
35A-1-104, as last amended by Laws of Utah 2002, Chapter 58
35A-1-106, as enacted by Laws of Utah 1996, Chapter 240
35A-1-301, as last amended by Laws of Utah 1997, Chapter 375
35A-1-303, as enacted by Laws of Utah 1996, Chapter 240
35A-3-105, as renumbered and amended by Laws of Utah 1997, Chapter 174
35A-3-111, as last amended by Laws of Utah 2003, Chapter 90
35A-3-207, as last amended by Laws of Utah 1998, Chapter 13
35A-3-302, as last amended by Laws of Utah 2004, Chapter 29
35A-3-310, as last amended by Laws of Utah 2004, Chapter 29
35A-3-602, as renumbered and amended by Laws of Utah 2003, Chapter 90
35A-3-604, as renumbered and amended by Laws of Utah 2003, Chapter 90
35A-4-202, as last amended by Laws of Utah 2006, Chapter 22
35A-4-304, as repealed and reenacted by Laws of Utah 2005, Chapter 12
35A-4-312, as last amended by Laws of Utah 2005, Chapters 81, and 148
35A-4-401, as last amended by Laws of Utah 2007, Chapter 263
35A-4-502, as last amended by Laws of Utah 2002, Chapter 250
35A-4-503, as renumbered and amended by Laws of Utah 1996, Chapter 240
35A-5-102, as last amended by Laws of Utah 2005, Chapter 81
35A-5-202, as renumbered and amended by Laws of Utah 1997, Chapter 375
35A-7-106, as enacted by Laws of Utah 1997, Chapter 232
35A-7-107, as enacted by Laws of Utah 1997, Chapter 232
36-11-102, as last amended by Laws of Utah 2007, Chapter 233
36-11-103, as last amended by Laws of Utah 2003, Chapter 27
36-11-404, as enacted by Laws of Utah 1991, Chapter 280
36-12-13, as last amended by Laws of Utah 2007, Chapters 41, and 329
36-12-15, as last amended by Laws of Utah 2005, Chapter 84
36-23-106, as last amended by Laws of Utah 2007, Chapter 137
38-1-11, as last amended by Laws of Utah 2007, Chapter 332
38-1-27, as last amended by Laws of Utah 2007, Chapter 306
38-1-28, as last amended by Laws of Utah 2005, Chapter 140
38-1-30, as last amended by Laws of Utah 2006, Chapter 297
38-1-31, as last amended by Laws of Utah 2007, Chapter 332
38-1-39, as last amended by Laws of Utah 2007, Chapter 226
38-11-105, as last amended by Laws of Utah 2004, Chapter 42
38-11-108, as last amended by Laws of Utah 1996, Chapter 79
38-11-110, as enacted by Laws of Utah 2004, Chapter 42
38-11-201, as last amended by Laws of Utah 2002, Chapter 256
38-11-202, as last amended by Laws of Utah 2004, Chapter 42
38-11-204, as last amended by Laws of Utah 2007, Chapter 332
38-11-206, as last amended by Laws of Utah 1995, Chapters 28, and 172
38-11-207, as last amended by Laws of Utah 2001, Chapter 198
38-11-301, as last amended by Laws of Utah 2001, Chapter 198
38-11-302, as last amended by Laws of Utah 1995, Chapters 20, and 172
39-5-2, as last amended by Laws of Utah 1997, Chapter 211
39-7-119, as enacted by Laws of Utah 1997, Chapter 306
40-2-1.1, as last amended by Laws of Utah 1997, Chapter 375
40-2-15, as last amended by Laws of Utah 2007, Chapter 222
40-2-16, as last amended by Laws of Utah 2006, Chapter 5
40-6-10, as last amended by Laws of Utah 1987, Chapter 161
40-6-14.5, as last amended by Laws of Utah 2003, Chapter 88
40-8-4, as last amended by Laws of Utah 2002, Chapter 194
40-8-6, as last amended by Laws of Utah 1987, Chapter 161
40-8-7, as last amended by Laws of Utah 2003, Chapter 35
40-10-6, as last amended by Laws of Utah 1989, Chapter 22
40-10-6.5, as last amended by Laws of Utah 1994, Chapter 219
40-10-6.7, as enacted by Laws of Utah 1994, Chapter 219
40-10-13, as last amended by Laws of Utah 1997, Chapter 99
40-10-14, as last amended by Laws of Utah 1994, Chapter 219
40-10-16, as last amended by Laws of Utah 1994, Chapter 219
40-10-21, as last amended by Laws of Utah 2005, Chapter 102
40-10-30, as last amended by Laws of Utah 1994, Chapter 219
41-1a-115, as last amended by Laws of Utah 1994, Chapter 313
41-1a-116, as last amended by Laws of Utah 2004, Chapter 332
41-1a-117, as renumbered and amended by Laws of Utah 1992, Chapter 1
41-1a-119, as renumbered and amended by Laws of Utah 1992, Chapter 1
41-1a-231, as enacted by Laws of Utah 2000, Chapter 244
41-1a-301, as last amended by Laws of Utah 2003, Chapter 268
41-1a-407, as last amended by Laws of Utah 2007, Chapter 52
41-1a-416, as last amended by Laws of Utah 2001, Chapter 34
41-1a-418 (Superseded 10/01/07), as last amended by Laws of Utah 2007, Chapter 173
41-1a-418 (Effective 10/01/07), as last amended by Laws of Utah 2007, Chapters 173, 217, and 325
41-1a-419, as last amended by Laws of Utah 2007, Chapter 376
41-1a-420, as last amended by Laws of Utah 2005, Chapter 207
41-1a-422 (Superseded 10/01/07), as last amended by Laws of Utah 2007, Chapters 173, and 179
41-1a-422 (Effective 10/01/07), as last amended by Laws of Utah 2007, Chapters 173, 179, and 325
41-1a-522, as last amended by Laws of Utah 1994, Chapter 175
41-1a-712, as enacted by Laws of Utah 2003, Chapter 250
41-1a-1007, as last amended by Laws of Utah 1995, Chapter 28
41-1a-1010, as last amended by Laws of Utah 1995, Chapter 28
41-1a-1101, as last amended by Laws of Utah 2005, Chapters 2, and 56
41-1a-1211, as last amended by Laws of Utah 2007, Chapter 274
41-1a-1212, as last amended by Laws of Utah 1995, Chapter 28
41-1a-1221, as last amended by Laws of Utah 2007, Chapter 281
41-3-105, as last amended by Laws of Utah 2005, Chapter 57
41-3-109, as last amended by Laws of Utah 1992, Chapter 1 and renumbered and amended by Laws of Utah 1992, Chapter 234
41-3-202, as last amended by Laws of Utah 2003, Chapter 157
41-3-209, as last amended by Laws of Utah 2005, Chapter 144
41-3-301, as last amended by Laws of Utah 2006, Chapter 252
41-3-302, as last amended by Laws of Utah 2006, Chapter 252
41-3-304, as last amended by Laws of Utah 2001, First Special Session, Chapter 12
41-3-306, as enacted by Laws of Utah 2001, First Special Session, Chapter 12
41-3-601, as last amended by Laws of Utah 2007, Chapter 185
41-3-604, as last amended by Laws of Utah 2007, Chapter 281
41-6a-212, as last amended by Laws of Utah 2007, Chapter 52
41-6a-301, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-303, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-403 (Superseded 07/01/08), as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-403 (Effective 07/01/08), as last amended by Laws of Utah 2007, Chapter 338
41-6a-404, as last amended by Laws of Utah 2007, Chapter 312
41-6a-514, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-518, as last amended by Laws of Utah 2006, Chapter 341
41-6a-702, as last amended by Laws of Utah 2005, Chapter 108 and renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1304, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1307, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1406, as last amended by Laws of Utah 2005, Chapter 56 and renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1601, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1617, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1636, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-6a-1639, as renumbered and amended by Laws of Utah 2005, Chapter 2
41-12a-201, as last amended by Laws of Utah 1987, Chapter 161
41-12a-202, as last amended by Laws of Utah 2005, Chapter 2
41-12a-407, as last amended by Laws of Utah 2005, Chapter 102
41-12a-803, as last amended by Laws of Utah 2007, Chapter 262
41-12a-805, as last amended by Laws of Utah 2003, Chapter 32
41-22-5.1, as last amended by Laws of Utah 2006, Chapter 160
41-22-10.7, as last amended by Laws of Utah 2002, Chapter 148
41-22-19.5 (Effective 10/01/07), as enacted by Laws of Utah 2007, Chapter 299
41-22-29, as last amended by Laws of Utah 2007, Chapter 306
41-22-31, as last amended by Laws of Utah 2005, Chapter 102
41-22-35, as last amended by Laws of Utah 2004, Chapter 314
41-22-36, as last amended by Laws of Utah 2007, Chapter 281
42-2-10, as last amended by Laws of Utah 1994, Chapter 313
42-3-2, as last amended by Laws of Utah 1997, Chapter 82
42-3-4, as last amended by Laws of Utah 1997, Chapter 82
46-1-3, as last amended by Laws of Utah 2003, Chapter 136
46-4-501, as last amended by Laws of Utah 2005, Chapter 169
46-4-503, as last amended by Laws of Utah 2005, Chapters 148, and 169
48-1-42, as last amended by Laws of Utah 2005, Chapter 71
48-2a-203.5, as last amended by Laws of Utah 2000, Chapter 131
48-2a-206, as last amended by Laws of Utah 1995, Chapter 28
48-2a-1107, as last amended by Laws of Utah 1995, Chapter 28
48-2c-214, as enacted by Laws of Utah 2001, Chapter 260
48-2c-1209, as enacted by Laws of Utah 2001, Chapter 260
49-11-613, as last amended by Laws of Utah 2007, Chapter 130
49-14-201, as last amended by Laws of Utah 2006, Chapter 139
49-15-201, as last amended by Laws of Utah 2006, Chapter 139
51-2a-301, as enacted by Laws of Utah 2004, Chapter 206
51-5-7, as last amended by Laws of Utah 2002, Chapter 256
52-4-203, as last amended by Laws of Utah 2007, Chapters 35, 204, and 329
52-4-206, as last amended by Laws of Utah 2006, Chapter 263 and renumbered and amended by Laws of Utah 2006, Chapter 14
52-4-304, as renumbered and amended by Laws of Utah 2006, Chapter 14
53-1-105, as last amended by Laws of Utah 2006, Chapter 14
53-1-106, as last amended by Laws of Utah 2007, Chapter 60
53-1-108, as last amended by Laws of Utah 2005, Chapter 2
53-1-110, as last amended by Laws of Utah 1995, Chapter 28
53-1-117, as last amended by Laws of Utah 2000, Chapter 334
53-2-102, as last amended by Laws of Utah 2007, Chapter 66
53-2-102.5, as last amended by Laws of Utah 2007, Chapters 245, and 328
53-2-104, as last amended by Laws of Utah 2007, Chapter 328
53-2-105, as renumbered and amended by Laws of Utah 1993, Chapter 234
53-2-106, as renumbered and amended by Laws of Utah 1993, Chapter 234
53-2-107, as last amended by Laws of Utah 2005, Chapter 71
53-2-110, as enacted by Laws of Utah 2005, Chapter 214
53-2-402, as enacted by Laws of Utah 2007, Chapter 328
53-2-403, as enacted by Laws of Utah 2007, Chapter 328
53-2-404, as enacted by Laws of Utah 2007, Chapter 328
53-2-509, as enacted by Laws of Utah 2007, Chapter 331
53-3-104, as last amended by Laws of Utah 2006, Chapter 201
53-3-106, as last amended by Laws of Utah 2007, Chapter 261
53-3-109, as last amended by Laws of Utah 2006, Chapters 230, and 298
53-3-205, as last amended by Laws of Utah 2007, Chapters 60, and 173
53-3-221 (Superseded 07/01/08), as last amended by Laws of Utah 2007, Chapter 53
53-3-221 (Effective 07/01/08), as last amended by Laws of Utah 2007, Chapters 53, and 338
53-3-221.5 (Effective 07/01/08), as enacted by Laws of Utah 2007, Chapter 338
53-3-303.5, as last amended by Laws of Utah 2001, Chapters 31, and 85
53-3-304, as renumbered and amended by Laws of Utah 1993, Chapter 234
53-3-505, as last amended by Laws of Utah 2003, Chapter 121
53-3-506, as last amended by Laws of Utah 2006, Chapter 266
53-3-510, as enacted by Laws of Utah 2000, Chapter 239
53-3-805, as last amended by Laws of Utah 2007, Chapters 60, and 173
53-3-903, as last amended by Laws of Utah 1994, Chapter 12
53-5-704, as last amended by Laws of Utah 2006, Chapter 144
53-5-705, as last amended by Laws of Utah 2005, Chapter 282
53-5-708, as last amended by Laws of Utah 2002, Chapter 97
53-6-105, as last amended by Laws of Utah 1995, Chapter 134
53-6-213, as last amended by Laws of Utah 2002, Chapter 256
53-7-204, as last amended by Laws of Utah 2007, Chapter 96
53-7-204.2, as last amended by Laws of Utah 2003, Chapter 252
53-7-216, as last amended by Laws of Utah 1995, Chapter 28
53-7-225.5, as enacted by Laws of Utah 2003, Chapter 103
53-7-225.6, as enacted by Laws of Utah 2006, Chapter 318
53-7-314, as last amended by Laws of Utah 1995, Chapter 28
53-7-407 (Effective 07/01/08), as enacted by Laws of Utah 2007, Chapter 362
53-8-204, as last amended by Laws of Utah 2002, Chapter 143
53-8-211, as last amended by Laws of Utah 1999, Chapter 91
53-9-103, as last amended by Laws of Utah 2007, Chapter 290
53-9-108, as last amended by Laws of Utah 2007, Chapter 290
53-9-113, as last amended by Laws of Utah 1998, Chapter 212
53-9-115, as last amended by Laws of Utah 1998, Chapter 212
53-9-118, as last amended by Laws of Utah 1998, Chapters 212, and 282
53-10-108, as last amended by Laws of Utah 2004, Chapter 122
53-10-406, as last amended by Laws of Utah 2003, Chapter 120
53-10-602, as enacted by Laws of Utah 2004, Chapter 313
53-11-103, as enacted by Laws of Utah 1998, Chapter 257
53-11-118, as enacted by Laws of Utah 1998, Chapter 257
53-11-119, as last amended by Laws of Utah 1999, Chapter 21
53-13-106, as last amended by Laws of Utah 2004, Chapters 156, and 208
53A-1-402.5, as enacted by Laws of Utah 2000, Chapter 276
53A-1-408, as enacted by Laws of Utah 2002, Chapter 259
53A-1-611, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 7
53A-1-612, as last amended by Laws of Utah 2007, Chapter 244
53A-1-706, as last amended by Laws of Utah 2007, Chapter 306
53A-1a-508, as last amended by Laws of Utah 2007, Chapter 344
53A-1a-509, as last amended by Laws of Utah 2005, Chapter 291
53A-1a-510, as last amended by Laws of Utah 2007, Chapter 344
53A-1a-511, as last amended by Laws of Utah 2007, Chapter 349
53A-1a-513, as last amended by Laws of Utah 2005, Chapters 9, and 291
53A-1a-601, as last amended by Laws of Utah 2007, Chapter 115
53A-1a-602, as last amended by Laws of Utah 2007, Chapter 115
53A-1a-707, as enacted by Laws of Utah 2005, Chapter 35
53A-1a-808, as enacted by Laws of Utah 2007, Chapter 30
53A-1a-902, as enacted by Laws of Utah 2007, Chapter 386
53A-2-123, as last amended by Laws of Utah 2007, Chapter 329
53A-2-206, as last amended by Laws of Utah 2007, Chapter 372
53A-3-303, as enacted by Laws of Utah 1988, Chapter 2
53A-3-402.11, as last amended by Laws of Utah 2002, Chapter 210
53A-3-424, as last amended by Laws of Utah 2002, Chapter 210
53A-3-702, as enacted by Laws of Utah 2004, Chapter 328
53A-6-103, as last amended by Laws of Utah 2004, Chapter 19
53A-6-105, as last amended by Laws of Utah 2004, Chapter 19
53A-6-112, as enacted by Laws of Utah 2006, Chapter 149
53A-6-503, as enacted by Laws of Utah 2000, Chapter 226
53A-11-102.5, as last amended by Laws of Utah 2007, Chapter 81
53A-12-103, as last amended by Laws of Utah 2005, Chapter 119
53A-13-101.6, as last amended by Laws of Utah 2003, Chapter 57
53A-13-106, as last amended by Laws of Utah 1998, Chapters 278, and 282
53A-13-201, as last amended by Laws of Utah 2006, Chapter 201
53A-13-208, as last amended by Laws of Utah 2006, Chapter 201
53A-13-209, as enacted by Laws of Utah 2003, Chapter 23
53A-15-101.5, as enacted by Laws of Utah 2001, Chapter 99
53A-15-104, as enacted by Laws of Utah 2007, Chapter 221
53A-16-101.5, as last amended by Laws of Utah 2005, Chapter 166
53A-17a-105, as last amended by Laws of Utah 1994, Chapter 268
53A-17a-107, as last amended by Laws of Utah 2007, Chapter 306
53A-17a-111, as last amended by Laws of Utah 2003, Chapter 320
53A-17a-120, as last amended by Laws of Utah 2007, Chapter 368
53A-17a-121, as last amended by Laws of Utah 2003, Chapter 320
53A-17a-131.9, as last amended by Laws of Utah 2002, Chapters 258, and 279
53A-17a-131.15, as last amended by Laws of Utah 2003, Chapter 320
53A-17a-131.17, as last amended by Laws of Utah 2005, Chapter 166
53A-17a-153, as enacted by Laws of Utah 2007, Chapter 380
53A-19-105, as last amended by Laws of Utah 2003, Chapter 122
53A-20-101, as last amended by Laws of Utah 2005, Chapter 25
53A-20c-102, as enacted by Laws of Utah 2007, Chapter 335
53A-21-103, as last amended by Laws of Utah 2003, Chapter 320
53A-21-103.5, as last amended by Laws of Utah 2005, Chapters 171, and 184
53A-24-114, as last amended by Laws of Utah 2006, Chapter 139
53A-26a-302, as last amended by Laws of Utah 1995, Chapter 28
53B-2-107, as enacted by Laws of Utah 2002, Chapter 315
53B-2-108, as enacted by Laws of Utah 2002, Fifth Special Session, Chapter 22
53B-6-105, as enacted by Laws of Utah 2001, Chapter 238
53B-6-105.7, as enacted by Laws of Utah 2001, Chapter 238
53B-6-105.9, as last amended by Laws of Utah 2002, Chapter 210
53B-6-106, as enacted by Laws of Utah 2005, Chapter 147
53B-7-502, as last amended by Laws of Utah 2007, Chapters 247, and 356
53B-12-101, as last amended by Laws of Utah 2005, Chapter 81
53B-16-302, as last amended by Laws of Utah 2005, Chapter 201
53B-16-303, as enacted by Laws of Utah 1992, Chapter 280
53B-16-304, as last amended by Laws of Utah 2005, Chapter 201
53B-16-305, as enacted by Laws of Utah 1992, Chapter 280
53B-17-603, as last amended by Laws of Utah 1994, Chapter 294
53C-1-201, as last amended by Laws of Utah 2007, Chapter 306
53C-1-202, as last amended by Laws of Utah 2003, Chapter 192
53C-1-304, as last amended by Laws of Utah 1997, Chapter 72
53C-2-201, as last amended by Laws of Utah 2004, Chapter 63
54-1-2.5, as enacted by Laws of Utah 1987, Chapter 161
54-3-28, as last amended by Laws of Utah 2007, Chapter 329
54-5-1.5, as last amended by Laws of Utah 2001, Chapter 212
54-7-15, as last amended by Laws of Utah 2003, Chapter 200
54-8b-2.1, as enacted by Laws of Utah 1995, Chapter 269
54-8b-10, as last amended by Laws of Utah 2007, Chapter 68
54-14-104, as enacted by Laws of Utah 1997, Chapter 197
54-14-307, as enacted by Laws of Utah 1997, Chapter 197
54-17-102, as enacted by Laws of Utah 2005, Chapter 11
54-17-103, as enacted by Laws of Utah 2005, Chapter 11
54-17-201, as last amended by Laws of Utah 2007, Chapter 289
54-17-202, as enacted by Laws of Utah 2005, Chapter 11
54-17-203, as enacted by Laws of Utah 2005, Chapter 11
54-17-301, as enacted by Laws of Utah 2005, Chapter 11
54-17-302, as last amended by Laws of Utah 2007, Chapter 289
54-17-304, as enacted by Laws of Utah 2005, Chapter 11
54-17-401, as enacted by Laws of Utah 2005, Chapter 11
54-17-402, as enacted by Laws of Utah 2005, Chapter 11
54-17-404, as enacted by Laws of Utah 2005, Chapter 11
54-17-501, as enacted by Laws of Utah 2007, Chapter 289
56-1-22.5, as enacted by Laws of Utah 1987, Chapter 161
56-2-8, as last amended by Laws of Utah 1987, Chapter 161
57-11-3.5, as enacted by Laws of Utah 1987, Chapter 161
57-11-10, as last amended by Laws of Utah 1990, Chapter 199
57-11-13, as repealed and reenacted by Laws of Utah 1991, Chapter 165
57-11-14, as last amended by Laws of Utah 1991, Chapter 165
57-12-9, as last amended by Laws of Utah 2004, Chapter 223
57-19-20, as last amended by Laws of Utah 1991, Chapter 165
57-21-2, as last amended by Laws of Utah 1997, Chapter 375
57-21-8, as last amended by Laws of Utah 1999, Chapter 82
57-21-9, as last amended by Laws of Utah 1999, Chapters 82, and 160
57-21-10, as last amended by Laws of Utah 1999, Chapter 160
57-23-8, as enacted by Laws of Utah 1992, Chapter 169
57-24-101, as enacted by Laws of Utah 2004, Chapter 44
57-25-109, as enacted by Laws of Utah 2006, Chapter 51
58-1-106, as last amended by Laws of Utah 2003, Chapter 54
58-1-108, as enacted by Laws of Utah 1993, Chapter 297
58-1-109, as enacted by Laws of Utah 1993, Chapter 297
58-1-301, as last amended by Laws of Utah 2004, Chapter 90
58-1-308, as last amended by Laws of Utah 2003, Chapter 43
58-1-402, as last amended by Laws of Utah 1996, Chapter 243
58-1-404, as last amended by Laws of Utah 2006, Chapter 14
58-3a-103, as last amended by Laws of Utah 2002, Chapter 256
58-3a-302, as enacted by Laws of Utah 1996, Chapter 260
58-3a-502, as last amended by Laws of Utah 1997, Chapter 10
58-5a-302, as last amended by Laws of Utah 1995, Chapter 28
58-9-302, as last amended by Laws of Utah 2007, Chapter 144
58-9-504, as enacted by Laws of Utah 2003, Chapter 49
58-9-701, as last amended by Laws of Utah 2007, Chapter 144
58-11a-102, as last amended by Laws of Utah 2007, Chapter 209
58-11a-302, as last amended by Laws of Utah 2007, Chapter 209
58-11a-503, as last amended by Laws of Utah 2007, Chapter 209
58-13-5, as enacted by Laws of Utah 1996, Chapter 248
58-15-4, as last amended by Laws of Utah 1994, Chapter 313
58-16a-302, as last amended by Laws of Utah 2001, Chapter 268
58-17b-303, as last amended by Laws of Utah 2005, Chapter 160
58-17b-304, as last amended by Laws of Utah 2007, Chapter 279
58-17b-305, as enacted by Laws of Utah 2004, Chapter 280
58-17b-306, as enacted by Laws of Utah 2004, Chapter 280
58-17b-307, as enacted by Laws of Utah 2004, Chapter 280
58-17b-504, as last amended by Laws of Utah 2007, Chapters 279, and 306
58-17b-701, as enacted by Laws of Utah 2004, Chapter 280
58-20a-302, as last amended by Laws of Utah 1996, Chapter 191
58-22-103, as last amended by Laws of Utah 2002, Chapter 256
58-22-302, as last amended by Laws of Utah 2003, Chapter 50
58-22-503, as last amended by Laws of Utah 1997, Chapter 10
58-26a-102, as enacted by Laws of Utah 2000, Chapter 261
58-26a-302, as enacted by Laws of Utah 2000, Chapter 261
58-26a-306, as last amended by Laws of Utah 2003, Chapter 52
58-26a-307, as enacted by Laws of Utah 2000, Chapter 261
58-28-302, as renumbered and amended by Laws of Utah 2006, Chapter 109
58-28-503, as enacted by Laws of Utah 2006, Chapter 109
58-31b-102, as last amended by Laws of Utah 2007, Chapter 57
58-31b-301.6, as enacted by Laws of Utah 2006, Chapter 291
58-31b-302, as last amended by Laws of Utah 2007, Chapters 49, and 57
58-31b-304, as last amended by Laws of Utah 2006, Chapter 291
58-31b-305, as last amended by Laws of Utah 2007, Chapter 57
58-31b-401, as last amended by Laws of Utah 2006, Chapter 291
58-31b-402, as last amended by Laws of Utah 2002, Chapter 290
58-31b-601, as last amended by Laws of Utah 2006, Chapter 291
58-37-2, as last amended by Laws of Utah 2006, Chapter 8
58-37-6, as last amended by Laws of Utah 2006, Chapters 21, and 281
58-37-21, as enacted by Laws of Utah 1995, Chapter 163
58-37c-3, as last amended by Laws of Utah 2000, Chapters 271, and 272
58-37c-6, as repealed and reenacted by Laws of Utah 1992, Chapter 155
58-37c-8, as last amended by Laws of Utah 2007, Chapter 358
58-37c-14, as enacted by Laws of Utah 1992, Chapter 155
58-39a-5, as last amended by Laws of Utah 1994, Chapter 313
58-40-5, as last amended by Laws of Utah 2004, Chapter 11
58-40a-302, as enacted by Laws of Utah 2006, Chapter 206
58-40a-304, as enacted by Laws of Utah 2006, Chapter 206
58-41-5, as last amended by Laws of Utah 1994, Chapter 313
58-41-13, as last amended by Laws of Utah 1994, Chapter 313
58-42a-302, as last amended by Laws of Utah 2004, Chapter 9
58-44a-102, as last amended by Laws of Utah 1998, Chapter 288
58-44a-302, as last amended by Laws of Utah 2007, Chapter 57
58-44a-402, as enacted by Laws of Utah 1998, Chapter 288
58-46a-302, as last amended by Laws of Utah 2002, Chapter 50
58-47b-302, as last amended by Laws of Utah 2000, Chapter 309
58-53-103, as last amended by Laws of Utah 2002, Chapter 256
58-53-302, as renumbered and amended by Laws of Utah 1998, Chapter 191
58-53-502, as renumbered and amended by Laws of Utah 1998, Chapter 191
58-54-2, as last amended by Laws of Utah 1996, Chapter 232
58-54-5, as last amended by Laws of Utah 1994, Chapters 163, and 313
58-55-103, as last amended by Laws of Utah 2004, Chapters 61, and 90
58-55-302, as last amended by Laws of Utah 2006, Chapter 122
58-55-307, as last amended by Laws of Utah 2002, Chapter 241
58-55-308, as last amended by Laws of Utah 2006, Chapter 73
58-55-503, as last amended by Laws of Utah 2007, Chapter 98
58-56-4, as last amended by Laws of Utah 2005, Chapter 254
58-56-7, as last amended by Laws of Utah 2002, Chapter 75
58-56-9.3, as enacted by Laws of Utah 2007, Chapter 145
58-56-9.5, as enacted by Laws of Utah 2007, Chapter 145
58-56-16, as last amended by Laws of Utah 1999, Chapter 42
58-57-4, as last amended by Laws of Utah 2006, Chapter 106
58-57-14, as enacted by Laws of Utah 2006, Chapter 106
58-59-302, as last amended by Laws of Utah 2007, Chapter 134
58-59-302.5, as enacted by Laws of Utah 2007, Chapter 134
58-59-303, as last amended by Laws of Utah 2003, Chapter 260
58-59-308, as last amended by Laws of Utah 2005, Chapter 102
58-60-115, as last amended by Laws of Utah 2003, Chapter 201
58-60-117, as last amended by Laws of Utah 2004, Chapter 143
58-60-205, as last amended by Laws of Utah 2003, Chapter 201
58-60-305, as last amended by Laws of Utah 2001, Chapter 281
58-60-405, as last amended by Laws of Utah 2001, Chapter 281
58-60-506, as last amended by Laws of Utah 2007, Chapter 283
58-61-304, as last amended by Laws of Utah 2007, Chapter 387
58-63-302, as last amended by Laws of Utah 2005, Chapter 81
58-63-304, as last amended by Laws of Utah 2005, Chapter 307
58-63-503, as enacted by Laws of Utah 2003, Chapter 308
58-64-302, as enacted by Laws of Utah 1995, Chapter 215
58-67-102, as last amended by Laws of Utah 2000, Chapter 1
58-67-302, as last amended by Laws of Utah 2006, Chapter 53
58-67-402, as enacted by Laws of Utah 1996, Chapter 248
58-67-601, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
58-68-102, as last amended by Laws of Utah 2000, Chapter 1
58-68-302, as last amended by Laws of Utah 2006, Chapter 53
58-68-402, as enacted by Laws of Utah 1996, Chapter 248
58-68-601, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
58-69-302, as last amended by Laws of Utah 1998, Chapter 206
58-69-601, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
58-70a-302, as enacted by Laws of Utah 1997, Chapter 229
58-71-102, as last amended by Laws of Utah 2004, Chapter 280
58-71-302, as last amended by Laws of Utah 2005, Chapter 17
58-71-402, as enacted by Laws of Utah 1996, Chapter 282
58-71-601, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
58-72-302, as last amended by Laws of Utah 2007, Chapter 90
58-73-302, as last amended by Laws of Utah 1996, Chapter 175 and renumbered and amended by Laws of Utah 1996, Chapter 253
58-73-701, as last amended by Laws of Utah 2005, Chapter 102
58-74-302, as last amended by Laws of Utah 2004, Chapter 77
58-75-102, as enacted by Laws of Utah 2001, Chapter 100
58-75-302, as last amended by Laws of Utah 2002, Chapter 305
58-76-103, as enacted by Laws of Utah 2002, Chapter 218
58-76-302, as enacted by Laws of Utah 2002, Chapter 218
58-76-502, as last amended by Laws of Utah 2003, Chapter 131
58-77-302, as enacted by Laws of Utah 2005, Chapter 299
59-1-210 (Superseded 01/01/08), as last amended by Laws of Utah 1995, Chapter 271
59-1-210 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-1-302, as last amended by Laws of Utah 2005, Chapter 198
59-1-304, as enacted by Laws of Utah 2004, Chapter 84
59-1-305, as enacted by Laws of Utah 2007, Chapter 281
59-1-401, as last amended by Laws of Utah 2007, Chapters 175, and 269
59-1-403, as last amended by Laws of Utah 2007, Chapter 250
59-1-404, as last amended by Laws of Utah 2007, Chapter 230
59-1-502.5, as last amended by Laws of Utah 1995, Chapter 55
59-1-601, as last amended by Laws of Utah 1998, Chapter 326
59-1-602, as last amended by Laws of Utah 1998, Chapter 326
59-1-610, as enacted by Laws of Utah 1993, Chapter 248
59-1-1302, as enacted by Laws of Utah 2006, Chapter 237
59-1-1303, as enacted by Laws of Utah 2006, Chapter 237
59-1-1306, as enacted by Laws of Utah 2006, Chapter 237
59-1-1307, as enacted by Laws of Utah 2006, Chapter 237
59-2-102, as last amended by Laws of Utah 2007, Chapters 107, 234, and 329
59-2-103.5, as enacted by Laws of Utah 2002, Chapter 169
59-2-107, as enacted by Laws of Utah 2004, Chapter 303
59-2-202, as last amended by Laws of Utah 1999, Chapter 71
59-2-207, as last amended by Laws of Utah 1999, Chapter 71
59-2-307, as last amended by Laws of Utah 2006, Chapter 39
59-2-309, as last amended by Laws of Utah 1992, Chapter 237
59-2-405.2, as last amended by Laws of Utah 2006, Fifth Special Session, Chapter 3
59-2-406, as last amended by Laws of Utah 2005, Chapters 217, and 244
59-2-503, as last amended by Laws of Utah 2003, Chapter 208
59-2-703, as last amended by Laws of Utah 2001, Chapter 214
59-2-704.5, as enacted by Laws of Utah 1993, Chapter 243
59-2-801, as last amended by Laws of Utah 1999, Chapter 134
59-2-924, as last amended by Laws of Utah 2007, Chapters 107, and 329
59-2-1004, as last amended by Laws of Utah 2001, Chapter 106
59-2-1004.5, as enacted by Laws of Utah 2005, Chapter 182
59-2-1004.6, as enacted by Laws of Utah 2005, Chapter 53
59-2-1007, as last amended by Laws of Utah 2007, Chapter 119
59-2-1102, as last amended by Laws of Utah 2005, Chapter 19
59-2-1105 (Superseded 01/01/08), as last amended by Laws of Utah 2004, Chapter 333
59-2-1105 (Effective 01/01/08), as last amended by Laws of Utah 2006, Chapter 114
59-2-1115, as last amended by Laws of Utah 2007, Chapter 8
59-2-1202, as last amended by Laws of Utah 2006, Chapter 363
59-5-101, as last amended by Laws of Utah 2006, Chapter 346
59-5-110, as repealed and reenacted by Laws of Utah 1988, Chapter 4
59-5-203, as last amended by Laws of Utah 2005, Chapter 238
59-5-204, as last amended by Laws of Utah 1988, Chapter 183
59-5-210, as enacted by Laws of Utah 1988, Chapter 4
59-6-104, as last amended by Laws of Utah 1988, Chapter 3
59-7-101, as last amended by Laws of Utah 2004, Chapter 54
59-7-311, as last amended by Laws of Utah 2005, Chapter 225
59-7-610, as last amended by Laws of Utah 2005, Chapter 148
59-7-612 (Superseded 01/01/08), as last amended by Laws of Utah 2001, Chapter 9
59-7-612 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-7-613, as last amended by Laws of Utah 1999, Chapter 59
59-7-614.1, as last amended by Laws of Utah 2007, Chapter 122
59-7-703, as last amended by Laws of Utah 2006, Chapter 223
59-8-106, as last amended by Laws of Utah 1988, Chapter 169
59-8a-106 (Contingently Repealed), No change since 1953
59-10-103, as last amended by Laws of Utah 2006, Fourth Special Session, Chapter 2
59-10-114, as last amended by Laws of Utah 2007, Chapter 100
59-10-115, as last amended by Laws of Utah 2006, Fourth Special Session, Chapter 2
59-10-116, as last amended by Laws of Utah 2006, Fourth Special Session, Chapter 2
59-10-117, as last amended by Laws of Utah 2006, Fourth Special Session, Chapter 2
59-10-202, as last amended by Laws of Utah 2007, Chapter 100
59-10-209.1, as enacted by Laws of Utah 2006, Chapter 223
59-10-210, as last amended by Laws of Utah 2006, Chapter 223
59-10-405.5, as last amended by Laws of Utah 2006, Chapter 322
59-10-514, as last amended by Laws of Utah 2007, Chapter 28
59-10-514.1, as enacted by Laws of Utah 2005, Chapter 121
59-10-549, as last amended by Laws of Utah 2005, Chapter 208
59-10-1007, as renumbered and amended by Laws of Utah 2006, Chapter 223
59-10-1012 (Superseded 01/01/08), as renumbered and amended by Laws of Utah 2006, Chapter 223
59-10-1012 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-10-1013, as renumbered and amended by Laws of Utah 2006, Chapter 223
59-10-1015, as renumbered and amended by Laws of Utah 2006, Chapter 223
59-10-1105, as last amended by Laws of Utah 2007, Chapter 122
59-10-1205, as enacted by Laws of Utah 2006, Fourth Special Session, Chapter 2
59-11-113, as last amended by Laws of Utah 1998, Chapter 299
59-12-102 (Superseded 01/01/08), as last amended by Laws of Utah 2007, Chapters 9, 214, and 224
59-12-102 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapters 9, 214, 224, and 288
59-12-104 (Superseded 01/01/08), as last amended by Laws of Utah 2007, Chapters 76, 195, 214, 224, 295, and 329
59-12-104 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapters 76, 195, 214, 224, 288, 295, and 329
59-12-104.1, as last amended by Laws of Utah 2003, Chapter 312
59-12-106, as last amended by Laws of Utah 2006, Chapter 322
59-12-107, as last amended by Laws of Utah 2006, Chapter 253
59-12-107.1, as last amended by Laws of Utah 2006, Chapter 253
59-12-108, as last amended by Laws of Utah 2007, Chapter 9
59-12-110, as last amended by Laws of Utah 2006, Chapter 253
59-12-114, as last amended by Laws of Utah 1997, Chapter 328
59-12-207, as last amended by Laws of Utah 2006, Chapter 253
59-12-208.1, as last amended by Laws of Utah 2004, Chapter 255
59-12-209, as enacted by Laws of Utah 1994, Chapter 259
59-12-210, as last amended by Laws of Utah 2006, Chapter 253
59-12-301, as last amended by Laws of Utah 2007, Chapter 3
59-12-403 (Superseded 01/01/08), as last amended by Laws of Utah 2006, Chapter 253
59-12-403 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-12-504 (Superseded 01/01/08), as last amended by Laws of Utah 2006, Chapter 253
59-12-504 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-12-703 (Superseded 01/01/08), as last amended by Laws of Utah 2006, Chapter 253
59-12-703 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-12-806, as last amended by Laws of Utah 2004, Chapter 255
59-12-902, as last amended by Laws of Utah 2004, Chapter 18
59-12-1001 (Superseded 01/01/08), as last amended by Laws of Utah 2007, Chapter 329
59-12-1001 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapters 288, and 329
59-12-1102, as last amended by Laws of Utah 2006, Chapter 253
59-12-1302 (Superseded 01/01/08), as last amended by Laws of Utah 2006, Chapter 253
59-12-1302 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-12-1402 (Superseded 01/01/08), as last amended by Laws of Utah 2006, Chapter 253
59-12-1402 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapter 288
59-12-1503 (Superseded 01/01/08), as last amended by Laws of Utah 2007, Chapters 10, 202, and 329
59-12-1503 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapters 10, 202, 288, and 329
59-12-1703 (Superseded 01/01/08), as last amended by Laws of Utah 2007, Chapters 201, and 329
59-12-1703 (Effective 01/01/08), as last amended by Laws of Utah 2007, Chapters 201, 288, and 329
59-12-1803 (Effective 01/01/08), as enacted by Laws of Utah 2007, Chapter 288
59-13-201, as last amended by Laws of Utah 2004, Chapter 237
59-13-201.5, as enacted by Laws of Utah 2000, Chapter 258
59-13-202.5, as last amended by Laws of Utah 2003, Chapter 178
59-13-203.1, as last amended by Laws of Utah 2007, Chapter 194
59-13-301, as last amended by Laws of Utah 2003, Chapters 7, and 268
59-13-301.5, as last amended by Laws of Utah 2001, Chapter 9
59-13-302, as last amended by Laws of Utah 2007, Chapter 194
59-13-322, as last amended by Laws of Utah 2003, Chapter 178
59-13-404, as enacted by Laws of Utah 2001, Chapter 235
59-13-502, as enacted by Laws of Utah 1990, Chapter 11
59-14-204, as last amended by Laws of Utah 2007, Chapter 6
59-14-407, as last amended by Laws of Utah 2002, Chapters 52, and 175
59-14-409, as enacted by Laws of Utah 2005, Chapter 135
59-14-603, as enacted by Laws of Utah 2005, Chapter 204
59-19-105, as last amended by Laws of Utah 1989, Chapter 242
59-21-2, as last amended by Laws of Utah 2007, Chapter 303
59-24-108, as enacted by Laws of Utah 2001, Chapter 314
59-25-108, as enacted by Laws of Utah 2003, Chapter 295
59-26-106, as enacted by Laws of Utah 2004, Chapter 300
59-26-108, as enacted by Laws of Utah 2004, Chapter 300
59-27-104, as enacted by Laws of Utah 2004, Chapter 214
61-1-4, as last amended by Laws of Utah 2004, Chapter 90
61-1-6, as last amended by Laws of Utah 2003, Chapter 36
61-1-11.1, as enacted by Laws of Utah 2003, Chapter 245
61-1-12, as last amended by Laws of Utah 1990, Chapter 133
61-1-13, as last amended by Laws of Utah 2007, Chapters 292, and 307
61-1-14, as last amended by Laws of Utah 1997, Chapter 160
61-1-15.5, as enacted by Laws of Utah 1997, Chapter 160
61-1-18.4, as last amended by Laws of Utah 1994, Chapter 313
61-1-18.6, as enacted by Laws of Utah 1987, Chapter 161
61-1-18.7, as last amended by Laws of Utah 2002, Chapter 256
61-1-23, as last amended by Laws of Utah 1990, Chapter 133
61-2-5.1, as last amended by Laws of Utah 1997, Chapter 351
61-2-6, as last amended by Laws of Utah 2007, Chapter 325
61-2-7.1, as last amended by Laws of Utah 2005, Chapter 199
61-2-9, as last amended by Laws of Utah 2007, Chapter 325
61-2-10, as last amended by Laws of Utah 1996, Chapter 102
61-2-12, as last amended by Laws of Utah 2007, Chapter 325
61-2-21, as last amended by Laws of Utah 2007, Chapter 325
61-2-26, as enacted by Laws of Utah 2005, Chapter 257
61-2-28 (Effective 10/01/07), as enacted by Laws of Utah 2007, Chapter 325
61-2b-2, as last amended by Laws of Utah 2005, Chapter 199
61-2b-6, as last amended by Laws of Utah 2005, Chapter 199
61-2b-8, as last amended by Laws of Utah 2005, Chapter 199
61-2b-18, as last amended by Laws of Utah 2005, Chapter 199
61-2b-21, as last amended by Laws of Utah 2005, Chapter 199
61-2b-22, as last amended by Laws of Utah 2005, Chapter 199
61-2b-27, as last amended by Laws of Utah 2005, Chapter 199
61-2b-28, as last amended by Laws of Utah 2007, Chapter 325
61-2b-30, as enacted by Laws of Utah 1990, Chapter 212
61-2b-37, as last amended by Laws of Utah 1995, Chapter 28
61-2c-102, as last amended by Laws of Utah 2007, Chapter 325
61-2c-103, as last amended by Laws of Utah 2005, Chapter 199
61-2c-104, as last amended by Laws of Utah 2007, Chapter 325
61-2c-105, as last amended by Laws of Utah 2007, Chapter 173
61-2c-201, as last amended by Laws of Utah 2007, Chapter 325
61-2c-202, as last amended by Laws of Utah 2007, Chapter 325
61-2c-205, as last amended by Laws of Utah 2007, Chapter 325
61-2c-206, as last amended by Laws of Utah 2007, Chapter 325
61-2c-207, as enacted by Laws of Utah 2004, Chapter 297
61-2c-208, as last amended by Laws of Utah 2007, Chapter 325
61-2c-402.1, as enacted by Laws of Utah 2005, Chapter 199
61-2c-403, as last amended by Laws of Utah 2007, Chapter 325
62A-1-106, as enacted by Laws of Utah 1988, Chapter 1
62A-1-108.5, as last amended by Laws of Utah 2003, Chapter 11
62A-1-111, as last amended by Laws of Utah 2005, Chapter 212
62A-1-112, as last amended by Laws of Utah 2004, Chapter 352
62A-1-118, as last amended by Laws of Utah 2006, Chapter 77
62A-2-105, as last amended by Laws of Utah 2005, Chapter 188
62A-2-106, as last amended by Laws of Utah 2005, Chapters 188, and 212
62A-2-108.2, as enacted by Laws of Utah 2005, Chapter 188
62A-2-108.3, as enacted by Laws of Utah 2005, Chapter 188
62A-2-109, as last amended by Laws of Utah 2005, Chapter 188
62A-2-111, as last amended by Laws of Utah 2005, Chapter 188
62A-2-120, as last amended by Laws of Utah 2007, Chapter 152
62A-2-121, as last amended by Laws of Utah 2007, Chapter 152
62A-2-122, as last amended by Laws of Utah 2005, Chapters 60, 107, and 188
62A-3-104, as last amended by Laws of Utah 2005, Chapter 107
62A-3-104.1, as last amended by Laws of Utah 2005, Chapters 71, and 107
62A-3-106.5, as enacted by Laws of Utah 2006, Chapter 31
62A-3-109, as enacted by Laws of Utah 1988, Chapter 1
62A-3-205, as enacted by Laws of Utah 1988, Chapter 1
62A-3-311, as repealed and reenacted by Laws of Utah 2002, Chapter 108
62A-3-311.1, as last amended by Laws of Utah 2005, Chapter 50
62A-3-312, as repealed and reenacted by Laws of Utah 2002, Chapter 108
62A-4a-102, as last amended by Laws of Utah 2005, Chapter 188
62A-4a-112, as renumbered and amended by Laws of Utah 1994, Chapter 260
62A-4a-115, as renumbered and amended by Laws of Utah 1994, Chapter 260
62A-4a-119, as enacted by Laws of Utah 2000, Chapter 274
62A-4a-120, as last amended by Laws of Utah 2006, Chapter 281
62A-4a-206, as last amended by Laws of Utah 2002, Chapter 306
62A-4a-207, as last amended by Laws of Utah 2006, Chapter 14
62A-4a-208, as enacted by Laws of Utah 1998, Chapter 274
62A-4a-303, as renumbered and amended by Laws of Utah 1994, Chapter 260
62A-4a-304, as last amended by Laws of Utah 1996, Chapter 242
62A-4a-410, as last amended by Laws of Utah 2005, Chapter 102
62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77, and 281
62A-4a-906, as enacted by Laws of Utah 2001, Chapter 115
62A-4a-1003, as last amended by Laws of Utah 2007, Chapter 152
62A-4a-1006, as renumbered and amended by Laws of Utah 2006, Chapter 77
62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
62A-5-103, as last amended by Laws of Utah 2005, Chapter 60
62A-5-103.1, as enacted by Laws of Utah 2006, Chapter 133
62A-5-103.2, as enacted by Laws of Utah 2007, Chapter 135
62A-5-105, as last amended by Laws of Utah 2004, Chapter 114
62A-5-313, as last amended by Laws of Utah 1991, Chapter 207
62A-5a-104, as last amended by Laws of Utah 1996, Chapter 179
62A-7-202, as last amended by Laws of Utah 2005, Chapter 13
62A-11-104.1, as last amended by Laws of Utah 1995, Chapter 258
62A-11-105, as enacted by Laws of Utah 1988, Chapter 1
62A-11-303, as last amended by Laws of Utah 2000, Chapter 161
62A-11-304.1, as repealed and reenacted by Laws of Utah 1997, Chapter 232
62A-11-304.2, as last amended by Laws of Utah 2002, Chapter 60
62A-11-304.4, as last amended by Laws of Utah 2006, Chapter 77
62A-11-326.3, as enacted by Laws of Utah 1990, Chapter 166
62A-11-333, as enacted by Laws of Utah 2000, Chapter 161
62A-11-407, as last amended by Laws of Utah 1997, Chapter 232
62A-11-603 (Effective 07/01/08), as enacted by Laws of Utah 2007, Chapter 338
62A-13-105, as last amended by Laws of Utah 2003, Chapter 246
62A-14-105, as enacted by Laws of Utah 1999, Chapter 69
62A-14-106, as last amended by Laws of Utah 2003, Chapter 246
62A-14-108, as enacted by Laws of Utah 1999, Chapter 69
62A-14-109, as enacted by Laws of Utah 1999, Chapter 69
62A-15-103, as last amended by Laws of Utah 2003, Chapters 22, 100, and 303
62A-15-105, as last amended by Laws of Utah 2005, Chapter 2
62A-15-401, as last amended by Laws of Utah 2007, Chapter 284
62A-15-704, as renumbered and amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
62A-15-707, as renumbered and amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
62A-15-902, as last amended by Laws of Utah 2004, Chapter 49
63-11-12, as enacted by Laws of Utah 1967, Chapter 176
63-11-17, as last amended by Laws of Utah 2003, Chapter 328
63-11a-503, as enacted by Laws of Utah 1997, Chapter 321
63-34-3.1, as last amended by Laws of Utah 1990, Chapter 93
63-34-5 (Contingently Effective), as last amended by Laws of Utah 2003, Chapter 144
63-34-15, as last amended by Laws of Utah 2004, Chapter 352
63-34-17, as last amended by Laws of Utah 2004, Chapter 352
63-73-4, as enacted by Laws of Utah 1988, Chapter 137
63-73-6, as last amended by Laws of Utah 2005, Chapter 294
63A-1-105.5, as enacted by Laws of Utah 2006, Chapter 52
63A-1-112, as last amended by Laws of Utah 1999, Chapter 24
63A-1-114, as last amended by Laws of Utah 2006, Chapter 14
63A-2-103, as last amended by Laws of Utah 2004, Chapter 34
63A-3-306, as renumbered and amended by Laws of Utah 1993, Chapter 212
63A-4-102, as last amended by Laws of Utah 2004, Chapter 34
63A-4-204, as last amended by Laws of Utah 2005, Chapters 102, and 285
63A-4-204.5, as last amended by Laws of Utah 2005, Chapters 102, and 285
63A-4-207, as renumbered and amended by Laws of Utah 1994, Chapter 12
63A-5-103, as last amended by Laws of Utah 2007, Chapter 322
63A-5-104, as last amended by Laws of Utah 2007, Chapter 12
63A-5-204, as last amended by Laws of Utah 2006, Chapters 123, and 278
63A-5-205, as last amended by Laws of Utah 2004, Chapter 347
63A-5-206, as last amended by Laws of Utah 2007, Chapter 12
63A-5-208, as last amended by Laws of Utah 2005, Chapter 25
63A-5-302, as enacted by Laws of Utah 1995, Chapter 113
63A-8-201, as last amended by Laws of Utah 2006, Chapter 65
63A-8-204, as last amended by Laws of Utah 2006, Chapter 65
63A-9-401, as last amended by Laws of Utah 2007, Chapters 106, and 329
63A-9-801, as last amended by Laws of Utah 2006, Chapter 139
63A-9-808, as last amended by Laws of Utah 2006, Chapter 6
63A-11-107, as enacted by Laws of Utah 2004, Chapter 356
63A-11-202, as enacted by Laws of Utah 2004, Chapter 356
63A-11-204, as last amended by Laws of Utah 2006, Chapter 76
63B-1a-401, as enacted by Laws of Utah 2003, Chapter 2
63B-2-102, as last amended by Laws of Utah 2005, Chapter 25
63B-2-105, as enacted by Laws of Utah 1993, Chapter 304
63B-2-205, as enacted by Laws of Utah 1993, Chapter 304
63B-2-301, as last amended by Laws of Utah 2003, Chapter 16
63B-3-102, as last amended by Laws of Utah 2005, Chapter 25
63B-3-105, as enacted by Laws of Utah 1994, Chapter 300
63B-3-205, as enacted by Laws of Utah 1994, Chapter 300
63B-3-301, as last amended by Laws of Utah 2003, Chapter 171
63B-4-102, as last amended by Laws of Utah 2005, Chapter 25
63B-4-105, as enacted by Laws of Utah 1995, Chapter 329
63B-4-201, as last amended by Laws of Utah 2003, Chapter 16
63B-4-301, as last amended by Laws of Utah 2003, Chapter 16
63B-5-102, as last amended by Laws of Utah 2005, Chapter 25
63B-5-105, as enacted by Laws of Utah 1996, Chapter 335
63B-6-102, as last amended by Laws of Utah 2005, Chapter 25
63B-6-105, as enacted by Laws of Utah 1997, Chapter 391
63B-6-205, as enacted by Laws of Utah 1997, Chapter 270
63B-6-402, as last amended by Laws of Utah 2005, Chapter 25
63B-6-405, as enacted by Laws of Utah 1997, Chapter 391
63B-6-501, as last amended by Laws of Utah 1998, Chapter 67
63B-7-102, as last amended by Laws of Utah 2005, Chapter 25
63B-7-105, as enacted by Laws of Utah 1998, Chapter 67
63B-7-205, as enacted by Laws of Utah 1998, Chapter 316
63B-7-402, as last amended by Laws of Utah 2005, Chapter 25
63B-7-405, as enacted by Laws of Utah 1998, Chapter 67
63B-7-501, as last amended by Laws of Utah 2003, Chapter 171
63B-7-503, as enacted by Laws of Utah 1998, Chapter 314
63B-8-102, as last amended by Laws of Utah 2005, Chapter 25
63B-8-105, as enacted by Laws of Utah 1999, Chapter 309
63B-8-205, as enacted by Laws of Utah 1999, Chapter 331
63B-8-402, as last amended by Laws of Utah 2005, Chapter 25
63B-8-405, as enacted by Laws of Utah 1999, Chapter 309
63B-8-501, as enacted by Laws of Utah 1999, Chapter 309
63B-9-102, as enacted by Laws of Utah 2000, Chapter 350
63B-9-103, as last amended by Laws of Utah 2005, Chapter 25
63B-9-205, as enacted by Laws of Utah 2000, Chapter 354
63B-10-105, as enacted by Laws of Utah 2001, Chapter 321
63B-10-301, as last amended by Laws of Utah 2001, Second Special Session, Chapter 8
63B-10-302, as enacted by Laws of Utah 2001, Chapter 239
63B-11-105, as enacted by Laws of Utah 2002, Chapter 199
63B-11-202, as last amended by Laws of Utah 2006, Chapter 169
63B-11-205, as enacted by Laws of Utah 2002, Chapter 252
63B-11-305, as enacted by Laws of Utah 2002, Chapter 278
63B-11-505, as enacted by Laws of Utah 2002, Chapter 266
63B-11-701, as enacted by Laws of Utah 2002, Chapter 199
63B-12-201, as enacted by Laws of Utah 2003, Chapter 302
63C-4-101, as last amended by Laws of Utah 2006, Chapter 14
63C-4-102, as last amended by Laws of Utah 2004, Chapter 345
63C-4-103, as last amended by Laws of Utah 2007, Chapter 303
63C-7-210, as enacted by Laws of Utah 1997, Chapter 136
63C-8-105, as last amended by Laws of Utah 2005, Chapter 157
63C-8-106, as enacted by Laws of Utah 2005, Chapter 157
63C-9-301, as last amended by Laws of Utah 2007, Chapter 322
63C-11-202, as enacted by Laws of Utah 2007, Chapter 361
63C-11-302, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-304, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-308, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-310, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-311, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-315, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-316, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-317, as renumbered and amended by Laws of Utah 2007, Chapter 361
63C-11-318, as renumbered and amended by Laws of Utah 2007, Chapter 361
63D-2-103, as enacted by Laws of Utah 2004, Chapter 175
63E-1-102, as last amended by Laws of Utah 2007, Chapter 329
63E-2-109, as last amended by Laws of Utah 2006, Chapter 14
63F-1-103, as enacted by Laws of Utah 2005, Chapter 169
63F-1-204, as enacted by Laws of Utah 2005, Chapter 169
63F-1-205, as last amended by Laws of Utah 2007, Chapter 306
63F-1-206, as last amended by Laws of Utah 2006, Chapter 21
63F-1-207, as last amended by Laws of Utah 2007, Chapter 117
63F-1-209, as enacted by Laws of Utah 2005, Chapter 169
63F-1-301, as enacted by Laws of Utah 2005, Chapter 169
63F-1-302, as last amended by Laws of Utah 2006, Chapter 14
63F-1-509, as last amended by Laws of Utah 2007, Chapter 257
64-9b-6, as last amended by Laws of Utah 1999, Chapter 21
64-13-10, as last amended by Laws of Utah 1994, Chapter 48
64-13-14.7, as last amended by Laws of Utah 1996, Chapter 242
64-13-17, as last amended by Laws of Utah 2004, Chapter 36
64-13-20, as last amended by Laws of Utah 1995, Chapter 352
64-13-21, as last amended by Laws of Utah 2002, Chapter 140
64-13-25, as last amended by Laws of Utah 1987, Chapter 116
64-13-38, as last amended by Laws of Utah 1997, Chapter 110
64-13-39.5, as last amended by Laws of Utah 2007, Chapter 343
64-13-41, as enacted by Laws of Utah 2000, Chapter 200
64-13a-13, as last amended by Laws of Utah 1989, Chapter 224
65A-1-4, as last amended by Laws of Utah 2007, Chapter 136
65A-8-105, as renumbered and amended by Laws of Utah 2007, Chapter 136
65A-8-207, as renumbered and amended by Laws of Utah 2007, Chapter 136
65A-8a-103, as enacted by Laws of Utah 2001, Chapter 80
67-1-2, as last amended by Laws of Utah 2004, Chapter 291
67-1a-2.5, as renumbered and amended by Laws of Utah 2001, Chapter 46
67-3-1, as last amended by Laws of Utah 2007, Chapter 329
67-4a-703, as last amended by Laws of Utah 2007, Chapter 18
67-5-15, as last amended by Laws of Utah 1992, Third Special Session, Chapter 4
67-5-18, as last amended by Laws of Utah 2002, Chapter 130
67-5a-8, as last amended by Laws of Utah 2002, Chapter 256
67-5b-107, as last amended by Laws of Utah 2005, Chapter 102
67-16-3, as last amended by Laws of Utah 1992, Chapter 280
67-16-4, as last amended by Laws of Utah 2005, Chapters 25, and 45
67-16-5, as last amended by Laws of Utah 2007, Chapter 233
67-16-5.3, as last amended by Laws of Utah 2005, Chapter 25
67-16-6, as last amended by Laws of Utah 2005, Chapter 25
67-18-5, as last amended by Laws of Utah 1991, Chapter 259
67-19-5, as last amended by Laws of Utah 2006, Chapter 139
67-19-6, as last amended by Laws of Utah 2006, Chapter 139
67-19-6.7, as last amended by Laws of Utah 2006, Chapter 139
67-19-11, as last amended by Laws of Utah 2006, Chapter 139
67-19-12.5, as last amended by Laws of Utah 2006, Chapter 139
67-19-14, as last amended by Laws of Utah 2006, Chapter 139
67-19-30, as last amended by Laws of Utah 1994, Chapter 145
67-19-31, as last amended by Laws of Utah 2006, Chapter 139
67-19-34, as last amended by Laws of Utah 2006, Chapter 139
67-19a-202, as last amended by Laws of Utah 1991, Chapters 101, and 204
67-19a-203, as enacted by Laws of Utah 1989, Chapter 191
69-2-5.6, as last amended by Laws of Utah 2007, Chapter 241
70-3a-201, as enacted by Laws of Utah 2002, Chapter 318
70-3a-203, as last amended by Laws of Utah 2007, Chapter 365
70-3a-303, as enacted by Laws of Utah 2002, Chapter 318
70A-9a-526, as enacted by Laws of Utah 2000, Chapter 252
70C-8-104, as last amended by Laws of Utah 2006, Chapter 165
70D-1-14, as last amended by Laws of Utah 2006, Chapter 165
70D-1-16, as enacted by Laws of Utah 1990, Chapter 172
70D-1-17, as enacted by Laws of Utah 1990, Chapter 172
71-7-3, as last amended by Laws of Utah 2007, Chapter 173
71-8-2, as last amended by Laws of Utah 2007, Chapter 173
71-11-5, as last amended by Laws of Utah 2007, Chapter 173
72-1-201, as last amended by Laws of Utah 1999, Chapter 325
72-1-211, as enacted by Laws of Utah 2005, Chapter 245
72-1-303, as last amended by Laws of Utah 2007, Chapter 329
72-1-304, as enacted by Laws of Utah 2005, Chapter 245
72-2-109, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-2-111, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-2-113, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-2-117, as last amended by Laws of Utah 2007, Chapter 201
72-2-122, as enacted by Laws of Utah 2002, Chapter 98
72-2-123, as enacted by Laws of Utah 2004, Chapter 8
72-2-202, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-2-203, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-2-204, as last amended by Laws of Utah 2005, Chapter 105
72-3-109, as last amended by Laws of Utah 2001, Chapter 61
72-3-207, as last amended by Laws of Utah 2007, Chapter 126
72-4-102, as last amended by Laws of Utah 2006, Chapter 20
72-4-102.5, as last amended by Laws of Utah 2005, Chapter 245
72-4-303, as enacted by Laws of Utah 2004, Chapter 172
72-5-203, as last amended by Laws of Utah 2003, Chapter 192
72-5-306, as last amended by Laws of Utah 2005, Chapter 102
72-5-309, as last amended by Laws of Utah 2006, Chapter 9
72-5-405, as enacted by Laws of Utah 2000, Chapter 34
72-5-406, as enacted by Laws of Utah 2000, Chapter 34
72-6-107, as last amended by Laws of Utah 2005, Chapter 25
72-6-108, as last amended by Laws of Utah 1999, Chapter 365
72-6-111, as last amended by Laws of Utah 1998, Chapter 335 and renumbered and amended by Laws of Utah 1998, Chapter 270
72-6-116, as last amended by Laws of Utah 2000, Chapter 347
72-6-118, as last amended by Laws of Utah 2006, Chapter 36
72-6-119, as enacted by Laws of Utah 2001, Chapter 51
72-6-120, as enacted by Laws of Utah 2007, Chapter 333
72-6-204, as enacted by Laws of Utah 2006, Chapter 36
72-6-205, as enacted by Laws of Utah 2006, Chapter 36
72-7-102, as last amended by Laws of Utah 2003, Chapter 253
72-7-104, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-107, as last amended by Laws of Utah 2005, Chapter 2
72-7-108, as last amended by Laws of Utah 2003, Chapter 253
72-7-203, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-205, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-206, as last amended by Laws of Utah 2004, Chapter 352
72-7-207, as last amended by Laws of Utah 2004, Chapter 352
72-7-209, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-402, as last amended by Laws of Utah 2002, Chapter 151
72-7-406, as last amended by Laws of Utah 2006, Chapter 212
72-7-407, as last amended by Laws of Utah 2005, Chapter 2
72-7-504, as last amended by Laws of Utah 2005, Chapter 148
72-7-506, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-507, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-7-508, as last amended by Laws of Utah 2006, Chapter 45
72-9-103, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-9-502, as last amended by Laws of Utah 2005, Chapter 161
72-9-602, as last amended by Laws of Utah 2005, Chapter 2
72-9-603, as last amended by Laws of Utah 2005, Chapter 2
72-10-103, as last amended by Laws of Utah 1998, Chapter 365 and renumbered and amended by Laws of Utah 1998, Chapter 270
72-10-107, as renumbered and amended by Laws of Utah 1998, Chapter 270
72-10-116, as last amended by Laws of Utah 1998, Chapter 365 and renumbered and amended by Laws of Utah 1998, Chapter 270
72-10-117, as last amended by Laws of Utah 1998, Chapter 365 and renumbered and amended by Laws of Utah 1998, Chapter 270
72-11-203, as renumbered and amended by Laws of Utah 1999, Chapter 195
72-11-208, as renumbered and amended by Laws of Utah 1999, Chapter 195
72-11-210, as renumbered and amended by Laws of Utah 1999, Chapter 195
73-1-4, as last amended by Laws of Utah 2007, Chapters 136, and 329
73-2-1, as last amended by Laws of Utah 2007, Chapter 329
73-2-1.5, as last amended by Laws of Utah 2005, Chapter 33
73-2-14, as last amended by Laws of Utah 2007, Chapter 314
73-2-25, as last amended by Laws of Utah 2007, Chapter 136
73-3-14, as last amended by Laws of Utah 1987, Chapter 161
73-3-25, as last amended by Laws of Utah 2004, Chapter 191
73-3-29, as last amended by Laws of Utah 2005, Chapter 215
73-3a-104, as enacted by Laws of Utah 1991, Chapter 234
73-3a-105, as enacted by Laws of Utah 1991, Chapter 234
73-3b-104, as enacted by Laws of Utah 1991, Chapter 146
73-3b-105, as enacted by Laws of Utah 1991, Chapter 146
73-3b-201, as last amended by Laws of Utah 1995, Chapter 28
73-3b-204, as last amended by Laws of Utah 1995, Chapter 28
73-3b-302, as last amended by Laws of Utah 1995, Chapter 28
73-3c-301, as enacted by Laws of Utah 2006, Chapter 179
73-3c-302, as enacted by Laws of Utah 2006, Chapter 179
73-5-15, as last amended by Laws of Utah 2007, Chapters 179, and 329
73-10-27, as last amended by Laws of Utah 2005, Chapter 25
73-10c-4.1, as enacted by Laws of Utah 2001, Chapter 12
73-10c-4.2, as enacted by Laws of Utah 2001, Chapter 12
73-10c-4.5, as last amended by Laws of Utah 2007, Chapter 142
73-10c-8, as last amended by Laws of Utah 1991, Chapter 112
73-10c-10, as enacted by Laws of Utah 2007, Chapter 142
73-18-4, as last amended by Laws of Utah 1998, Chapter 205
73-18-7, as last amended by Laws of Utah 2007, Chapter 15
73-18-13.5, as last amended by Laws of Utah 2006, Chapter 211
73-18-19, as last amended by Laws of Utah 1987, Chapter 99
73-18-25, as last amended by Laws of Utah 2007, Chapter 281
73-18a-4, as last amended by Laws of Utah 1991, Chapter 112
73-18a-5, as last amended by Laws of Utah 1991, Chapter 112
73-18a-12, as last amended by Laws of Utah 1991, Chapter 112
73-18c-201, as enacted by Laws of Utah 1997, Chapter 348
73-18c-306, as last amended by Laws of Utah 2006, Chapter 211
73-22-5, as last amended by Laws of Utah 1987, Chapter 161
73-23-3, as enacted by Laws of Utah 1986, Second Special Session, Chapter 6
73-26-402, as enacted by Laws of Utah 1991, Chapter 251
73-26-403, as last amended by Laws of Utah 2005, Chapter 102
73-28-104, as enacted by Laws of Utah 2006, Chapter 216
73-28-404, as enacted by Laws of Utah 2006, Chapter 216
75-2a-106 (Effective 01/01/08), as enacted by Laws of Utah 2007, Chapter 31
76-6-513, as last amended by Laws of Utah 2004, Chapter 267
76-7-317.1, as enacted by Laws of Utah 1991, Chapter 288
76-8-311.3, as last amended by Laws of Utah 2004, Chapters 36, and 280
76-8-317, as enacted by Laws of Utah 2006, Chapter 286
76-8-1101, as last amended by Laws of Utah 2004, Chapter 67
76-10-526, as last amended by Laws of Utah 2004, Chapter 360
76-10-1209, as last amended by Laws of Utah 1995, Chapter 28
76-10-1231, as last amended by Laws of Utah 2007, Chapter 337
76-10-1234, as enacted by Laws of Utah 2007, Chapter 322
76-10-1311, as last amended by Laws of Utah 2005, Chapter 102
76-10-1602, as last amended by Laws of Utah 2007, Chapter 129
77-2-4.2, as last amended by Laws of Utah 2006, Chapter 315
77-2a-3, as last amended by Laws of Utah 2006, Chapter 341
77-10a-5, as repealed and reenacted by Laws of Utah 1994, Chapter 218
77-18-1, as last amended by Laws of Utah 2007, Chapter 218
77-18-11, as last amended by Laws of Utah 2004, Chapter 228
77-18-15, as last amended by Laws of Utah 1999, Chapter 227
77-19-6, as last amended by Laws of Utah 2004, Chapters 6, and 51
77-19-9, as last amended by Laws of Utah 2004, Chapter 6
77-19-202, as last amended by Laws of Utah 2004, Chapter 6 and renumbered and amended by Laws of Utah 2004, Chapter 137
77-22-2, as last amended by Laws of Utah 2000, Chapter 223
77-27-7, as last amended by Laws of Utah 2001, First Special Session, Chapter 4
77-27-9, as last amended by Laws of Utah 2007, Chapter 218
77-27-10, as last amended by Laws of Utah 1996, Chapter 100
77-27-21.5, as last amended by Laws of Utah 2007, Chapter 337
77-28c-104, as enacted by Laws of Utah 2004, Chapter 239
77-37-3, as last amended by Laws of Utah 2005, Chapter 13
77-37-5, as last amended by Laws of Utah 2007, Chapter 300
77-38-3, as last amended by Laws of Utah 2003, Chapter 171
77-38a-401, as enacted by Laws of Utah 2001, Chapter 137
78-2-2, as last amended by Laws of Utah 2001, Chapter 302
78-2a-3, as last amended by Laws of Utah 2001, Chapters 255, and 302
78-2a-6, as last amended by Laws of Utah 2005, Chapter 102
78-3-4, as last amended by Laws of Utah 2004, Chapter 201
78-3-24.1, as enacted by Laws of Utah 2005, First Special Session, Chapter 4
78-3a-104, as last amended by Laws of Utah 2006, Chapters 55, 132, and 281
78-3a-113, as last amended by Laws of Utah 2006, Chapter 281
78-3a-114, as last amended by Laws of Utah 2006, Chapter 281
78-3a-116, as last amended by Laws of Utah 2006, Chapters 55, and 281
78-3a-118, as last amended by Laws of Utah 2006, Chapters 75, and 281
78-3a-504, as last amended by Laws of Utah 2005, Chapter 156
78-3a-505, as repealed and reenacted by Laws of Utah 1997, Chapter 365
78-3a-904, as last amended by Laws of Utah 2006, Chapter 281
78-3a-912, as last amended by Laws of Utah 2006, Chapter 281
78-3g-102, as last amended by Laws of Utah 2003, Chapter 94
78-5-116, as last amended by Laws of Utah 2004, Chapters 273, and 349
78-5-116.5, as enacted by Laws of Utah 2004, Chapter 301
78-6-14, as last amended by Laws of Utah 2001, Chapter 46
78-7-35, as last amended by Laws of Utah 2007, Chapters 301, and 326
78-8-107, as last amended by Laws of Utah 2006, Chapter 34
78-12-29, as last amended by Laws of Utah 2006, Chapter 274
78-14-12, as last amended by Laws of Utah 2002, Chapter 256
78-17-3, as last amended by Laws of Utah 2004, Chapter 267
78-19-1, as last amended by Laws of Utah 2004, Chapter 267
78-27-37, as last amended by Laws of Utah 2005, Chapter 102
78-27-43, as last amended by Laws of Utah 2005, Chapter 102
78-27a-6, as enacted by Laws of Utah 1983, Chapter 298
78-31b-8, as last amended by Laws of Utah 2004, Chapter 90
78-31c-106, as enacted by Laws of Utah 2006, Chapter 33
78-31c-108, as enacted by Laws of Utah 2006, Chapter 33
78-32-17, as last amended by Laws of Utah 2001, Chapter 255
78-35a-202, as enacted by Laws of Utah 1997, Chapter 76
78-45-7.3, as last amended by Laws of Utah 2000, Chapter 161
78-45g-104, as enacted by Laws of Utah 2005, Chapter 150
78-45g-313, as enacted by Laws of Utah 2005, Chapter 150
78-45g-407, as enacted by Laws of Utah 2005, Chapter 150
78-45g-511, as enacted by Laws of Utah 2005, Chapter 150
78-45g-601, as enacted by Laws of Utah 2005, Chapter 150
78-57-108, as enacted by Laws of Utah 1999, Chapter 94
78-61-101, as enacted by Laws of Utah 2004, Chapter 368
ENACTS:
51-9-101, Utah Code Annotated 1953
52-6-101, Utah Code Annotated 1953
52-7-101, Utah Code Annotated 1953
63G-1-101, Utah Code Annotated 1953
63G-6-101, Utah Code Annotated 1953
63G-8-101, Utah Code Annotated 1953
63G-9-101, Utah Code Annotated 1953
63G-10-101, Utah Code Annotated 1953
63I-2-101, Utah Code Annotated 1953
63I-4-101, Utah Code Annotated 1953
63J-5-101, Utah Code Annotated 1953
63J-6-101, Utah Code Annotated 1953
63K-2-101, Utah Code Annotated 1953
63K-3-101, Utah Code Annotated 1953
63K-4-101, Utah Code Annotated 1953
63L-1-101, Utah Code Annotated 1953
63L-2-101, Utah Code Annotated 1953
63L-4-101, Utah Code Annotated 1953
63M-3-101, Utah Code Annotated 1953
63M-5-101, Utah Code Annotated 1953
63M-6-101, Utah Code Annotated 1953
63M-7-101, Utah Code Annotated 1953
63M-8-101, Utah Code Annotated 1953
RENUMBERS AND AMENDS:
19-11-101, (Renumbered from 63-41-1, as enacted by Laws of Utah 1969, First Special Session, Chapter 6)
19-11-102, (Renumbered from 63-41-2, as enacted by Laws of Utah 1969, First Special Session, Chapter 6)
19-11-201, (Renumbered from 63-41-3, as enacted by Laws of Utah 1969, First Special Session, Chapter 6)
19-11-301, (Renumbered from 63-41-4, as last amended by Laws of Utah 1979, Chapter 220)
19-11-302, (Renumbered from 63-41-5, as last amended by Laws of Utah 1984, Chapter 67)
19-11-401, (Renumbered from 63-41-6, as enacted by Laws of Utah 1969, First Special Session, Chapter 6)
51-7-3.5, (Renumbered from 63-13-1, Utah Code Annotated 1953)
51-9-201, (Renumbered from 63-97-201, as last amended by Laws of Utah 2005, Chapter 275)
51-9-202, (Renumbered from 63-97-301, as last amended by Laws of Utah 2007, Chapter 384)
51-9-203, (Renumbered from 63-97-401, as last amended by Laws of Utah 2002, Chapter 119)
51-9-301, (Renumbered from 63-97a-101, as enacted by Laws of Utah 2007, Chapter 384)
51-9-302, (Renumbered from 63-97a-102, as enacted by Laws of Utah 2007, Chapter 384)
51-9-303, (Renumbered from 63-97a-201, as enacted by Laws of Utah 2007, Chapter 384)
51-9-304, (Renumbered from 63-97a-202, as enacted by Laws of Utah 2007, Chapter 384)
51-9-401, (Renumbered from 63-63a-1, as last amended by Laws of Utah 2005, Chapter 2)
51-9-402, (Renumbered from 63-63a-2, as last amended by Laws of Utah 2007, Chapter 330)
51-9-403, (Renumbered from 63-63a-3, as last amended by Laws of Utah 1999, Chapter 141)
51-9-404, (Renumbered from 63-63a-4, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 12)
51-9-405, (Renumbered from 63-63a-5, as last amended by Laws of Utah 1998, Chapter 171)
51-9-406, (Renumbered from 63-63a-6, as last amended by Laws of Utah 1993, Chapter 156)
51-9-407, (Renumbered from 63-63a-7, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8)
51-9-408, (Renumbered from 63-63a-8, as last amended by Laws of Utah 2007, Chapter 326)
51-9-409, (Renumbered from 63-63a-8.5, as enacted by Laws of Utah 1997, Chapter 194)
51-9-410, (Renumbered from 63-63a-9, as last amended by Laws of Utah 1998, Chapter 263)
51-9-411, (Renumbered from 63-63a-10, as enacted by Laws of Utah 2007, Chapter 330)
51-9-501, (Renumbered from 63-88-101, as last amended by Laws of Utah 2000, Chapter 281)
51-9-502, (Renumbered from 63-88-102, as last amended by Laws of Utah 2001, Chapter 175)
51-9-503, (Renumbered from 63-88-103, as last amended by Laws of Utah 2005, Chapter 258)
51-9-504, (Renumbered from 63-88-104, as last amended by Laws of Utah 1993, Chapter 4)
51-9-505, (Renumbered from 63-88-105, as last amended by Laws of Utah 2000, Chapter 281)
51-9-506, (Renumbered from 63-88-106, as last amended by Laws of Utah 2000, Chapter 281)
51-9-507, (Renumbered from 63-88-107, as last amended by Laws of Utah 2006, Chapters 14, and 296)
51-9-601, (Renumbered from 63-12-1, Utah Code Annotated 1953)
51-9-602, (Renumbered from 63-12-2, Utah Code Annotated 1953)
51-9-603, (Renumbered from 63-12-4, as last amended by Laws of Utah 1993, Chapter 227)
52-6-102, (Renumbered from 63-30a-1, as enacted by Laws of Utah 1977, Chapter 245)
52-6-201, (Renumbered from 63-30a-2, as last amended by Laws of Utah 1998, Chapter 307)
52-6-202, (Renumbered from 63-30a-3, as last amended by Laws of Utah 2004, Chapter 267)
52-7-102, (Renumbered from 63-30c-1, as last amended by Laws of Utah 1996, Chapter 198)
52-7-201, (Renumbered from 63-30c-2, as enacted by Laws of Utah 1987, First Special Session, Chapter 19)
52-7-202, (Renumbered from 63-30c-3, as enacted by Laws of Utah 1987, First Special Session, Chapter 19)
52-7-203, (Renumbered from 63-30c-4, as enacted by Laws of Utah 1987, First Special Session, Chapter 19)
52-7-204, (Renumbered from 63-30c-5, as enacted by Laws of Utah 1987, First Special Session, Chapter 19)
52-7-301, (Renumbered from 63-30c-6, as enacted by Laws of Utah 1987, First Special Session, Chapter 19)
52-8-101, (Renumbered from 63-93-101, as enacted by Laws of Utah 1997, Chapter 256)
52-8-102, (Renumbered from 63-93-102, as last amended by Laws of Utah 2007, Chapter 329)
52-8-201, (Renumbered from 63-93-201, as last amended by Laws of Utah 1998, Chapter 310)
52-8-202, (Renumbered from 63-93-202, as last amended by Laws of Utah 1998, Chapter 310)
52-9-101, (Renumbered from 63-96-101, as enacted by Laws of Utah 1998, Chapter 341)
52-9-102, (Renumbered from 63-96-102, as last amended by Laws of Utah 2007, Chapter 329)
52-9-201, (Renumbered from 63-96-103, as last amended by Laws of Utah 1999, Chapter 45)
53-5a-101, (Renumbered from 63-98-101, as enacted by Laws of Utah 2004, Chapter 264)
53-5a-102, (Renumbered from 63-98-102, as enacted by Laws of Utah 2004, Chapter 264)
53-15-101, (Renumbered from 63-94-101, as enacted by Laws of Utah 1997, Chapter 320)
53-15-102, (Renumbered from 63-94-102, as enacted by Laws of Utah 1997, Chapter 320)
53-15-201, (Renumbered from 63-94-103, as enacted by Laws of Utah 1997, Chapter 320)
53-15-202, (Renumbered from 63-94-104, as enacted by Laws of Utah 1997, Chapter 320)
63A-5-501, (Renumbered from 63-9-21, as enacted by Laws of Utah 1965, Chapter 146)
63A-5-502, (Renumbered from 63-9-22, as enacted by Laws of Utah 1965, Chapter 146)
63A-5-601, (Renumbered from 63-9-63, as last amended by Laws of Utah 2006, Chapter 278)
63A-5-701, (Renumbered from 63-9-67, as last amended by Laws of Utah 2006, Chapter 278)
63A-5-801, (Renumbered from 63-9-68, as enacted by Laws of Utah 2007, Chapter 118)
63A-12-101, (Renumbered from 63-2-901, as last amended by Laws of Utah 2007, Chapter 249)
63A-12-102, (Renumbered from 63-2-902, as last amended by Laws of Utah 1996, Chapter 31)
63A-12-103, (Renumbered from 63-2-903, as last amended by Laws of Utah 2006, Chapter 300)
63A-12-104, (Renumbered from 63-2-904, as last amended by Laws of Utah 1992, Chapter 280)
63A-12-105, (Renumbered from 63-2-905, as last amended by Laws of Utah 1994, Chapter 99)
63A-12-106, (Renumbered from 63-2-906, as last amended by Laws of Utah 1992, Chapter 280)
63A-12-107, (Renumbered from 63-2-907, as enacted by Laws of Utah 1991, Chapter 259)
63A-12-108, (Renumbered from 63-2-908, as last amended by Laws of Utah 1997, Chapter 135)
63A-12-109, (Renumbered from 63-2-909, as last amended by Laws of Utah 1995, Chapter 198)
63B-1b-101, (Renumbered from 63-65-1, as enacted by Laws of Utah 1986, Chapter 35)
63B-1b-102, (Renumbered from 63-65-2, as last amended by Laws of Utah 2007, Chapter 306)
63B-1b-201, (Renumbered from 63-65-3, as last amended by Laws of Utah 2003, Chapter 313)
63B-1b-202, (Renumbered from 63-65-4, as last amended by Laws of Utah 2005, Chapters 151, and 200)
63B-1b-301, (Renumbered from 63-65-5, as last amended by Laws of Utah 2003, Chapter 313)
63B-1b-302, (Renumbered from 63-65-6, as last amended by Laws of Utah 2003, Chapter 313)
63B-1b-401, (Renumbered from 63-65-7, as last amended by Laws of Utah 2003, Chapter 313)
63B-1b-402, (Renumbered from 63-65-8, as last amended by Laws of Utah 2003, Chapter 313)
63B-1b-501, (Renumbered from 63-65-8.1, as enacted by Laws of Utah 2003, Chapter 313)
63B-1b-601, (Renumbered from 63-65-8.2, as last amended by Laws of Utah 2004, Chapter 25)
63B-1b-701, (Renumbered from 63-65-9, as last amended by Laws of Utah 2003, Chapter 313)
63G-1-201, (Renumbered from 63-13-1.5, as enacted by Statewide Initiative A, Nov. 7, 2000)
63G-1-301, (Renumbered from 63-13-2, as last amended by Laws of Utah 2006, Chapter 139)
63G-1-401, (Renumbered from 63-13-5.6, as last amended by Laws of Utah 2007, Chapters 16, and 173)
63G-1-501, (Renumbered from 63-13-5, Utah Code Annotated 1953)
63G-1-601, (Renumbered from 63-13-5.5, as last amended by Laws of Utah 2003, Chapter 152)
63G-2-101, (Renumbered from 63-2-101, as enacted by Laws of Utah 1991, Chapter 259)
63G-2-102, (Renumbered from 63-2-102, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-103, (Renumbered from 63-2-103, as last amended by Laws of Utah 2007, Chapter 329)
63G-2-104, (Renumbered from 63-2-104, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-105, (Renumbered from 63-2-105, as enacted by Laws of Utah 1992, Chapter 280)
63G-2-106, (Renumbered from 63-2-106, as enacted by Laws of Utah 2002, Chapter 166)
63G-2-107, (Renumbered from 63-2-107, as enacted by Laws of Utah 2003, Chapter 64)
63G-2-201, (Renumbered from 63-2-201, as last amended by Laws of Utah 2006, Chapter 174)
63G-2-202, (Renumbered from 63-2-202, as last amended by Laws of Utah 2005, Chapter 201)
63G-2-203, (Renumbered from 63-2-203, as last amended by Laws of Utah 2006, Chapter 174)
63G-2-204, (Renumbered from 63-2-204, as last amended by Laws of Utah 2006, Chapter 64)
63G-2-205, (Renumbered from 63-2-205, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-206, (Renumbered from 63-2-206, as last amended by Laws of Utah 2006, Chapter 174)
63G-2-207, (Renumbered from 63-2-207, as last amended by Laws of Utah 1998, Chapter 303)
63G-2-301, (Renumbered from 63-2-301, as last amended by Laws of Utah 2006, Chapters 2, and 14)
63G-2-302, (Renumbered from 63-2-302, as last amended by Laws of Utah 2006, Chapter 2)
63G-2-303, (Renumbered from 63-2-302.5, as last amended by Laws of Utah 2003, Chapter 216)
63G-2-304, (Renumbered from 63-2-303, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-305, (Renumbered from 63-2-304, as last amended by Laws of Utah 2007, Chapters 66, and 352)
63G-2-306, (Renumbered from 63-2-305, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-307, (Renumbered from 63-2-306, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-308, (Renumbered from 63-2-307, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-309, (Renumbered from 63-2-308, as last amended by Laws of Utah 2005, Chapter 201)
63G-2-401, (Renumbered from 63-2-401, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-402, (Renumbered from 63-2-402, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-403, (Renumbered from 63-2-403, as last amended by Laws of Utah 2006, Chapter 284)
63G-2-404, (Renumbered from 63-2-404, as last amended by Laws of Utah 1995, Chapter 133)
63G-2-405, (Renumbered from 63-2-405, as enacted by Laws of Utah 1992, Chapter 280)
63G-2-501, (Renumbered from 63-2-501, as last amended by Laws of Utah 2003, Chapter 153)
63G-2-502, (Renumbered from 63-2-502, as last amended by Laws of Utah 1995, Chapter 133)
63G-2-601, (Renumbered from 63-2-601, as last amended by Laws of Utah 2006, Chapter 261)
63G-2-602, (Renumbered from 63-2-602, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-603, (Renumbered from 63-2-603, as last amended by Laws of Utah 1992, Chapter 280)
63G-2-604, (Renumbered from 63-2-604, as enacted by Laws of Utah 2006, Chapter 261)
63G-2-701, (Renumbered from 63-2-701, as last amended by Laws of Utah 1994, Chapter 99)
63G-2-702, (Renumbered from 63-2-702, as last amended by Laws of Utah 2006, Chapter 261)
63G-2-703, (Renumbered from 63-2-703, as last amended by Laws of Utah 2006, Chapter 261)
63G-2-801, (Renumbered from 63-2-801, as last amended by Laws of Utah 2006, Chapter 174)
63G-2-802, (Renumbered from 63-2-802, as last amended by Laws of Utah 2005, Chapter 102)
63G-2-803, (Renumbered from 63-2-803, as last amended by Laws of Utah 2002, Chapter 191)
63G-2-804, (Renumbered from 63-2-804, as enacted by Laws of Utah 1992, Chapter 280)
63G-2-901, (Renumbered from 63-2-1001, as enacted by Laws of Utah 2001, Chapter 254)
63G-3-101, (Renumbered from 63-46a-1, as enacted by Laws of Utah 1985, Chapter 158)
63G-3-102, (Renumbered from 63-46a-2, as last amended by Laws of Utah 2007, Chapter 102)
63G-3-201, (Renumbered from 63-46a-3, as last amended by Laws of Utah 2001, Chapter 138)
63G-3-202, (Renumbered from 63-46a-3.5, as enacted by Laws of Utah 2003, Chapter 197)
63G-3-301, (Renumbered from 63-46a-4, as last amended by Laws of Utah 2007, Chapters 102, and 168)
63G-3-302, (Renumbered from 63-46a-5, as last amended by Laws of Utah 1987, Chapter 241)
63G-3-303, (Renumbered from 63-46a-6, as last amended by Laws of Utah 2001, Chapter 138)
63G-3-304, (Renumbered from 63-46a-7, as last amended by Laws of Utah 2005, Chapter 48)
63G-3-305, (Renumbered from 63-46a-9, as last amended by Laws of Utah 1998, Chapters 13, and 332)
63G-3-401, (Renumbered from 63-46a-9.5, as enacted by Laws of Utah 1987, Chapter 241)
63G-3-402, (Renumbered from 63-46a-10, as last amended by Laws of Utah 2001, Chapter 138)
63G-3-403, (Renumbered from 63-46a-10.5, as last amended by Laws of Utah 2005, Chapter 48)
63G-3-501, (Renumbered from 63-46a-11, as last amended by Laws of Utah 2002, Chapter 185)
63G-3-502, (Renumbered from 63-46a-11.5, as last amended by Laws of Utah 1998, Chapter 332)
63G-3-601, (Renumbered from 63-46a-12, as last amended by Laws of Utah 2006, Chapter 141)
63G-3-602, (Renumbered from 63-46a-12.1, as last amended by Laws of Utah 2001, Chapter 138)
63G-3-603, (Renumbered from 63-46a-14, as last amended by Laws of Utah 1998, Chapter 332)
63G-3-701, (Renumbered from 63-46a-16, as last amended by Laws of Utah 1992, Chapter 261)
63G-3-702, (Renumbered from 63-46a-9.6, as enacted by Laws of Utah 1996, Chapter 60)
63G-4-101, (Renumbered from 63-46b-0.5, as enacted by Laws of Utah 1991, Chapter 87)
63G-4-102, (Renumbered from 63-46b-1, as last amended by Laws of Utah 2006, Chapter 187)
63G-4-103, (Renumbered from 63-46b-2, as last amended by Laws of Utah 1988, Chapter 169)
63G-4-104, (Renumbered from 63-46b-2.1, as enacted by Laws of Utah 2004, Chapter 344)
63G-4-105, (Renumbered from 63-46b-22, as last amended by Laws of Utah 1991, Chapter 5)
63G-4-201, (Renumbered from 63-46b-3, as last amended by Laws of Utah 2007, Chapter 306)
63G-4-202, (Renumbered from 63-46b-4, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-203, (Renumbered from 63-46b-5, as last amended by Laws of Utah 1988, Chapter 72)
63G-4-204, (Renumbered from 63-46b-6, as last amended by Laws of Utah 2001, Chapter 138)
63G-4-205, (Renumbered from 63-46b-7, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-206, (Renumbered from 63-46b-8, as last amended by Laws of Utah 2007, Chapter 306)
63G-4-207, (Renumbered from 63-46b-9, as last amended by Laws of Utah 2001, Chapter 138)
63G-4-208, (Renumbered from 63-46b-10, as last amended by Laws of Utah 2001, Chapter 138)
63G-4-209, (Renumbered from 63-46b-11, as last amended by Laws of Utah 1988, Chapter 72)
63G-4-301, (Renumbered from 63-46b-12, as last amended by Laws of Utah 2001, Chapter 138)
63G-4-302, (Renumbered from 63-46b-13, as last amended by Laws of Utah 2001, Chapter 138)
63G-4-401, (Renumbered from 63-46b-14, as last amended by Laws of Utah 1988, Chapter 72)
63G-4-402, (Renumbered from 63-46b-15, as last amended by Laws of Utah 2001, Chapters 120, and 138)
63G-4-403, (Renumbered from 63-46b-16, as last amended by Laws of Utah 1988, Chapter 72)
63G-4-404, (Renumbered from 63-46b-17, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-405, (Renumbered from 63-46b-18, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-501, (Renumbered from 63-46b-19, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-502, (Renumbered from 63-46b-20, as enacted by Laws of Utah 1987, Chapter 161)
63G-4-503, (Renumbered from 63-46b-21, as last amended by Laws of Utah 1988, Chapter 72)
63G-4-601, (Renumbered from 63-46b-23, as enacted by Laws of Utah 2001, Chapter 138)
63G-5-101, (Renumbered from 63-46c-101, as enacted by Laws of Utah 2001, Chapter 173)
63G-5-102, (Renumbered from 63-46c-102, as enacted by Laws of Utah 2001, Chapter 173)
63G-5-201, (Renumbered from 63-46c-103, as enacted by Laws of Utah 2001, Chapter 173)
63G-5-301, (Renumbered from 63-46c-104, as enacted by Laws of Utah 2001, Chapter 173)
63G-6-102, (Renumbered from 63-56-101, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-103, (Renumbered from 63-56-105, as last amended by Laws of Utah 2005, Chapter 71 and renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-104, (Renumbered from 63-56-102, as last amended by Laws of Utah 2007, Chapter 329)
63G-6-105, (Renumbered from 63-56-103, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-106, (Renumbered from 63-56-104, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-201, (Renumbered from 63-56-201, as last amended by Laws of Utah 2007, Chapter 329)
63G-6-202, (Renumbered from 63-56-202, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-203, (Renumbered from 63-56-203, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-204, (Renumbered from 63-56-204, as last amended by Laws of Utah 2005, Chapter 169 and renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-205, (Renumbered from 63-56-205, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-206, (Renumbered from 63-56-206, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-207, (Renumbered from 63-56-207, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-208, (Renumbered from 63-56-208, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-209, (Renumbered from 63-56-209, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-301, (Renumbered from 63-56-301, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-302, (Renumbered from 63-56-302, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-303, (Renumbered from 63-56-303, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-401, (Renumbered from 63-56-401, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-402, (Renumbered from 63-56-402, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-403, (Renumbered from 63-56-403, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-404, (Renumbered from 63-56-404, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-405, (Renumbered from 63-56-405, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-406, (Renumbered from 63-56-406, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-407, (Renumbered from 63-56-407, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-408, (Renumbered from 63-56-408, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-409, (Renumbered from 63-56-409, as last amended by Laws of Utah 2006, Chapter 46)
63G-6-410, (Renumbered from 63-56-410, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-411, (Renumbered from 63-56-411, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-412, (Renumbered from 63-56-412, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-413, (Renumbered from 63-56-413, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-414, (Renumbered from 63-56-414, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-415, (Renumbered from 63-56-415, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-416, (Renumbered from 63-56-416, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-417, (Renumbered from 63-56-417, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-418, (Renumbered from 63-56-418, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-419, (Renumbered from 63-56-419, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-420, (Renumbered from 63-56-420, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-421, (Renumbered from 63-56-421, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-422, (Renumbered from 63-56-422, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-423, (Renumbered from 63-56-423, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-424, (Renumbered from 63-56-424, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-425, (Renumbered from 63-56-425, as last amended by Laws of Utah 2006, Chapter 32)
63G-6-426, (Renumbered from 63-56-426, as enacted by Laws of Utah 2006, Chapter 66)
63G-6-501, (Renumbered from 63-56-501, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-502, (Renumbered from 63-56-502, as last amended by Laws of Utah 2006, Chapter 319)
63G-6-503, (Renumbered from 63-56-502.5, as enacted by Laws of Utah 2006, Chapter 36)
63G-6-504, (Renumbered from 63-56-503, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-505, (Renumbered from 63-56-504, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-506, (Renumbered from 63-56-505, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-507, (Renumbered from 63-56-506, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-601, (Renumbered from 63-56-601, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-602, (Renumbered from 63-56-602, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-701, (Renumbered from 63-56-701, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-702, (Renumbered from 63-56-702, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-703, (Renumbered from 63-56-703, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-704, (Renumbered from 63-56-704, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-705, (Renumbered from 63-56-705, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-801, (Renumbered from 63-56-801, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-802, (Renumbered from 63-56-802, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-803, (Renumbered from 63-56-803, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-804, (Renumbered from 63-56-804, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-805, (Renumbered from 63-56-805, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-806, (Renumbered from 63-56-806, as last amended by Laws of Utah 2007, Chapter 306)
63G-6-807, (Renumbered from 63-56-807, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-808, (Renumbered from 63-56-808, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-809, (Renumbered from 63-56-809, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-810, (Renumbered from 63-56-810, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-811, (Renumbered from 63-56-811, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-812, (Renumbered from 63-56-812, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-813, (Renumbered from 63-56-813, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-814, (Renumbered from 63-56-814, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-815, (Renumbered from 63-56-815, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-816, (Renumbered from 63-56-816, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-817, (Renumbered from 63-56-817, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-818, (Renumbered from 63-56-818, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-819, (Renumbered from 63-56-819, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-820, (Renumbered from 63-56-820, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-901, (Renumbered from 63-56-901, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-902, (Renumbered from 63-56-902, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-903, (Renumbered from 63-56-903, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-904, (Renumbered from 63-56-904, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-905, (Renumbered from 63-56-905, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-906, (Renumbered from 63-56-906, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-907, (Renumbered from 63-56-907, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-1001, (Renumbered from 63-56-1001, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-6-1002, (Renumbered from 63-56-1002, as renumbered and amended by Laws of Utah 2005, Chapter 25)
63G-7-101, (Renumbered from 63-30d-101, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-102, (Renumbered from 63-30d-102, as last amended by Laws of Utah 2007, Chapter 329)
63G-7-201, (Renumbered from 63-30d-201, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-202, (Renumbered from 63-30d-202, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-203, (Renumbered from 63-30d-203, as last amended by Laws of Utah 2007, Chapter 306)
63G-7-301, (Renumbered from 63-30d-301, as last amended by Laws of Utah 2007, Chapter 357)
63G-7-302, (Renumbered from 63-30d-302, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-401, (Renumbered from 63-30d-401, as last amended by Laws of Utah 2007, Chapter 329)
63G-7-402, (Renumbered from 63-30d-402, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-403, (Renumbered from 63-30d-403, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-501, (Renumbered from 63-30d-501, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-502, (Renumbered from 63-30d-502, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-601, (Renumbered from 63-30d-601, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-602, (Renumbered from 63-30d-602, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-603, (Renumbered from 63-30d-603, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-604, (Renumbered from 63-30d-604, as last amended by Laws of Utah 2007, Chapter 71)
63G-7-701, (Renumbered from 63-30d-701, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-702, (Renumbered from 63-30d-702, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-703, (Renumbered from 63-30d-703, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-704, (Renumbered from 63-30d-704, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-801, (Renumbered from 63-30d-801, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-802, (Renumbered from 63-30d-802, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-803, (Renumbered from 63-30d-803, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-804, (Renumbered from 63-30d-804, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-805, (Renumbered from 63-30d-805, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-901, (Renumbered from 63-30d-901, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-902, (Renumbered from 63-30d-902, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-903, (Renumbered from 63-30d-903, as enacted by Laws of Utah 2004, Chapter 267)
63G-7-904, (Renumbered from 63-30d-904, as enacted by Laws of Utah 2004, Chapter 267)
63G-8-102, (Renumbered from 63-30b-1, as enacted by Laws of Utah 1979, Chapter 93)
63G-8-201, (Renumbered from 63-30b-2, as enacted by Laws of Utah 1979, Chapter 92)
63G-8-202, (Renumbered from 63-30b-3, as last amended by Laws of Utah 2005, Chapter 102)
63G-8-301, (Renumbered from 63-30b-4, as enacted by Laws of Utah 1979, Chapter 93)
63G-9-201, (Renumbered from 63-6-1, as last amended by Laws of Utah 2007, Chapter 329)
63G-9-202, (Renumbered from 63-6-1.5, as enacted by Laws of Utah 1987, Chapter 161)
63G-9-203, (Renumbered from 63-6-2, as last amended by Laws of Utah 1963, Chapter 150)
63G-9-204, (Renumbered from 63-6-3, Utah Code Annotated 1953)
63G-9-205, (Renumbered from 63-6-4, Utah Code Annotated 1953)
63G-9-206, (Renumbered from 63-6-5, Utah Code Annotated 1953)
63G-9-207, (Renumbered from 63-6-6, Utah Code Annotated 1953)
63G-9-301, (Renumbered from 63-6-10, as last amended by Laws of Utah 1987, Chapter 61)
63G-9-302, (Renumbered from 63-6-11, as last amended by Laws of Utah 2006, Chapter 357)
63G-9-303, (Renumbered from 63-6-12, as last amended by Laws of Utah 1995, Chapter 20)
63G-9-304, (Renumbered from 63-6-13, as last amended by Laws of Utah 2006, Chapter 357)
63G-9-305, (Renumbered from 63-6-14, Utah Code Annotated 1953)
63G-9-306, (Renumbered from 63-6-16, as last amended by Laws of Utah 2006, Chapter 357)
63G-9-401, (Renumbered from 63-6-17, Utah Code Annotated 1953)
63G-10-102, (Renumbered from 63-38b-101, as last amended by Laws of Utah 2004, Chapter 60)
63G-10-103, (Renumbered from 63-38b-102, as last amended by Laws of Utah 2002, Chapter 235)
63G-10-201, (Renumbered from 63-38b-201, as renumbered and amended by Laws of Utah 2002, Chapter 235)
63G-10-202, (Renumbered from 63-38b-202, as renumbered and amended by Laws of Utah 2002, Chapter 235)
63G-10-301, (Renumbered from 63-38b-301, as enacted by Laws of Utah 2002, Chapter 235)
63G-10-302, (Renumbered from 63-38b-302, as enacted by Laws of Utah 2002, Chapter 235)
63G-10-303, (Renumbered from 63-38b-303, as enacted by Laws of Utah 2002, Chapter 235)
63G-10-401, (Renumbered from 63-38b-401, as renumbered and amended by Laws of Utah 2002, Chapter 235)
63I-1-101, (Renumbered from 63-55-101, as last amended by Laws of Utah 1997, Chapter 15)
63I-1-102, (Renumbered from 63-55-102, as last amended by Laws of Utah 1997, Chapter 15)
63I-1-103, (Renumbered from 63-55-103, as last amended by Laws of Utah 1997, Chapter 15)
63I-1-104, (Renumbered from 63-55-104, as renumbered and amended by Laws of Utah 1990, Chapter 1)
63I-1-105, (Renumbered from 63-55-105, as last amended by Laws of Utah 1993, Chapter 13)
63I-1-106, (Renumbered from 63-55-106, as last amended by Laws of Utah 1993, Chapter 13)
63I-1-209, (Renumbered from 63-55-209, as last amended by Laws of Utah 2006, Chapters 82, 86, and 223)
63I-1-210, (Renumbered from 63-55-210, as last amended by Laws of Utah 2004, Chapter 90)
63I-1-213, (Renumbered from 63-55-213, as last amended by Laws of Utah 2007, Chapter 216)
63I-1-219, (Renumbered from 63-55-219, as last amended by Laws of Utah 2006, Chapters 82, and 187)
63I-1-220, (Renumbered from 63-55-220, as last amended by Laws of Utah 2004, Chapter 37)
63I-1-223, (Renumbered from 63-55-223, as last amended by Laws of Utah 2004, Chapter 90)
63I-1-226, (Renumbered from 63-55-226, as last amended by Laws of Utah 2007, Chapter 24)
63I-1-230, (Renumbered from 63-55-230, Utah Code Annotated 1953)
63I-1-231, (Renumbered from 63-55-231, as last amended by Laws of Utah 2007, Chapter 216)
63I-1-232, (Renumbered from 63-55-232, as last amended by Laws of Utah 1998, Chapter 175)
63I-1-234, (Renumbered from 63-55-234, as last amended by Laws of Utah 2005, Chapter 289)
63I-1-235, (Renumbered from 63-55-235, as last amended by Laws of Utah 2007, Chapter 216)
63I-1-236, (Renumbered from 63-55-236, as last amended by Laws of Utah 2007, Chapters 39, and 216)
63I-1-238, (Renumbered from 63-55-238, as enacted by Laws of Utah 2004, Chapter 250)
63I-1-241, (Renumbered from 63-55-241, as last amended by Laws of Utah 2005, Chapters 2, and 108)
63I-1-253, (Renumbered from 63-55-253, as last amended by Laws of Utah 2007, Chapter 386)
63I-1-254, (Renumbered from 63-55-254, as last amended by Laws of Utah 2000, Chapter 1)
63I-1-258, (Renumbered from 63-55-258, as last amended by Laws of Utah 2007, Chapter 216)
63I-1-259, (Renumbered from 63-55-259, as last amended by Laws of Utah 2007, Chapters 216, and 306)
63I-1-261, (Renumbered from 63-55-261, as last amended by Laws of Utah 1999, Chapter 242)
63I-1-262, (Renumbered from 63-55-262, as last amended by Laws of Utah 2007, Chapter 135)
63I-1-263, (Renumbered from 63-55-263, as last amended by Laws of Utah 2007, Chapters 216, 306, and 317)
63I-1-267, (Renumbered from 63-55-267, as last amended by Laws of Utah 2007, Chapters 39, and 216)
63I-1-269, (Renumbered from 63-55-269, as enacted by Laws of Utah 2004, Chapter 313)
63I-1-272, (Renumbered from 63-55-272, as last amended by Laws of Utah 2004, Chapter 90)
63I-1-273, (Renumbered from 63-55-273, as last amended by Laws of Utah 2003, Chapter 254)
63I-1-277, (Renumbered from 63-55-277, as last amended by Laws of Utah 2004, Chapter 37)
63I-1-278, (Renumbered from 63-55-278, as last amended by Laws of Utah 2007, Chapters 216, and 324)
63I-2-210, (Renumbered from 63-55b-110, as last amended by Laws of Utah 2005, Chapter 28)
63I-2-220, (Renumbered from 63-55b-120, as last amended by Laws of Utah 2003, Chapters 131, and 159)
63I-2-223, (Renumbered from 63-55b-123, as last amended by Laws of Utah 2003, Chapter 131)
63I-2-226, (Renumbered from 63-55b-126, as last amended by Laws of Utah 2007, Chapter 216)
63I-2-231, (Renumbered from 63-55b-131, as last amended by Laws of Utah 2006, Chapter 82)
63I-2-232, (Renumbered from 63-55b-132, as last amended by Laws of Utah 2005, Chapter 152)
63I-2-234, (Renumbered from 63-55b-134, as last amended by Laws of Utah 2003, Chapter 131)
63I-2-253, (Renumbered from 63-55b-153, as last amended by Laws of Utah 2007, Chapter 216)
63I-2-254, (Renumbered from 63-55b-154, as last amended by Laws of Utah 2007, Chapter 306)
63I-2-258, (Renumbered from 63-55b-158, as last amended by Laws of Utah 2006, Chapters 46, and 291)
63I-2-259, (Renumbered from 63-55b-159, as last amended by Laws of Utah 2007, Chapter 306)
63I-2-263, (Renumbered from 63-55b-163, as last amended by Laws of Utah 2007, Chapter 306)
63I-2-264, (Renumbered from 63-55b-164, as last amended by Laws of Utah 2007, Chapter 353)
63I-2-267, (Renumbered from 63-55b-167, as last amended by Laws of Utah 2004, Chapter 90)
63I-2-272, (Renumbered from 63-55b-172, as last amended by Laws of Utah 2005, Second Special Session, Chapter 1)
63I-2-276, (Renumbered from 63-55b-176, as last amended by Laws of Utah 2004, Chapter 90)
63I-2-277, (Renumbered from 63-55b-177, as last amended by Laws of Utah 2006, Chapter 341)
63I-2-278, (Renumbered from 63-55b-178, as last amended by Laws of Utah 2007, Chapters 216, 306, and 354)
63I-3-101, (Renumbered from 63-54-101, as enacted by Laws of Utah 2006, Chapter 248)
63I-3-102, (Renumbered from 63-54-102, as enacted by Laws of Utah 2006, Chapter 248)
63I-3-201, (Renumbered from 63-54-103, as last amended by Laws of Utah 2007, Chapter 273)
63I-3-202, (Renumbered from 63-54-104, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-3-203, (Renumbered from 63-54-105, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-3-204, (Renumbered from 63-54-106, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-3-205, (Renumbered from 63-54-107, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-3-206, (Renumbered from 63-54-108, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-3-207, (Renumbered from 63-54-109, as renumbered and amended by Laws of Utah 2006, Chapter 248)
63I-4-102, (Renumbered from 63-55a-1, as last amended by Laws of Utah 2003, Chapter 193)
63I-4-201, (Renumbered from 63-55a-2, as last amended by Laws of Utah 2003, Chapter 193)
63I-4-202, (Renumbered from 63-55a-3, as last amended by Laws of Utah 2003, Chapter 193)
63I-5-101, (Renumbered from 63-91-101, as enacted by Laws of Utah 1995, Chapter 280)
63I-5-102, (Renumbered from 63-91-102, as last amended by Laws of Utah 2007, Chapter 329)
63I-5-201, (Renumbered from 63-91-201, as last amended by Laws of Utah 2007, Chapter 356)
63I-5-301, (Renumbered from 63-91-301, as last amended by Laws of Utah 1996, Chapter 293)
63I-5-302, (Renumbered from 63-91-302, as last amended by Laws of Utah 1996, Chapter 293)
63I-5-401, (Renumbered from 63-91-401, as last amended by Laws of Utah 1996, Chapter 293)
63J-1-101, (Renumbered from 63-38-1, as enacted by Laws of Utah 1969, Chapter 207)
63J-1-103, (Renumbered from 63-38-9.5, as last amended by Laws of Utah 2005, Chapter 71)
63J-1-201, (Renumbered from 63-38-2, as last amended by Laws of Utah 2007, Chapter 179)
63J-1-202, (Renumbered from 63-38-2.5, as last amended by Laws of Utah 2003, Chapters 88, and 319)
63J-1-203, (Renumbered from 63-38-2.6, as last amended by Laws of Utah 2007, Chapter 122)
63J-1-204, (Renumbered from 63-38-2.7, as enacted by Laws of Utah 2007, Chapter 328)
63J-1-301, (Renumbered from 63-38-3, as last amended by Laws of Utah 2006, Chapter 278)
63J-1-302, (Renumbered from 63-38-3.1, as enacted by Laws of Utah 2001, Chapter 267)
63J-1-303, (Renumbered from 63-38-3.2, as last amended by Laws of Utah 2003, Chapter 16)
63J-1-304, (Renumbered from 63-38-3.3, as last amended by Laws of Utah 2007, Chapter 329)
63J-1-305, (Renumbered from 63-38-3.4, as enacted by Laws of Utah 2001, Chapter 191)
63J-1-306, (Renumbered from 63-38-3.5, as last amended by Laws of Utah 2003, Chapter 5)
63J-1-307, (Renumbered from 63-38-3.6, as enacted by Laws of Utah 2002, Fifth Special Session, Chapter 20)
63J-1-308, (Renumbered from 63-38-4, as enacted by Laws of Utah 1969, Chapter 207)
63J-1-309, (Renumbered from 63-38-5, as last amended by Laws of Utah 1987, Chapter 92)
63J-1-310, (Renumbered from 63-38-6, as last amended by Laws of Utah 2001, Chapter 175)
63J-1-311, (Renumbered from 63-38-7, as last amended by Laws of Utah 1997, Chapter 169)
63J-1-401, (Renumbered from 63-38-8, as last amended by Laws of Utah 2004, Chapter 179)
63J-1-402, (Renumbered from 63-38-8.1, as last amended by Laws of Utah 2006, Chapter 278)
63J-1-403, (Renumbered from 63-38-8.2, as enacted by Laws of Utah 2004, Chapter 226)
63J-1-404, (Renumbered from 63-38-9, as last amended by Laws of Utah 2007, Chapter 122)
63J-1-405, (Renumbered from 63-38-10, as last amended by Laws of Utah 1987, Chapter 61)
63J-1-406, (Renumbered from 63-38-11, as last amended by Laws of Utah 1994, Chapter 216)
63J-1-407, (Renumbered from 63-38-11.5, as enacted by Laws of Utah 2004, Chapter 352)
63J-1-408, (Renumbered from 63-38-12, as enacted by Laws of Utah 1969, Chapter 207)
63J-1-409, (Renumbered from 63-38-13, as enacted by Laws of Utah 1969, Chapter 207)
63J-1-501, (Renumbered from 63-38-14, as last amended by Laws of Utah 2003, Chapter 16)
63J-1-502, (Renumbered from 63-38-15, as last amended by Laws of Utah 2003, Chapter 16)
63J-1-503, (Renumbered from 63-38-16, as enacted by Laws of Utah 1983, Chapter 10)
63J-2-101, (Renumbered from 63-38a-101, as enacted by Laws of Utah 1992, Chapter 259)
63J-2-102, (Renumbered from 63-38a-102, as last amended by Laws of Utah 2005, Chapter 71)
63J-2-201, (Renumbered from 63-38a-103, as enacted by Laws of Utah 1992, Chapter 259)
63J-2-202, (Renumbered from 63-38a-104, as last amended by Laws of Utah 1994, Chapter 211)
63J-3-101, (Renumbered from 63-38c-101, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-102, (Renumbered from 63-38c-102, as last amended by Laws of Utah 2004, Chapter 318)
63J-3-103, (Renumbered from 63-38c-103, as last amended by Laws of Utah 2007, Chapters 122, 206, and 328)
63J-3-201, (Renumbered from 63-38c-201, as last amended by Laws of Utah 2004, Chapter 318)
63J-3-202, (Renumbered from 63-38c-202, as last amended by Laws of Utah 2004, Chapter 318)
63J-3-203, (Renumbered from 63-38c-203, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-204, (Renumbered from 63-38c-204, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-205, (Renumbered from 63-38c-205, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-301, (Renumbered from 63-38c-301, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-401, (Renumbered from 63-38c-401, as renumbered and amended by Laws of Utah 1996, Chapter 275)
63J-3-402, (Renumbered from 63-38c-402, as last amended by Laws of Utah 2007, Chapters 201, and 206)
63J-4-101, (Renumbered from 63-38d-101, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-102, (Renumbered from 63-38d-102, as last amended by Laws of Utah 2007, Chapter 329)
63J-4-201, (Renumbered from 63-38d-201, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-202, (Renumbered from 63-38d-202, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-301, (Renumbered from 63-38d-301, as last amended by Laws of Utah 2004, Chapter 352)
63J-4-401, (Renumbered from 63-38d-401, as last amended by Laws of Utah 2005, Chapter 179)
63J-4-501, (Renumbered from 63-38d-501, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-502, (Renumbered from 63-38d-502, as last amended by Laws of Utah 2007, Chapter 66)
63J-4-503, (Renumbered from 63-38d-503, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-504, (Renumbered from 63-38d-504, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-505, (Renumbered from 63-38d-505, as enacted by Laws of Utah 2003, Chapter 16)
63J-4-601, (Renumbered from 63-38d-601, as last amended by Laws of Utah 2007, Chapter 329)
63J-4-602, (Renumbered from 63-38d-602, as enacted by Laws of Utah 2005, Chapter 298)
63J-4-603, (Renumbered from 63-38d-603, as last amended by Laws of Utah 2006, Chapter 292)
63J-4-604, (Renumbered from 63-38d-604, as enacted by Laws of Utah 2005, Chapter 298)
63J-4-605, (Renumbered from 63-38d-605, as enacted by Laws of Utah 2005, Chapter 298)
63J-5-102, (Renumbered from 63-38e-101, as enacted by Laws of Utah 2004, Chapter 352)
63J-5-103, (Renumbered from 63-38e-102, as enacted by Laws of Utah 2004, Chapter 352)
63J-5-201, (Renumbered from 63-38e-201, as enacted by Laws of Utah 2004, Chapter 352)
63J-5-202, (Renumbered from 63-38e-202, as enacted by Laws of Utah 2004, Chapter 352)
63J-5-203, (Renumbered from 63-38e-203, as enacted by Laws of Utah 2004, Chapter 352)
63J-5-204, (Renumbered from 63-38e-204, as enacted by Laws of Utah 2004, Chapter 352)
63J-6-201, (Renumbered from 63-61-1, as enacted by Laws of Utah 1984, Chapter 5)
63J-6-202, (Renumbered from 63-61-2, as last amended by Laws of Utah 1987, Chapter 202)
63J-6-203, (Renumbered from 63-61-3, as last amended by Laws of Utah 1987, Chapter 202)
63J-6-204, (Renumbered from 63-61-4, as enacted by Laws of Utah 1984, Chapter 5)
63K-1-101, (Renumbered from 63-5b-101, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-102, (Renumbered from 63-5b-102, as last amended by Laws of Utah 2007, Chapter 66)
63K-1-201, (Renumbered from 63-5b-201, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-202, (Renumbered from 63-5b-202, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-301, (Renumbered from 63-5b-301, as last amended by Laws of Utah 2007, Chapter 66)
63K-1-302, (Renumbered from 63-5b-302, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-401, (Renumbered from 63-5b-401, as last amended by Laws of Utah 2006, Chapter 286)
63K-1-501, (Renumbered from 63-5b-501, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-502, (Renumbered from 63-5b-502, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-503, (Renumbered from 63-5b-503, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-504, (Renumbered from 63-5b-504, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-601, (Renumbered from 63-5b-601, as enacted by Laws of Utah 1992, Chapter 294)
63K-1-602, (Renumbered from 63-5b-602, as enacted by Laws of Utah 1992, Chapter 294)
63K-2-102, (Renumbered from 63-53a-2, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-103, (Renumbered from 63-53a-1, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-201, (Renumbered from 63-53a-3, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-202, (Renumbered from 63-53a-4, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-203, (Renumbered from 63-53a-5, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-204, (Renumbered from 63-53a-6, as last amended by Laws of Utah 2005, Chapter 214)
63K-2-205, (Renumbered from 63-53a-7, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-206, (Renumbered from 63-53a-10, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-301, (Renumbered from 63-53a-8, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-302, (Renumbered from 63-53a-9, as enacted by Laws of Utah 1980, Chapter 23)
63K-2-303, (Renumbered from 63-53a-11, as enacted by Laws of Utah 1980, Chapter 23)
63K-3-102, (Renumbered from 63-5-2, as enacted by Laws of Utah 1981, Chapter 254)
63K-3-201, (Renumbered from 63-5-4, as last amended by Laws of Utah 2007, Chapter 66)
63K-3-301, (Renumbered from 63-5-5, as last amended by Laws of Utah 1996, Chapter 243)
63K-4-102, (Renumbered from 63-5a-1, as last amended by Laws of Utah 1994, Chapter 12)
63K-4-103, (Renumbered from 63-5a-2, as last amended by Laws of Utah 2006, Chapter 286)
63K-4-201, (Renumbered from 63-5a-3, as last amended by Laws of Utah 1994, Chapter 12)
63K-4-202, (Renumbered from 63-5a-4, as last amended by Laws of Utah 2006, Chapter 286)
63K-4-203, (Renumbered from 63-5a-5, as enacted by Laws of Utah 1981, Chapter 253)
63K-4-301, (Renumbered from 63-5a-6, as last amended by Laws of Utah 2006, Chapter 286)
63K-4-401, (Renumbered from 63-5a-7, as last amended by Laws of Utah 2007, Chapter 177)
63K-4-402, (Renumbered from 63-5a-8, as last amended by Laws of Utah 2007, Chapters 66, and 328)
63K-4-403, (Renumbered from 63-5a-9, as enacted by Laws of Utah 1981, Chapter 253)
63K-4-404, (Renumbered from 63-5a-11, as enacted by Laws of Utah 1981, Chapter 253)
63L-1-201, (Renumbered from 63-8-1, as last amended by Laws of Utah 1981, Chapter 262)
63L-1-202, (Renumbered from 63-8-2, Utah Code Annotated 1953)
63L-1-203, (Renumbered from 63-8-3, Utah Code Annotated 1953)
63L-1-204, (Renumbered from 63-8-4, as last amended by Laws of Utah 1980, Chapter 71)
63L-1-205, (Renumbered from 63-8-5, as last amended by Laws of Utah 1983, Chapter 292)
63L-1-206, (Renumbered from 63-8-6, as enacted by Laws of Utah 1985, Chapter 233)
63L-1-207, (Renumbered from 63-8-7, as enacted by Laws of Utah 1997, Chapter 239)
63L-2-201, (Renumbered from 63-34b-101, as enacted by Laws of Utah 2001, Chapter 287)
63L-3-101, (Renumbered from 63-90-1, as renumbered and amended by Laws of Utah 1994, Chapter 91)
63L-3-102, (Renumbered from 63-90-2, as last amended by Laws of Utah 2007, Chapter 306)
63L-3-201, (Renumbered from 63-90-3, as last amended by Laws of Utah 1997, Chapter 293)
63L-3-202, (Renumbered from 63-90-4, as renumbered and amended by Laws of Utah 1994, Chapter 91)
63L-4-102, (Renumbered from 63-90a-1, as last amended by Laws of Utah 2007, Chapter 329)
63L-4-103, (Renumbered from 63-90a-2, as enacted by Laws of Utah 1994, Chapter 91)
63L-4-201, (Renumbered from 63-90a-3, as enacted by Laws of Utah 1994, Chapter 91)
63L-4-301, (Renumbered from 63-90a-4, as last amended by Laws of Utah 1998, Chapters 295, and 321)
63L-5-101, (Renumbered from 63-90b-101, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-102, (Renumbered from 63-90b-102, as last amended by Laws of Utah 2007, Chapter 329)
63L-5-201, (Renumbered from 63-90b-201, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-301, (Renumbered from 63-90b-301, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-302, (Renumbered from 63-90b-302, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-401, (Renumbered from 63-90b-401, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-402, (Renumbered from 63-90b-402, as enacted by Laws of Utah 2005, Chapter 99)
63L-5-403, (Renumbered from 63-90b-403, as enacted by Laws of Utah 2005, Chapter 99)
63M-1-101, (Renumbered from 63-38f-101, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-102, (Renumbered from 63-38f-102, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-201, (Renumbered from 63-38f-201, as enacted by Laws of Utah 2005, Chapter 148)
63M-1-202, (Renumbered from 63-38f-202, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-203, (Renumbered from 63-38f-203, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-204, (Renumbered from 63-38f-204, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-205, (Renumbered from 63-38f-205, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-301, (Renumbered from 63-38f-301, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-302, (Renumbered from 63-38f-302, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-303, (Renumbered from 63-38f-303, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-304, (Renumbered from 63-38f-304, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-401, (Renumbered from 63-38f-401, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-402, (Renumbered from 63-38f-402, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-403, (Renumbered from 63-38f-403, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-404, (Renumbered from 63-38f-404, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-405, (Renumbered from 63-38f-405, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-406, (Renumbered from 63-38f-406, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-407, (Renumbered from 63-38f-407, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-408, (Renumbered from 63-38f-408, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-409, (Renumbered from 63-38f-409, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-410, (Renumbered from 63-38f-410, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-411, (Renumbered from 63-38f-411, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-412, (Renumbered from 63-38f-412, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-413, (Renumbered from 63-38f-413, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-414, (Renumbered from 63-38f-414, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-415, (Renumbered from 63-38f-415, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-416, (Renumbered from 63-38f-416, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-501, (Renumbered from 63-38f-501, as last amended by Laws of Utah 2007, Chapter 306)
63M-1-502, (Renumbered from 63-38f-501.5, as enacted by Laws of Utah 2006, Chapter 52)
63M-1-503, (Renumbered from 63-38f-502, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-504, (Renumbered from 63-38f-503, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-601, (Renumbered from 63-38f-601, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-602, (Renumbered from 63-38f-602, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-603, (Renumbered from 63-38f-603, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-604, (Renumbered from 63-38f-604, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-605, (Renumbered from 63-38f-605, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-606, (Renumbered from 63-38f-606, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-607, (Renumbered from 63-38f-607, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-608, (Renumbered from 63-38f-608, as last amended by Laws of Utah 2007, Chapter 286)
63M-1-701, (Renumbered from 63-38f-702, as last amended by Laws of Utah 2007, Chapter 11)
63M-1-702, (Renumbered from 63-38f-701, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-703, (Renumbered from 63-38f-703, as last amended by Laws of Utah 2007, Chapter 11)
63M-1-704, (Renumbered from 63-38f-704, as last amended by Laws of Utah 2007, Chapter 11)
63M-1-705, (Renumbered from 63-38f-705, as enacted by Laws of Utah 2007, Chapter 11)
63M-1-801, (Renumbered from 63-38f-801, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-802, (Renumbered from 63-38f-802, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-901, (Renumbered from 63-38f-901, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-902, (Renumbered from 63-38f-902, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-903, (Renumbered from 63-38f-903, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-904, (Renumbered from 63-38f-903.5, as enacted by Laws of Utah 2007, Chapter 50)
63M-1-905, (Renumbered from 63-38f-904, as last amended by Laws of Utah 2007, Chapter 328)
63M-1-906, (Renumbered from 63-38f-905, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-907, (Renumbered from 63-38f-906, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-908, (Renumbered from 63-38f-907, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-909, (Renumbered from 63-38f-908, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-910, (Renumbered from 63-38f-909, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1001, (Renumbered from 63-38f-1001, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1002, (Renumbered from 63-38f-1002, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1003, (Renumbered from 63-38f-1003, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1101, (Renumbered from 63-38f-1101, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1102, (Renumbered from 63-38f-1102, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-1103, (Renumbered from 63-38f-1103, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1104, (Renumbered from 63-38f-1104, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1105, (Renumbered from 63-38f-1105, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1106, (Renumbered from 63-38f-1106, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1107, (Renumbered from 63-38f-1107, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1108, (Renumbered from 63-38f-1108, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1109, (Renumbered from 63-38f-1109, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1110, (Renumbered from 63-38f-1110, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-1111, (Renumbered from 63-38f-1111, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1112, (Renumbered from 63-38f-1112, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1201, (Renumbered from 63-38f-1201, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1202, (Renumbered from 63-38f-1202, as last amended by Laws of Utah 2005, Chapter 14 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1203, (Renumbered from 63-38f-1203, as last amended by Laws of Utah 2006, Chapter 223)
63M-1-1204, (Renumbered from 63-38f-1204, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1205, (Renumbered from 63-38f-1205, as last amended by Laws of Utah 2006, Chapter 14)
63M-1-1206, (Renumbered from 63-38f-1206, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1207, (Renumbered from 63-38f-1207, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1208, (Renumbered from 63-38f-1208, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1209, (Renumbered from 63-38f-1209, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1210, (Renumbered from 63-38f-1210, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1211, (Renumbered from 63-38f-1211, as last amended by Laws of Utah 2006, Chapters 46, and 52)
63M-1-1212, (Renumbered from 63-38f-1212, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1213, (Renumbered from 63-38f-1213, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1214, (Renumbered from 63-38f-1214, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1215, (Renumbered from 63-38f-1215, as last amended by Laws of Utah 2005, Chapter 14 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1216, (Renumbered from 63-38f-1216, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1217, (Renumbered from 63-38f-1217, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1218, (Renumbered from 63-38f-1218, as last amended by Laws of Utah 2005, Chapter 14 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1219, (Renumbered from 63-38f-1219, as last amended by Laws of Utah 2005, Chapter 14 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1220, (Renumbered from 63-38f-1220, as last amended by Laws of Utah 2005, Chapter 14 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1221, (Renumbered from 63-38f-1221, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1222, (Renumbered from 63-38f-1222, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1223, (Renumbered from 63-38f-1223, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1224, (Renumbered from 63-38f-1224, as last amended by Laws of Utah 2006, Chapter 14)
63M-1-1301, (Renumbered from 63-38f-1301, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1302, (Renumbered from 63-38f-1302, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1303, (Renumbered from 63-38f-1303, as last amended by Laws of Utah 2005, Chapter 3 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1304, (Renumbered from 63-38f-1304, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1305, (Renumbered from 63-38f-1305, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1306, (Renumbered from 63-38f-1306, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1307, (Renumbered from 63-38f-1307, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1308, (Renumbered from 63-38f-1308, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1309, (Renumbered from 63-38f-1309, as last amended by Laws of Utah 2005, Chapter 272 and renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1401, (Renumbered from 63-38f-1406, as last amended by Laws of Utah 2005, First Special Session, Chapter 12)
63M-1-1402, (Renumbered from 63-38f-1407, as last amended by Laws of Utah 2005, First Special Session, Chapter 12)
63M-1-1403, (Renumbered from 63-38f-1408, as last amended by Laws of Utah 2005, First Special Session, Chapter 12)
63M-1-1404, (Renumbered from 63-38f-1409, as last amended by Laws of Utah 2005, First Special Session, Chapter 12)
63M-1-1405, (Renumbered from 63-38f-1410, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1406, (Renumbered from 63-38f-1411, as last amended by Laws of Utah 2007, Chapter 128)
63M-1-1501, (Renumbered from 63-38f-1501, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1502, (Renumbered from 63-38f-1502, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1503, (Renumbered from 63-38f-1503, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1504, (Renumbered from 63-38f-1504, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1505, (Renumbered from 63-38f-1505, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1601, (Renumbered from 63-38f-1601, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1602, (Renumbered from 63-38f-1602, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1603, (Renumbered from 63-38f-1603, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1604, (Renumbered from 63-38f-1604, as last amended by Laws of Utah 2006, Chapter 52)
63M-1-1605, (Renumbered from 63-38f-1605, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1606, (Renumbered from 63-38f-1606, as renumbered and amended by Laws of Utah 2005, Chapter 148)
63M-1-1701, (Renumbered from 63-38f-1701, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1702, (Renumbered from 63-38f-1702, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1703, (Renumbered from 63-38f-1703, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1704, (Renumbered from 63-38f-1704, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1705, (Renumbered from 63-38f-1705, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1706, (Renumbered from 63-38f-1706, as enacted by Laws of Utah 2005, Chapter 272)
63M-1-1801, (Renumbered from 63-38f-1801, as enacted by Laws of Utah 2005, Chapter 210)
63M-1-1802, (Renumbered from 63-38f-1802, as enacted by Laws of Utah 2005, Chapter 210)
63M-1-1803, (Renumbered from 63-38f-1803, as enacted by Laws of Utah 2005, Chapter 210)
63M-1-1804, (Renumbered from 63-38f-1804, as enacted by Laws of Utah 2005, Chapter 210)
63M-1-1805, (Renumbered from 63-38f-1805, as enacted by Laws of Utah 2005, Chapter 210)
63M-1-1901, (Renumbered from 63-38f-1901, as enacted by Laws of Utah 2005, Chapter 191)
63M-1-2001, (Renumbered from 63-38f-2001, as enacted by Laws of Utah 2005, Chapter 151)
63M-1-2002, (Renumbered from 63-38f-2002, as last amended by Laws of Utah 2007, Chapter 329)
63M-1-2003, (Renumbered from 63-38f-2003, as enacted by Laws of Utah 2005, Chapter 151)
63M-1-2004, (Renumbered from 63-38f-2004, as enacted by Laws of Utah 2005, Chapter 151)
63M-1-2005, (Renumbered from 63-38f-2005, as enacted by Laws of Utah 2005, Chapter 151)
63M-1-2006, (Renumbered from 63-38f-2006, as enacted by Laws of Utah 2005, Chapter 151)
63M-1-2101, (Renumbered from 63-38f-2101, as enacted by Laws of Utah 2006, Chapter 146)
63M-1-2201, (Renumbered from 63-38f-2201, as enacted by Laws of Utah 2007, Chapter 3)
63M-1-2202, (Renumbered from 63-38f-2202, as enacted by Laws of Utah 2007, Chapter 3)
63M-1-2203, (Renumbered from 63-38f-2203, as enacted by Laws of Utah 2007, Chapter 3)
63M-1-2301, (Renumbered from 63-38f-2301, as enacted by Laws of Utah 2007, Chapter 327)
63M-1-2302, (Renumbered from 63-38f-2302, as enacted by Laws of Utah 2007, Chapter 327)
63M-1-2303, (Renumbered from 63-38f-2303, as enacted by Laws of Utah 2007, Chapter 327)
63M-1-2304, (Renumbered from 63-38f-2304, as enacted by Laws of Utah 2007, Chapter 327)
63M-1-2305, (Renumbered from 63-38f-2305, as enacted by Laws of Utah 2007, Chapter 327)
63M-1-2306, (Renumbered from 63-38f-2306, as enacted by Laws of Utah 2007, Chapter 327)
63M-2-101, (Renumbered from 63-38g-101, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-102, (Renumbered from 63-38g-102, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-201, (Renumbered from 63-38g-201, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-202, (Renumbered from 63-38g-202, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-203, (Renumbered from 63-38g-203, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-204, (Renumbered from 63-38g-204, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-301, (Renumbered from 63-38g-301, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-302, (Renumbered from 63-38g-302, as enacted by Laws of Utah 2006, Chapter 123)
63M-2-303, (Renumbered from 63-38g-303, as enacted by Laws of Utah 2006, Chapter 123)
63M-3-102, (Renumbered from 63-45a-1, as last amended by Laws of Utah 1987, Chapter 92)
63M-3-103, (Renumbered from 63-45a-2, as last amended by Laws of Utah 1994, Chapter 12)
63M-3-201, (Renumbered from 63-45a-3, as enacted by Laws of Utah 1980, Chapter 26)
63M-3-202, (Renumbered from 63-45a-4, as enacted by Laws of Utah 1980, Chapter 26)
63M-4-101, (Renumbered from 63-53b-101, as enacted by Laws of Utah 2006, Chapter 180)
63M-4-102, (Renumbered from 63-53b-102, as enacted by Laws of Utah 2006, Chapter 180)
63M-4-201, (Renumbered from 63-53b-201, as last amended by Laws of Utah 2007, Chapter 66)
63M-4-202, (Renumbered from 63-53b-202, as enacted by Laws of Utah 2006, Chapter 180)
63M-4-203, (Renumbered from 63-53b-203, as enacted by Laws of Utah 2006, Chapter 180)
63M-4-301, (Renumbered from 63-53b-301, as last amended by Laws of Utah 2007, Chapter 346)
63M-4-302, (Renumbered from 63-53b-302, as enacted by Laws of Utah 2006, Chapter 180)
63M-5-102, (Renumbered from 63-51-1, as last amended by Laws of Utah 1981, Chapter 242)
63M-5-103, (Renumbered from 63-51-2, as last amended by Laws of Utah 2007, Chapter 329)
63M-5-201, (Renumbered from 63-51-3, as last amended by Laws of Utah 1988, Chapter 3)
63M-5-202, (Renumbered from 63-51-4, as last amended by Laws of Utah 2006, Chapter 253)
63M-5-301, (Renumbered from 63-51-5, as last amended by Laws of Utah 1991, Chapter 137)
63M-5-302, (Renumbered from 63-51-6, as last amended by Laws of Utah 1994, Chapter 120)
63M-5-303, (Renumbered from 63-51-7, as last amended by Laws of Utah 1987, Chapter 5)
63M-5-304, (Renumbered from 63-51-8, as last amended by Laws of Utah 1994, Chapter 120)
63M-5-305, (Renumbered from 63-51-9, as enacted by Laws of Utah 1975, Chapter 133)
63M-5-306, (Renumbered from 63-51-10, as last amended by Laws of Utah 2005, Chapter 148)
63M-6-201, (Renumbered from 63-49a-1, as last amended by Laws of Utah 2005, Chapter 148)
63M-6-202, (Renumbered from 63-49a-2, as last amended by Laws of Utah 2005, Chapter 148)
63M-6-203, (Renumbered from 63-49a-3, as last amended by Laws of Utah 2005, Chapter 148)
63M-7-201, (Renumbered from 63-25a-101, as last amended by Laws of Utah 1999, Chapter 270)
63M-7-202, (Renumbered from 63-25a-102, as last amended by Laws of Utah 2007, Chapter 330)
63M-7-203, (Renumbered from 63-25a-103, as last amended by Laws of Utah 2002, Chapter 176)
63M-7-204, (Renumbered from 63-25a-104, as last amended by Laws of Utah 2007, Chapter 330)
63M-7-205, (Renumbered from 63-25a-104.5, as last amended by Laws of Utah 1999, Chapter 270)
63M-7-206, (Renumbered from 63-25a-105, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-207, (Renumbered from 63-25a-106, as renumbered and amended by Laws of Utah 1996, Chapter 242 and repealed and reenacted by Laws of Utah 1996, Chapter 243)
63M-7-301, (Renumbered from 63-25a-201, as last amended by Laws of Utah 2003, Chapter 171)
63M-7-302, (Renumbered from 63-25a-202, as last amended by Laws of Utah 2002, Chapter 115)
63M-7-303, (Renumbered from 63-25a-203, as last amended by Laws of Utah 2007, Chapter 218)
63M-7-304, (Renumbered from 63-25a-205, as last amended by Laws of Utah 2002, Chapter 115)
63M-7-305, (Renumbered from 63-25a-205.5, as last amended by Laws of Utah 2007, Chapter 218)
63M-7-306, (Renumbered from 63-25a-207, as last amended by Laws of Utah 2002, Chapter 115)
63M-7-401, (Renumbered from 63-25a-301, as last amended by Laws of Utah 2003, Chapter 171)
63M-7-402, (Renumbered from 63-25a-302, as last amended by Laws of Utah 1997, Chapter 276)
63M-7-403, (Renumbered from 63-25a-303, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-404, (Renumbered from 63-25a-304, as last amended by Laws of Utah 1997, Chapter 342)
63M-7-405, (Renumbered from 63-25a-305, as last amended by Laws of Utah 1996, Chapter 243 and renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-406, (Renumbered from 63-25a-306, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-501, (Renumbered from 63-25a-401, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-502, (Renumbered from 63-25a-402, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-503, (Renumbered from 63-25a-403, as last amended by Laws of Utah 2002, Chapter 35)
63M-7-504, (Renumbered from 63-25a-404, as last amended by Laws of Utah 2002, Chapter 176)
63M-7-505, (Renumbered from 63-25a-405, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-506, (Renumbered from 63-25a-406, as last amended by Laws of Utah 2007, Chapter 300)
63M-7-507, (Renumbered from 63-25a-407, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-508, (Renumbered from 63-25a-408, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-509, (Renumbered from 63-25a-409, as last amended by Laws of Utah 2000, Chapter 235)
63M-7-510, (Renumbered from 63-25a-410, as last amended by Laws of Utah 2000, Chapters 28, and 235)
63M-7-511, (Renumbered from 63-25a-411, as last amended by Laws of Utah 2002, Chapters 35, and 256)
63M-7-512, (Renumbered from 63-25a-412, as last amended by Laws of Utah 2000, Chapter 235)
63M-7-513, (Renumbered from 63-25a-413, as last amended by Laws of Utah 2001, Chapter 116)
63M-7-514, (Renumbered from 63-25a-414, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-515, (Renumbered from 63-25a-415, as last amended by Laws of Utah 2000, Chapter 235)
63M-7-516, (Renumbered from 63-25a-416, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-517, (Renumbered from 63-25a-417, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-518, (Renumbered from 63-25a-418, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-519, (Renumbered from 63-25a-419, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-520, (Renumbered from 63-25a-420, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-521, (Renumbered from 63-25a-421, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-522, (Renumbered from 63-25a-422, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-523, (Renumbered from 63-25a-423, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-524, (Renumbered from 63-25a-424, as renumbered and amended by Laws of Utah 1996, Chapter 242)
63M-7-525, (Renumbered from 63-25a-428, as last amended by Laws of Utah 2002, Chapter 256)
63M-7-601, (Renumbered from 63-25a-601, as enacted by Laws of Utah 2007, Chapter 300)
63M-7-602, (Renumbered from 63-25a-602, as enacted by Laws of Utah 2007, Chapter 300)
63M-7-603, (Renumbered from 63-25a-603, as enacted by Laws of Utah 2007, Chapter 300)
63M-7-604, (Renumbered from 63-25a-604, as enacted by Laws of Utah 2007, Chapter 300)
63M-7-605, (Renumbered from 63-25a-605, as enacted by Laws of Utah 2007, Chapter 300)
63M-8-201, (Renumbered from 63-47-1, as last amended by Laws of Utah 2004, Chapter 238)
63M-8-202, (Renumbered from 63-47-2, as last amended by Laws of Utah 2004, Chapter 238)
63M-8-203, (Renumbered from 63-47-3, as last amended by Laws of Utah 2004, Chapter 238)
63M-8-204, (Renumbered from 63-47-4, as enacted by Laws of Utah 1973, Chapter 173)
63M-8-301, (Renumbered from 63-47-5, as last amended by Laws of Utah 2004, Chapter 238)
63M-8-302, (Renumbered from 63-47-7, as last amended by Laws of Utah 2004, Chapters 238, and 352)
63M-8-303, (Renumbered from 63-47-8, as enacted by Laws of Utah 1973, Chapter 173)
63M-9-101, (Renumbered from 63-75-1, as last amended by Laws of Utah 1996, Chapter 136)
63M-9-102, (Renumbered from 63-75-2, as last amended by Laws of Utah 1999, Chapter 104)
63M-9-103, (Renumbered from 63-75-3, as last amended by Laws of Utah 2003, Chapter 171)
63M-9-104, (Renumbered from 63-75-8, as enacted by Laws of Utah 1996, Chapter 136)
63M-9-201, (Renumbered from 63-75-4, as last amended by Laws of Utah 1999, Chapter 104)
63M-9-202, (Renumbered from 63-75-5, as last amended by Laws of Utah 2003, Chapter 171)
63M-9-203, (Renumbered from 63-75-5.5, as enacted by Laws of Utah 1993, Chapter 12)
63M-9-301, (Renumbered from 63-75-5.7, as last amended by Laws of Utah 1996, Chapter 136)
63M-9-401, (Renumbered from 63-75-6, as last amended by Laws of Utah 2005, Chapter 81)
63M-9-402, (Renumbered from 63-75-6.5, as enacted by Laws of Utah 1996, Chapter 136)
63M-9-501, (Renumbered from 63-75-7, as last amended by Laws of Utah 2002, Chapter 210)
63M-10-101, (Renumbered from 63-92-1, as enacted by Laws of Utah 1996, Chapter 165)
63M-10-201, (Renumbered from 63-92-2, as last amended by Laws of Utah 1999, Chapter 304)
63M-10-202, (Renumbered from 63-92-3, as last amended by Laws of Utah 2003, Chapter 171)
63M-11-101, (Renumbered from 63-99-101, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-102, (Renumbered from 63-99-103, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-103, (Renumbered from 63-99-102, as last amended by Laws of Utah 2007, Chapter 317)
63M-11-201, (Renumbered from 63-99-104, as last amended by Laws of Utah 2007, Chapter 317)
63M-11-202, (Renumbered from 63-99-105, as last amended by Laws of Utah 2007, Chapter 317)
63M-11-203, (Renumbered from 63-99-106, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-204, (Renumbered from 63-99-107, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-205, (Renumbered from 63-99-108, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-206, (Renumbered from 63-99-109, as enacted by Laws of Utah 2005, Chapter 279)
63M-11-207, (Renumbered from 63-99-110, as repealed and reenacted by Laws of Utah 2007, Chapter 317)
REPEALS:
63-46a-17, as enacted by Laws of Utah 2001, Chapter 138
63-97-101, as last amended by Laws of Utah 2000, Chapters 293, and 351
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 3-1-6 is amended to read:
3-1-6
. Filing articles of incorporation -- Certificate of incorporation -- Fees -- Constructive notice.(1) The articles of incorporation shall be filed with the Division of Corporations and Commercial Code, which shall thereupon issue a certificate of incorporation. This certificate or a certified copy of the same shall be prima facie evidence of the due incorporation of the association. Upon the issuance of such certificate of incorporation, the corporate existence begins.
(2) The Division of Corporations and Commercial Code shall establish a fee pursuant to Section [63-38-3.2] 63J-1-303 for filing articles of incorporation with the division, for securing a certified copy of the articles, for the issuance of a certificate of incorporation, and for filing amendments to the articles, whether incorporated with or without stock.
(3) No person dealing with the association may be charged with constructive notice of the contents of the articles or amendments thereto by reason of such filing or recording.
Section 2. Section 3-1-36 is amended to read:
3-1-36
. Articles of merger or consolidation -- Execution, contents, and filing of articles -- Issuance of certificate of merger or consolidation -- Fees.(1) Upon approval, articles of merger or consolidation shall be signed in duplicate by each party to the merger or consolidation by its president or a vice president and by its secretary or an assistant secretary and verified by one of the officers of each association and corporation signing the articles.
(2) The articles shall set forth:
(a) the plan of merger or consolidation;
(b) a statement:
(i) of the date of the meeting at which the plan of merger or consolidation was considered and voted upon;
(ii) that a quorum was present at the meeting; and
(iii) that notice of the meeting was given to all members and shareholders entitled to notice;
(c) the number of members entitled to vote and the number of shares outstanding entitled to vote; and
(d) the number of members who voted for and against the plan, respectively, and the number of shares voted for and against the plan, respectively.
(3) (a) Duplicate originals of the articles of merger or consolidation shall be delivered to the Division of Corporations and Commercial Code and the fee established under Section [63-38-3.2] 63J-1-303 shall be paid.
(b) If the Division of Corporations and Commercial Code finds that the articles conform to law, it shall, after the fees have been paid:
(i) endorse on each of the duplicate originals the word "filed" and the month, day, and year of the filing;
(ii) file one of the duplicate originals in its office; and
(iii) issue a certificate of merger or consolidation, attach the other duplicate original, and return the certificate to the surviving or new corporation, or its representative.
Section 3. Section 4-1-3.5 is amended to read:
4-1-3.5
. Procedures -- Adjudicative proceedings.The Department of Agriculture and Food and its divisions shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 4. Section 4-2-2 is amended to read:
4-2-2
. Functions, powers, and duties of department -- Fees for services -- Marketing orders -- Procedure.(1) The department shall:
(a) inquire into and promote the interests and products of agriculture and its allied industries;
(b) promote methods for increasing the production and facilitating the distribution of the agricultural products of the state;
(c) (i) inquire into the cause of contagious, infectious, and communicable diseases among livestock and the means for their prevention and cure; and
(ii) initiate, implement, and administer plans and programs to prevent the spread of diseases among livestock;
(d) encourage experiments designed to determine the best means and methods for the control of diseases among domestic and wild animals;
(e) issue marketing orders for any designated agricultural product to:
(i) promote orderly market conditions for any product;
(ii) give the producer a fair return on the producer's investment at the marketplace; and
(iii) only promote and not restrict or restrain the marketing of Utah agricultural commodities;
(f) administer and enforce all laws assigned to the department by the Legislature;
(g) establish standards and grades for agricultural products and fix and collect reasonable fees for services performed by the department in conjunction with the grading of agricultural products;
(h) establish operational standards for any establishment that manufactures, processes, produces, distributes, stores, sells, or offers for sale any agricultural product;
(i) adopt, according to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, rules necessary for the effective administration of the agricultural laws of the state;
(j) when necessary, make investigations, subpoena witnesses and records, conduct hearings, issue orders, and make recommendations concerning all matters related to agriculture;
(k) (i) inspect any nursery, orchard, farm, garden, park, cemetery, greenhouse, or any private or public place that may become infested or infected with harmful insects, plant diseases, noxious or poisonous weeds, or other agricultural pests;
(ii) establish and enforce quarantines;
(iii) issue and enforce orders and rules for the control and eradication of pests, wherever they may exist within the state; and
(iv) perform other duties relating to plants and plant products considered advisable and not contrary to law;
(l) inspect apiaries for diseases inimical to bees and beekeeping;
(m) take charge of any agricultural exhibit within the state, if considered necessary by the department, and award premiums at that exhibit;
(n) assist the Conservation Commission in the administration of Title 4, Chapter 18, Conservation Commission Act, and administer and disburse any funds available to assist conservation districts in the state in the conservation of the state's soil and water resources; and
(o) perform any additional functions, powers, and duties provided by law.
(2) The department, by following the procedures and requirements of Section [63-38-3.2] 63J-1-303, may adopt a schedule of fees assessed for services provided by the department.
(3) (a) No marketing order issued under Subsection (1)(e) shall take effect until:
(i) the department gives notice of the proposed order to the producers and handlers of the affected product;
(ii) the commissioner conducts a hearing on the proposed order; and
(iii) at least 50% of the registered producers and handlers of the affected products vote in favor of the proposed order.
(b) (i) The department may establish boards of control to administer marketing orders and the proceeds derived from any order.
(ii) The board of control shall:
(A) ensure that all proceeds are placed in an account in the board of control's name in a depository institution; and
(B) ensure that the account is annually audited by an accountant approved by the commissioner.
(4) Funds collected by grain grading, as provided by Subsection (1)(g), shall be deposited in the General Fund as nonlapsing dedicated credits for the grain grading program.
Section 5. Section 4-2-8.5 is amended to read:
4-2-8.5
. Salinity Offset Fund.(1) As used in this section, "Colorado River Salinity Offset Program" means a program, administered by the Division of Water Quality, allowing oil, gas, or mining companies and other entities to provide funds to finance salinity reduction projects in the Colorado River Basin by purchasing salinity credits as offsets against discharges made by the company under permits issued by the Division of Water Quality.
(2) (a) There is created a restricted special revenue fund known as the "Salinity Offset Fund."
(b) The fund shall consist of:
(i) monies received from the Division of Water Quality that have been collected as part of the Colorado River Salinity Offset Program;
(ii) grants from local governments, the state, or the federal government;
(iii) grants from private entities; and
(iv) interest on fund monies.
(3) Any unallocated balance in the fund at the end of a fiscal year is nonlapsing.
(4) (a) The department shall:
(i) subject to the rules established under Subsection (4)(a)(ii), distribute fund monies to farmers, ranchers, mutual irrigation companies, and other entities in the state to assist in financing irrigation, rangeland, and watershed improvement projects that will, in accordance with the Colorado River Salinity Offset Program, reduce salinity in the Colorado River; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules establishing:
(A) a project funding application process;
(B) project funding requirements;
(C) project approval criteria; and
(D) standards for evaluating the effectiveness of funded projects in reducing salinity in the Colorado River.
(b) The department may require entities seeking fund monies to provide matching funds.
(c) The department shall submit to the Water Quality Board's executive secretary proposed funding projects for the executive secretary's review and approval.
(5) The department may use fund monies for the administration of the fund, but this amount may not exceed 10% of the annual receipts to the fund.
Section 6. Section 4-3-2 is amended to read:
4-3-2
. Authority to make and enforce rules.The department is authorized and directed, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as may in its judgment and discretion be necessary to carry out the purposes of this chapter.
Section 7. Section 4-3-14 is amended to read:
4-3-14
. Sale of raw milk -- Suspension of producer's permit -- Severability not permitted.(1) As used in this section:
(a) "Batch" means all the milk emptied from one bulk tank and bottled in a single day.
(b) "Self-owned retail store" means a retail store:
(i) of which the producer owns at least 51% of the value of the real property and tangible personal property used in the operations of the retail store; or
(ii) for which the producer has the power to vote at least 51% of any class of voting shares or ownership interest in the business entity that operates the retail store.
(2) Raw milk may be sold if:
(a) the producer obtains a permit from the department to produce milk under Subsection 4-3-8(5);
(b) the sale and delivery of the milk is made upon the premises where the milk is produced, except as provided by Subsection (3);
(c) it is sold to consumers for household use and not for resale;
(d) it is bottled or packaged under sanitary conditions and in sanitary containers on the premises where the milk is produced;
(e) it is labeled "raw milk" and meets the labeling requirements under 21 C.F.R. Parts 101 and 131 and rules established by the department;
(f) it is:
(i) cooled to 50 degrees Fahrenheit or a lower temperature within one hour after being drawn from the animal;
(ii) further cooled to 41 degrees Fahrenheit within two hours of being drawn from the animal; and
(iii) maintained at 41 degrees Fahrenheit or a lower temperature until it is delivered to the consumer;
(g) the bacterial count of the milk does not exceed 20,000 colony forming units per milliliter;
(h) the bacterial plate count and the coliform count of the milk meet the bacterial and coliform enforcement standards for grade A pasteurized milk;
(i) the production of the milk conforms to departmental rules for the production of grade A milk;
(j) all dairy animals on the premises are:
(i) permanently and individually identifiable; and
(ii) free of tuberculosis, brucellosis, and other diseases carried through milk; and
(k) any person on the premises performing any work in connection with the production, bottling, handling, or sale of the milk is free from communicable disease.
(3) A producer may sell raw whole milk at a self-owned retail store, which is properly staffed, if, in addition to the requirements of Subsection (2), the producer:
(a) transports the milk from the premises where the milk is produced to the self-owned retail store in a refrigerated truck where the milk is maintained at 41 degrees Fahrenheit or a lower temperature;
(b) retains ownership of the milk until it is sold to the final consumer, including transporting the milk from the premises where the milk is produced to the self-owned retail store without any:
(i) intervening storage;
(ii) change of ownership; or
(iii) loss of physical control;
(c) stores the milk at 41 degrees Fahrenheit or a lower temperature in a display case equipped with a properly calibrated thermometer at the self-owned retail store;
(d) places a sign above the display case at the self-owned retail store that reads, "Raw Unpasteurized Milk";
(e) labels the milk with:
(i) a date, no more than nine days after the milk is produced, by which the milk should be sold;
(ii) the statement "Raw milk, no matter how carefully produced, may be unsafe.";
(iii) handling instructions to preserve quality and avoid contamination or spoilage; and
(iv) any other information required by rule;
(f) refrains from offering the milk for sale until:
(i) each batch of milk is tested for standard plate count and coliform count from an official sample taken at the self-owned retail store and tested by a third party certified by the department; and
(ii) the test results meet the minimum standards established for those tests;
(g) (i) maintains a database of the milk sales; and
(ii) makes the database available to the Department of Health during the self-owned retail store's business hours for purposes of epidemiological investigation;
(h) refrains from offering any pasteurized milk at the self-owned retail store;
(i) ensures that the plant and retail store complies with Title 4, Chapter 5, Utah Wholesome Food Act, and the rules governing food establishments enacted under Section 4-5-9;
(j) participates in a hazard analysis critical control point system as established by the United States Food and Drug Administration;
(k) conducts monthly tests on a sample taken from a batch of milk for:
(i) Listeria monocytogenes;
(ii) Salmonella typhimurium;
(iii) Salmonella dublin;
(iv) Campylobacter jejuni; and
(v) E.Coli 0157:H7; and
(l) complies with all applicable rules adopted as authorized by this chapter.
(4) The person conducting the tests required by Subsection (3) shall send a copy of the test results to the department as soon as the test results are available.
(5) (a) The department shall adopt rules, as authorized by Section 4-3-2, governing the sale of raw whole milk at a self-owned retail store.
(b) The rules adopted by the department shall include rules regarding:
(i) permits;
(ii) building and premises requirements;
(iii) sanitation and operating requirements, including bulk milk tanks requirements;
(iv) additional tests, including a test for pathogens;
(v) frequency of inspections, including random cooler checks;
(vi) recordkeeping; and
(vii) packaging and labeling.
(c) (i) The department shall establish a fee for the tests and inspections required by this section and by rule by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(ii) Notwithstanding Section [63-38-3.2] 63J-1-303, the department shall retain the fees as dedicated credits and may only use the fees to administer and enforce this section.
(6) (a) The department shall suspend a permit issued under Section 4-3-8 if a producer violates any provision of this section or any rules adopted as authorized by this section.
(b) The department may reissue a permit that has been suspended under Subsection (6)(a) if the producer has complied with all of the requirements of this section and rules adopted as authorized by this section.
(7) For 2008 and 2009, the Department of Health and the Department of Agriculture and Food shall report on or before November 30th to the Natural Resources, Agriculture, and Environment Interim Committee and the Health and Human Services Interim Committee on any health problems resulting from the sale of raw whole milk at self-owned retail stores.
(8) (a) If any subsection of this section or the application of any subsection to any person or circumstance is held invalid by a final decision of a court of competent jurisdiction, the remainder of the section may not be given effect without the invalid subsection or application.
(b) The provisions of this section may not be severed.
Section 8. Section 4-4-2 is amended to read:
4-4-2
. Authority to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 9. Section 4-5-9 is amended to read:
4-5-9
. Registration of food establishments -- Fee -- Suspension and reinstatement of registration -- Inspection for compliance.(1) (a) Pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall establish rules providing for the registration of food establishments to protect public health and ensure a safe food supply.
(b) The owner or operator of a food establishment shall register with the department before operating a food establishment.
(c) Prior to granting a registration to the owner or operator of a food establishment, the department shall inspect and assess the food establishment to determine whether it complies with the rules established under Subsection (1)(a).
(d) An applicant shall register with the department, in writing, using forms required by the department.
(e) The department shall issue a registration to an applicant, if the department determines that the applicant meets the qualifications of registration established under Subsection (1)(a).
(f) If the applicant does not meet the qualifications of registration, the department shall notify the applicant, in writing, that the applicant's registration is denied.
(g) (i) If an applicant submits an incomplete application, a written notice of conditional denial of registration shall be provided to an applicant.
(ii) The applicant must correct the deficiencies within the time period specified in the notice to receive a registration.
(h) (i) The department may, as provided under Subsection 4-2-2(2), charge the food establishment a registration fee.
(ii) The department shall retain the fees as dedicated credits and shall use the fees to administer the registration of food establishments.
(2) (a) A registration, issued under this section, shall be valid from the date the department issues the registration, to December 31 of the year the registration is issued.
(b) A registration may be renewed for the following year by applying for renewal by December 31 of the year the registration expires.
(3) A registration, issued under this section, shall specify:
(a) the name and address of the food establishment;
(b) the name of the owner or operator of the food establishment; and
(c) the registration issuance and expiration date.
(4) (a) The department may immediately suspend a registration, issued under this section, if any of the conditions of registration have been violated.
(b) (i) The holder of a registration suspended under Subsection (4)(a) may apply for the reinstatement of a registration.
(ii) If the department determines that all registration requirements have been met, the department shall reinstate the registration.
(5) (a) A food establishment, registered under this section, shall allow the department to have access to the food establishment to determine if the food establishment is complying with the registration requirements.
(b) If a food establishment denies access for an inspection required under Subsection (5)(a), the department may suspend the food establishment's registration until the department is allowed access to the food establishment's premises.
Section 10. Section 4-5-9.5 is amended to read:
4-5-9.5
. Cottage food production operations.(1) For purposes of this chapter:
(a) "Cottage food production operation" means a person, who in the person's home, produces a food product that is not a potentially hazardous food or a food that requires time/temperature controls for safety.
(b) "Home" means a primary residence:
(i) occupied by the individual who is operating a cottage food production operation; and
(ii) which contains:
(A) a kitchen designed for common residential usage; and
(B) appliances designed for common residential usage.
(c) "Potentially hazardous food" or "food that requires time/temperature controls for safety":
(i) means a food that requires time and or temperature control for safety to limit pathogenic microorganism growth or toxin formation and is in a form capable of supporting:
(A) the rapid and progressive growth of infections or toxigenic microorganisms;
(B) the growth and toxin production of Clostridium botulinum; or
(C) in shell eggs, the growth of Salmonella enteritidis;
(ii) includes:
(A) an animal food;
(B) a food of animal origin that is raw or heat treated;
(C) a food of plant origin that is heat treated or consists of raw seed sprouts;
(D) cut melons;
(E) cut tomatoes; and
(F) garlic and oil mixtures that are not acidified or otherwise modified at a food establishment in a way that results in mixtures that do not support growth as specified under Subsection (1)(c)(i); and
(iii) does not include:
(A) an air-cooled hard-boiled egg with shell intact;
(B) a food with an actual weight or water activity value of 0.85 or less;
(C) a food with pH level of 4.6 or below when measured at 24 degrees Centigrade;
(D) a food, in an unopened hermetically sealed container, that is processed to achieve and maintain sterility under conditions of nonrefrigerated storage and distribution;
(E) a food for which laboratory evidence demonstrates that the rapid and progressive growth of items listed in Subsection (1)(c)(i) cannot occur, such as a food that:
(I) has an actual weight and a pH level that are above the levels specified under Subsections (1)(c)(iii)(B) and (C); or
(II) contains a preservative or other barrier to the growth of microorganisms, or a combination of barriers that inhibit the growth of microorganisms; or
(F) a food that does not support the growth of microorganisms as specified under Subsection (1)(c)(i) even though the food may contain an infectious or toxigenic microorganism or chemical or physical contaminant at a level sufficient to cause illness.
(2) (a) The department shall adopt rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to protect public health and ensure a safe food supply.
(b) Rules adopted pursuant to this Subsection (2) shall provide for:
(i) the registration of cottage food production operations as food establishments under this chapter;
(ii) the labeling of products from a cottage food production operation as "Home Produced"; and
(iii) other exceptions to the chapter that the department determines are appropriate and that are consistent with this section.
(3) Rules adopted pursuant to Subsection (2):
(a) may not require:
(i) the use of commercial surfaces such as stainless steel counters or cabinets;
(ii) the use of a commercial grade:
(A) sink;
(B) dishwasher; or
(C) oven;
(iii) a separate kitchen for the cottage food production operation; or
(iv) the submission of plans and specifications before construction of, or remodel of, a cottage food production operation; and
(b) may require:
(i) an inspection of a cottage food production operation:
(A) prior to issuing a registration for the cottage food production operation; and
(B) at other times if the department has reason to believe the cottage food production operation is operating:
(I) in violation of this chapter or an administrative rule adopted pursuant to this section; or
(II) in an unsanitary manner; and
(ii) the use of finished and cleanable surfaces.
(4) (a) The operator of a cottage food production operation shall:
(i) register with the department as a cottage food production operation before operating as a cottage food production operation; and
(ii) hold a valid food handler's permit.
(b) Notwithstanding the provisions of Subsections 4-5-9(1)(a) and (c), the department shall issue a registration to an applicant for a cottage food production operation if the applicant for the registration:
(i) passes the inspection required by Subsection (3)(b);
(ii) pays the fees required by the department; and
(iii) meets the requirements of this section.
(5) Notwithstanding the provisions of Section 26A-1-114, a local health department:
(a) does not have jurisdiction to regulate the production of food at a cottage food production operation operating in compliance with this section, as long as the products are not offered to the public for consumption on the premises; and
(b) does have jurisdiction to investigate a cottage food production operation in any investigation into the cause of a food born illness outbreak.
(6) A food service establishment as defined in Section 26-15a-102 may not use a product produced in a cottage food production operation as an ingredient in any food that is prepared by the food establishment and offered by the food establishment to the public for consumption.
Section 11. Section 4-9-2 is amended to read:
4-9-2
. Authority to promulgate rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 12. Section 4-9-15 is amended to read:
4-9-15
. Registration of commercial establishments using weights and measures -- Approved weights and measures inspectors -- Application -- Fee -- Expiration -- Renewal.(1) (a) Pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall establish rules providing for the registration of weights and measures users and issuance of certification of weights and measures devices to ensure the use of correct weights and measures in commerce or trade.
(b) The division may:
(i) determine whether weights and measures are correct through:
(A) inspection and testing by department employees; or
(B) acceptance of an inspection and testing report prepared by a registered weights and measures service person;
(ii) establish standards and qualifications for registered weights and measures service persons; and
(iii) determine the form and content of an inspection and testing report.
(c) A weights and measures user shall register with the department.
(d) Prior to granting a registration to a weights and measures user, the department shall determine whether the weights and measures user complies with the rules established under Subsection (1)(a).
(e) An applicant shall register with the department, in writing, using forms required by the department.
(f) The department shall issue a registration to an applicant, if the department determines that the applicant meets the qualifications of registration established under Subsection (1)(a).
(g) If the applicant does not meet the qualifications of registration, the department shall notify the applicant, in writing, that the applicant's registration is denied.
(h) (i) If an applicant submits an incomplete application, a written notice of conditional denial of registration shall be provided to an applicant.
(ii) The applicant must correct the deficiencies within the time period specified in the notice to receive a registration.
(i) (i) The department may, as provided under Subsection 4-2-2(2), charge the weights and measures user a registration fee.
(ii) The department shall retain the fees as dedicated credits and shall use the fees to administer the registration of weights and measures users.
(2) (a) A registration, issued under this section, shall be valid from the date the department issues the registration, to December 31 of the year the registration is issued.
(b) A registration may be renewed for the following year by applying for renewal by December 31 of the year the registration expires.
(3) A registration, issued under this section, shall specify:
(a) the name and address of the weights and measures user;
(b) the registration issuance and expiration date; and
(c) the number and type of weights and measures devices to be certified.
(4) (a) The department may immediately suspend a registration, issued under this section, if any of the requirements of Section 4-9-12 are violated.
(b) (i) The holder of a registration suspended under Subsection (4)(a) may apply for the reinstatement of a registration.
(ii) If the department determines that all requirements under Section 4-9-12 are being met, the department shall reinstate the registration.
(5) (a) A weights and measures user, registered under this section, shall allow the department access to the weights and measures user's place of business to determine if the weights and measures user is complying with the registration requirements.
(b) If a weights and measures user denies access for an inspection required under Subsection (5)(a), the department may suspend the weights and measures user's registration until the department is allowed access to the weights and measures user's place of business.
Section 13. Section 4-10-3 is amended to read:
4-10-3
. Authority to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 14. Section 4-11-3 is amended to read:
4-11-3
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as it considers necessary for the administration and enforcement of this chapter. Such rules shall include provisions for the identification of each apiary within the state.
Section 15. Section 4-12-3 is amended to read:
4-12-3
. Department authorized to make and enforce rules -- Cooperation with state and federal agencies authorized.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter and may cooperate with, or enter into agreements with, other agencies of this state, other states, and agencies of the United States in the administration and enforcement of this chapter.
Section 16. Section 4-14-3 is amended to read:
4-14-3
. Registration required for distribution -- Application -- Fees -- Renewal -- Local needs registration -- Distributor or applicator license -- Fees -- Renewal.(1) (a) No person may distribute a pesticide in this state that is not registered with the department.
(b) Application for registration shall be made to the department upon forms prescribed and furnished by it accompanied with an annual registration fee determined by the department pursuant to Subsection 4-2-2(2) for each pesticide registered.
(c) Upon receipt by the department of a proper application and payment of the appropriate fee, the commissioner shall issue a registration to the applicant allowing distribution of the registered pesticide in this state through June 30 of each year, subject to suspension or revocation for cause.
(d) (i) Each registration is renewable for a period of one year upon the payment of an annual registration renewal fee in an amount equal to the current applicable original registration fee.
(ii) Each renewal fee shall be paid on or before June 30 of each year.
(2) The application shall include the following information:
(a) the name and address of the applicant and the name and address of the person whose name will appear on the label, if other than the applicant's name;
(b) the name of the pesticide;
(c) a complete copy of the label which will appear on the pesticide; and
(d) any information prescribed by rule of the department considered necessary for the safe and effective use of the pesticide.
(3) (a) Forms for the renewal of registration shall be mailed to registrants at least 30 days before their registration expires.
(b) A registration in effect on June 30 for which a renewal application has been filed and the registration fee tendered shall continue in effect until the applicant is notified either that the registration is renewed or that it is suspended or revoked pursuant to Section 4-14-8.
(4) The department may, before approval of any registration, require the applicant to submit the complete formula of any pesticide including active and inert ingredients and may also, for any pesticide not registered according to 7 U.S.C. Sec. 136a or for any pesticide on which restrictions are being considered, require a complete description of all tests and test results that support the claims made by the applicant or the manufacturer of the pesticide.
(5) A registrant who desires to register a pesticide to meet special local needs according to 7 U.S.C. Sec. 136a(c) shall, in addition to complying with Subsections (1) and (2), satisfy the department that:
(a) a special local need exists;
(b) the pesticide warrants the claims made for it;
(c) the pesticide, if used in accordance with commonly accepted practices, will not cause unreasonable adverse effects on the environment; and
(d) the proposed classification for use conforms with 7 U.S.C. Sec. 136a(d).
(6) No registration is required for a pesticide distributed in this state pursuant to an experimental use permit issued by the EPA or under Section 4-14-5.
(7) No pesticide dealer may distribute a restricted use pesticide in this state without a license.
(8) A person must receive a license before applying:
(a) a restricted use pesticide; or
(b) a general use pesticide for hire or in exchange for compensation.
(9) (a) A license to engage in an activity listed in Subsection (7) or (8) may be obtained by:
(i) submitting an application on a form provided by the department;
(ii) paying the license fee determined by the department according to Subsection 4-2-2(2); and
(iii) complying with the rules adopted as authorized by this chapter.
(b) A person may apply for a license that expires on December 31:
(i) of the calendar year in which the license is issued; or
(ii) of the second calendar year after the calendar year in which the license is issued.
(c) (i) Notwithstanding Section [63-38-3.2] 63J-1-303, the department shall retain the fees as dedicated credits and may only use the fees to administer and enforce this chapter.
(ii) The Legislature may annually designate the revenue generated from the fee as nonlapsing in an appropriations act.
Section 17. Section 4-14-6 is amended to read:
4-14-6
. Department authorized to make and enforce rules.The department may, by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, adopt rules to:
(1) declare as a pest any form of plant or animal life that is injurious to health or the environment, except:
(a) a human being; or
(b) a bacteria, virus, or other microorganism on or in a living person or animal;
(2) establish, in accordance with the regulations promulgated by the EPA under 7 U.S.C. Sec. 136w(c)(2), whether pesticides registered for special local needs under the authority of 7 U.S.C. Sec. 136v(c) are highly toxic to man;
(3) establish, consistent with EPA regulations, that certain pesticides or quantities of substances contained in these pesticides are injurious to the environment;
(4) adopt a list of "restricted use pesticides" for the state or designated areas within the state if it determines upon substantial evidence presented at a public hearing and upon recommendation of the pesticide committee that restricted use is necessary to prevent damage to property or to the environment;
(5) establish qualifications for a pesticide applicator business; and
(6) adopt any rule, not inconsistent with federal regulations promulgated under FIFRA, considered necessary to administer and enforce this chapter, including rules relating to the sale, distribution, use, and disposition of pesticides if necessary to prevent damage and to protect the public health.
Section 18. Section 4-14-13 is amended to read:
4-14-13
. Registration required for a pesticide business.(1) A pesticide applicator business shall register with the department by:
(a) submitting an application on a form provided by the department;
(b) paying the registration fee; and
(c) certifying that the business is in compliance with this chapter and departmental rules authorized by this chapter.
(2) (a) By following the procedures and requirements of Section [63-38-3.2] 63J-1-303, the department shall establish a registration fee based on the number of pesticide applicators employed by the pesticide applicator business.
(b) (i) Notwithstanding Section [63-38-3.2] 63J-1-303, the department shall retain the fees as dedicated credits and may only use the fees to administer and enforce this chapter.
(ii) The Legislature may annually designate the revenue generated from the fee as nonlapsing in an appropriations act.
(3) (a) The department shall issue a pesticide applicator business a registration certificate if the pesticide applicator business:
(i) has complied with the requirements of this section; and
(ii) meets the qualifications established by rule.
(b) The department shall notify the pesticide applicator business in writing that the registration is denied if the pesticide applicator business does not meet the registration qualifications.
(4) A registration certificate expires on December 31 of the second calendar year after the calendar year in which the registration certificate is issued.
(5) (a) The department may suspend a registration certificate if the pesticide applicator business violates this chapter or any rules authorized by it.
(b) A pesticide applicator business whose registration certificate has been suspended may apply to the department for reinstatement of the registration certificate by demonstrating compliance with this chapter and rules authorized by it.
(6) A pesticide applicator business shall:
(a) only employ a pesticide applicator who has received a license from the department, as required by Section 4-14-3; and
(b) ensure that all employees comply with this chapter and the rules authorized by it.
Section 19. Section 4-15-3 is amended to read:
4-15-3
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 20. Section 4-16-3 is amended to read:
4-16-3
. Department authorized to make and enforce rules -- Cooperation with state and federal agencies authorized.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are deemed necessary to administer and enforce this chapter; and, in conjunction with its administration and enforcement, it is authorized to cooperate with other state agencies, other states, and with the United States Department of Agriculture or other departments or agencies of the federal government.
Section 21. Section 4-18-5 is amended to read:
4-18-5
. Conservation commission -- Functions and duties.(1) The commission shall:
(a) facilitate the development and implementation of the strategies and programs necessary to protect, conserve, utilize, and develop the soil and water resources of the state;
(b) disseminate information regarding districts' activities and programs;
(c) supervise the formation, reorganization, or dissolution of districts according to the requirements of Title 17A, Chapter 3, Part 8, Conservation Districts;
(d) prescribe uniform accounting and recordkeeping procedures for districts and require each district to submit annually an audit of its funds to the commission;
(e) approve and make loans for agricultural purposes, from the Agriculture Resource Development Fund for:
(i) nonfederal rangeland improvement and management projects;
(ii) watershed protection and flood prevention projects;
(iii) agricultural cropland soil and water conservation projects; and
(iv) programs designed to promote energy efficient farming practices;
(f) administer federal or state funds in accordance with applicable federal or state guidelines and make loans or grants from those funds to land occupiers for the conservation of soil or water resources;
(g) seek to coordinate soil and water protection, conservation, and development activities and programs of state agencies, local governmental units, other states, special interest groups, and federal agencies; and
(h) plan watershed and flood control projects in cooperation with appropriate local, state, and federal authorities and coordinate flood control projects in the state.
(2) The commission may:
(a) employ, with the approval of the department, an administrator and necessary technical experts and employees;
(b) execute contracts or other instruments necessary to exercise its powers;
(c) sue and be sued; and
(d) adopt rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to carry out the powers and duties specified in Subsections (1)(d), (e), (f), and (2)(b).
Section 22. Section 4-18-6.5 is amended to read:
4-18-6.5
. Grants to improve manure management or control runoff at animal feeding operations.(1) (a) The commission may make grants to owners or operators of animal feeding operations to pay for costs of plans or projects to improve manure management or control surface water runoff, including costs of preparing or implementing comprehensive nutrient management plans.
(b) The commission shall make the grants described in Subsection (1)(a) from funds appropriated by the Legislature for that purpose.
(2) (a) In awarding grants, the commission shall consider the following criteria:
(i) the ability of the grantee to pay for costs of plans or projects to improve manure management or control surface water runoff;
(ii) the availability of:
(A) matching funds provided by the grantee or another source; or
(B) material, labor, or other items of value provided in lieu of money by the grantee or another source; and
(iii) the benefits that accrue to the general public by the awarding of a grant.
(b) The commission may establish by rule additional criteria for the awarding of grants.
(3) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this section.
Section 23. Section 4-20-1.5 is amended to read:
4-20-1.5
. State Grazing Advisory Board -- Duties.(1) (a) There is created within the department the State Grazing Advisory Board.
(b) The commissioner shall appoint the following members:
(i) one member from each regional board;
(ii) one member from the Conservation Commission created in Section 4-18-4;
(iii) one representative of the Department of Natural Resources;
(iv) two livestock producers at-large; and
(v) one representative of the oil, gas, or mining industry.
(2) The term of office for a state board member is four years.
(3) Members of the state board shall elect a chair, who shall serve for two years.
(4) (a) (i) A member who is not a government employee may not receive compensation or benefits for the member's service, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A member may decline to receive per diem and expenses for the member's service.
(b) (i) A state government officer and employee member who does not receive salary, per diem, or expenses from the agency the member represents for the member's service may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A state government officer and employee member may decline to receive per diem and expenses for the member's service.
(c) (i) A local government member who does not receive salary, per diem, or expenses from the entity that the member represents for the member's service may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A local government member may decline to receive per diem and expenses for the member's service.
(5) The state board shall:
(a) receive:
(i) advice and recommendations from a regional board concerning:
(A) management plans for public lands, state lands, and school and institutional trust lands as defined in Section 53C-1-103, within the regional board's region; and
(B) any issue that impacts grazing on private lands, public lands, state lands, or school and institutional trust lands as defined in Section 53C-1-103, in its region; and
(ii) requests for fund monies from the entities described in Subsections (5)(c)(i) through (iv);
(b) recommend state policy positions and cooperative agency participation in federal and state land management plans to the department and to the Public Lands Policy Coordinating Office created under Section [63-38d-602] 63J-4-602; and
(c) advise the department on the requests and recommendations of:
(i) regional boards;
(ii) county weed control boards created under Section 4-17-4;
(iii) cooperative weed management associations; and
(iv) conservation districts created under the authority of Title 17A, Chapter 3, Part 8, Conservation Districts.
Section 24. Section 4-22-4.5 is amended to read:
4-22-4.5
. Exemption from certain operational requirements.The commission is exempt from:
(1) Title 51, Chapter 5, Funds Consolidation Act;
(2) Title 51, Chapter 7, State Money Management Act;
(3) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(4) Title 63A, Utah Administrative Services Code; and
(5) Title 67, Chapter 19, Utah State Personnel Management Act.
Section 25. Section 4-23-5 is amended to read:
4-23-5
. Board responsibilities -- Damage prevention policy -- Rules -- Methods to control predators and depredating birds and animals.(1) The board is responsible for the formulation of the agricultural and wildlife damage prevention policy of the state and in conjunction with its responsibility may, consistent with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, adopt rules to implement its policy which shall be administered by the department.
(2) In its policy deliberations the board shall:
(a) specify programs designed to prevent damage to livestock, poultry, and agricultural crops;
(b) specify methods for the prevention of damage and for the selective control of predators and depredating birds and animals including, but not limited to, hunting, trapping, chemical toxicants, and the use of aircraft.
(3) The board may also:
(a) specify bounties on designated predatory animals and recommend procedures for the payment of bounty claims, recommend bounty districts, recommend persons not authorized to receive bounty, and recommend to the department other actions it deems advisable for the enforcement of its policies; and
(b) cooperate with federal, state, and local governments, educational institutions, and private persons or organizations, through agreement or otherwise, to effectuate its policies.
Section 26. Section 4-24-3 is amended to read:
4-24-3
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 27. Section 4-25-3 is amended to read:
4-25-3
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 28. Section 4-29-1 is amended to read:
4-29-1
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as it considers necessary for the administration and enforcement of this chapter.
Section 29. Section 4-30-3 is amended to read:
4-30-3
. Department authorized to make and enforce rules.The department is authorized, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make and enforce such rules as in its judgment are necessary to administer and enforce this chapter.
Section 30. Section 4-31-16.5 is amended to read:
4-31-16.5
. Brucellosis -- Vaccination required for certain cattle -- Testing required to import certain cattle.(1) As used in this section, "test-eligible" has the meaning defined in 9 C.F.R. Sec. 78.1.
(2) (a) Instate origin replacement cattle that are kept for breeding stock must be official calfhood vaccinated for brucellosis.
(b) Female cattle from within the state that are not kept for breeding stock will not be required to be vaccinated.
(c) For purposes of this Subsection (2), the department may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing non-legible brucellosis tattoos and may accept brucellosis vaccination record forms as evidence that brucellosis vaccinations were performed.
(3) All female beef-breed cattle imported into the state are required to be official calfhood vaccinated for brucellosis except female cattle:
(a) less than four months of age;
(b) going directly to slaughter;
(c) going to a qualified feedlot; or
(d) going to an approved auction to be vaccinated on arrival or designated for slaughter only.
(4) (a) Test-eligible cattle imported from states designated as brucellosis-free under 9 C.F.R. Sec. 78.43, that are acquired directly from the farm of origin are not required to be tested for brucellosis before movement into the state.
(b) Test-eligible cattle imported from states designated as brucellosis-free under 9 C.F.R. Sec. 78.43, that are acquired through trading channels must test negative for brucellosis within 30 days before movement into the state.
(5) Test-eligible cattle imported from states that have not been designated as brucellosis-free under 9 C.F.R. Sec. 78.43, must test negative for brucellosis within 30 days before movement into the state.
(6) The department may investigate situations where fees for brucellosis vaccinations are considered to be excessive.
(7) The department may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for beef-breed cattle that are acquired for specialized breeding purposes, and may exempt those cattle from brucellosis vaccination requirements.
(8) The department shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this section.
Section 31. Section 4-31-21 is amended to read:
4-31-21
. Trichomoniasis -- Department to make rules.The department shall make rules for the prevention and control of trichomoniasis in cattle and bison in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 32. Section 4-32-7 is amended to read:
4-32-7
. Mandatory functions, powers, and duties of department prescribed.The department shall make rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding the following functions, powers, and duties, in addition to those specified in Title 4, Chapter 1, Utah Agricultural Code, for the administration and enforcement of this chapter:
(1) The department shall require antemortem and postmortem inspections, quarantine, segregation, and reinspections by inspectors appointed for those purposes with respect to the slaughter of livestock and poultry and the preparation of livestock and poultry products at official establishments, except as provided in Subsection 4-32-8(13).
(2) The department shall require that:
(a) livestock and poultry be identified for inspection purposes;
(b) livestock or poultry products, or their containers be marked or labeled as:
(i) "Utah Inspected and Passed" if, upon inspection, the products are found to be unadulterated; and
(ii) "Utah Inspected and Condemned" if, upon inspection, the products are found to be adulterated; and
(c) condemned products, which otherwise would be used for human consumption, be destroyed under the supervision of an inspector.
(3) The department shall prohibit or limit livestock products, poultry products, or other materials not prepared under inspection procedures provided in this chapter, from being brought into official establishments.
(4) The department shall require that labels and containers for livestock and poultry products:
(a) bear all information required under Section 4-32-3 if the product leaves the official establishment; and
(b) be approved prior to sale or transportation.
(5) For official establishments required to be inspected under Subsection (1), the department shall:
(a) prescribe sanitary standards;
(b) require experts in sanitation or other competent investigators to investigate sanitary conditions; and
(c) refuse to provide inspection service if the sanitary conditions allow adulteration of any livestock or poultry product.
(6) (a) The department shall require that any person engaged in a business referred to in Subsection (b) shall:
(i) keep accurate records disclosing all pertinent business transactions;
(ii) allow inspection of the business premises at reasonable times and examination of inventory, records, and facilities; and
(iii) allow inventory samples to be taken after payment of their fair market value.
(b) Subsection (a) shall refer to any person who:
(i) slaughters livestock or poultry;
(ii) prepares, freezes, packages, labels, buys, sells, transports, or stores any livestock or poultry products for human or animal consumption;
(iii) renders livestock or poultry; or
(iv) buys, sells, or transports any dead, dying, disabled, or diseased livestock or poultry, or parts of their carcasses that died by a method other than slaughter.
(7) (a) The department shall:
(i) adopt by reference rules and regulations under federal acts with changes that the commissioner considers appropriate to make the rules and regulations applicable to operations and transactions subject to this chapter; and
(ii) promulgate any other rules considered necessary for the efficient execution of the provisions of this chapter, including rules of practice providing an opportunity for hearing in connection with the issuance of orders under Subsection (5) or under Subsection 4-32-8(1), (2), or (3) and prescribing procedures for proceedings in these cases.
(b) These procedures shall not preclude requiring that a label or container be withheld from use, or inspection be refused under Subsections (1) and (5), or Subsection 4-32-8(3), pending issuance of a final order in the proceeding.
(8) (a) To prevent the inhumane slaughtering of livestock and poultry, inspectors shall be appointed to examine and inspect methods of handling and slaughtering livestock and poultry.
(b) Inspection of new slaughtering establishments may be refused or temporarily suspended if livestock or poultry have been slaughtered or handled by any method not in accordance with the Humane Methods of Slaughter Act of 1978, Public Law 95-445.
(9) (a) The department shall require all livestock and poultry showing symptoms of disease during antemortem inspection, performed by an inspector appointed for that purpose, to be set apart and slaughtered separately from other livestock and poultry.
(b) When slaughtered, the carcasses of livestock and poultry shall be subject to careful examination and inspection in accordance with rules prescribed by the commissioner.
Section 33. Section 4-33-4 is amended to read:
4-33-4
. Administrative and enforcement powers of department.The department shall administer and enforce this chapter and may:
(1) make and enforce such rules, subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as it considers necessary for the effective administration and enforcement of this chapter;
(2) acquire and test motor fuel samples to determine compliance with this chapter;
(3) maintain and staff a laboratory to test motor fuel samples;
(4) enter public or private premises during normal working hours to enforce this chapter;
(5) stop and detain any commercial vehicle transporting motor fuel to inspect its contents and applicable documents or to acquire motor fuel samples;
(6) require that records applicable to this chapter be available for examination and review upon request by the department.
Section 34. Section 4-37-109 is amended to read:
4-37-109
. Department to make rules.(1) The department shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) specifying procedures for the application and renewal of certificates of registration for operating an aquaculture or fee fishing facility; and
(b) governing the disposal or removal of aquatic animals from an aquaculture or fee fishing facility for which the certificate of registration has lapsed or been revoked.
(2) (a) The department may make other rules consistent with its responsibilities set forth in Section 4-37-104.
(b) Except as provided by this chapter, the rules authorized by Subsection (2)(a) must be consistent with the suggested procedures for the detection and identification of pathogens published by the American Fisheries Society's Fish Health Section.
Section 35. Section 4-37-201 is amended to read:
4-37-201
. Certificate of registration required to operate an aquaculture facility.(1) A person may not operate an aquaculture facility without first obtaining a certificate of registration from the department.
(2) (a) Each application for a certificate of registration to operate an aquaculture facility shall be accompanied by a fee.
(b) The fee shall be established by the department in accordance with Section [63-38-3.2] 63J-1-303.
(3) The department shall coordinate with the Division of Wildlife Resources:
(a) on the suitability of the proposed site relative to potential impacts on adjacent aquatic wildlife populations; and
(b) in determining which species the holder of the certificate of registration may propagate, possess, transport, or sell.
(4) The department shall list on the certificate of registration the species which the holder may propagate, possess, transport, or sell.
Section 36. Section 4-37-301 is amended to read:
4-37-301
. Certificate of registration required to operate a fee fishing facility.(1) A person may not operate a fee fishing facility without first obtaining a certificate of registration from the department.
(2) (a) Each application for a certificate of registration to operate a fee fishing facility shall be accompanied by a fee.
(b) The fee shall be established by the department in accordance with Section [63-38-3.2] 63J-1-303.
(3) The department shall coordinate with the Division of Wildlife Resources:
(a) on the suitability of the proposed site relative to potential impacts on adjacent aquatic wildlife populations; and
(b) in determining which species the holder of the certificate of registration may possess or transport to or stock into the facility.
(4) The department shall list on the certificate of registration the species which the holder may possess or transport to or stock into the facility.
(5) A person holding a certificate of registration for an aquaculture facility may also operate a fee fishing facility without obtaining an additional certificate of registration, if the fee fishing facility:
(a) is in a body of water meeting the criteria of Section 4-37-111 which is connected with the aquaculture facility;
(b) contains only those aquatic animals specified on the certificate of registration for the aquaculture facility; and
(c) is designated on the certificate of registration for the aquaculture facility.
Section 37. Section 4-37-602 is amended to read:
4-37-602
. Adjudicative proceedings -- Presiding officer.(1) Adjudicative proceedings under this chapter shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) The revocation of an aquaculture facility's certificate of registration, the denial of an aquaculture facility's future certificate of registration, and a denial or cancellation of an aquaculture facility's health approval number is a state agency action governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) (a) An owner or operator of an aquaculture facility may ask for an agency review, as provided by Section [63-46b-12] 63G-4-301, of an agency action specified in Subsection (2).
(b) The presiding officer, as defined in Section [63-46b-2] 63G-4-103, conducting the agency review shall consist of three members as follows:
(i) the person representing sport fishermen, appointed under Subsection 4-37-503(4)(a)(i)(C);
(ii) one person representing the aquaculture industry, appointed by the governor from names submitted by a nonprofit corporation, as defined in Section 16-6a-102, that promotes the efficient production, distribution, and marketing of aquaculture products and the welfare of all persons engaged in aquaculture; and
(iii) one person, appointed by the governor, who is knowledgeable about aquatic diseases and is employed by an institution of higher education.
(c) If the governor rejects all the names submitted under Subsection (3)(b)(ii), the recommending nonprofit corporation shall submit additional names.
(d) The final decision of the presiding officer shall be adopted upon approval of at least two of the members.
(e) The term and compensation for the member listed in Subsection (3)(b)(i) shall be the same as provided in Section 4-37-503.
(f) The term for the members appointed under Subsections (3)(b)(ii) and (iii) shall be four years.
(g) (i) (A) A higher education member who does not receive salary, per diem, or expenses from the entity that the member represents for the member's service may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(B) A higher education member may decline to receive per diem and expenses for the member's service.
(ii) (A) A member who is not a government employee may not receive compensation or benefits for the member's service, but may receive per diem and expenses incurred in performance of the member's official duties at rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(B) A member may decline to receive per diem and expenses for the member's service.
Section 38. Section 4-38-4 is amended to read:
4-38-4
. Powers and duties of commission.(1) The commission shall:
(a) license, regulate, and supervise all persons involved in the racing of horses as provided in this chapter;
(b) license, regulate, and supervise all recognized race meets held in this state under the terms of this chapter;
(c) cause the various places where recognized race meets are held to be visited and inspected at least once a year;
(d) assist in procuring public liability insurance coverage from a private insurance company for those licensees unable to otherwise obtain the insurance required under this chapter;
(e) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to govern race meets, including rules:
(i) to resolve scheduling conflicts and settle disputes among licensees;
(ii) to supervise, discipline, suspend, fine, and bar from events all persons required to be licensed by this chapter; and
(iii) to hold, conduct, and operate all recognized race meets conducted pursuant to this chapter;
(f) determine which persons participating, directly or indirectly, in recognized race meets require licenses;
(g) announce the time, place, and duration of recognized race meets for which licenses shall be required; and
(h) establish reasonable fees for all licenses provided for under this chapter.
(2) The commission may:
(a) grant, suspend, or revoke licenses issued under this chapter;
(b) impose fines as provided in this chapter;
(c) access criminal history record information for all licensees and commission employees; and
(d) exclude from any racetrack facility in this state any person who the commission considers detrimental to the best interests of racing or any person who violates any provisions of this chapter or any rule or order of the commission.
Section 39. Section 4-38-6 is amended to read:
4-38-6
. Public records.All records of the commission shall be subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 40. Section 4-38-14 is amended to read:
4-38-14
. Hearings.(1) Except as otherwise provided in this section, all proceedings before the commission or its hearing officer with respect to the denial, suspension, or revocation of licenses or the imposition of fines shall be conducted pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) These proceedings shall be held in the county where the commission has its office or in any other place the commission designates. The commission shall notify the applicant or licensee by mailing, by first class mail, a copy of the written notice required to the last address furnished by the application or licensee to the commission at least seven days in advance of the hearing.
(3) The commission may delegate its authority to conduct hearings with respect to the denial or suspension of licenses or the imposition of a fine to a hearing officer.
(4) Proceedings before the board of stewards need not be governed by the procedural or other requirements of the Administrative Procedures Act, but rather shall be conducted in accordance with rules adopted by the commission.
(5) The commission and the board of stewards may administer oaths and affirmations, sign and issue subpoenas, order the production of documents and other evidence, and regulate the course of the hearing pursuant to rules adopted by it.
(6) Any person aggrieved by a final order or ruling issued by a board of stewards may appeal the order or ruling to the commission pursuant to procedural rules adopted by the commission. The aggrieved party may petition the commission for a stay of execution pending appeal to the commission.
Section 41. Section 4-39-106 is amended to read:
4-39-106
. Department to make rules.(1) The department shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, after considering the recommendations of the advisory council:
(a) specifying procedures for the application and renewal of licenses for operating a domesticated elk facility;
(b) governing the disposal or removal of domesticated elk from a domesticated elk facility for which the license has lapsed or been revoked;
(c) setting standards and requirements for operating a domesticated elk facility;
(d) setting health requirements and standards for health inspections; and
(e) governing the possession, transportation, and accompanying documentation of domesticated elk carcasses.
(2) The department may make other rules consistent with its responsibilities set forth in Section 4-39-103.
Section 42. Section 4-39-203 is amended to read:
4-39-203
. License required to operate a domesticated elk facility.(1) A person may not operate a domesticated elk facility without first obtaining a license from the department.
(2) (a) Each application for a license to operate a domesticated elk facility shall be accompanied by a fee.
(b) The fee shall be established by the department in accordance with Section [63-38-3.2] 63J-1-303.
(3) Each applicant for a domesticated elk facility license shall submit an application providing all information in the form and manner as required by the department.
(4) (a) No license shall be issued until the department has inspected and approved the facility.
(b) The department shall:
(i) notify the Division of Wildlife Resources at least 48 hours prior to a scheduled inspection so that a Division of Wildlife Resources representative may be present at the inspection; and
(ii) provide the Division of Wildlife Resources with copies of all licensing and inspection reports.
(5) Each separate location of the domesticated elk operation shall be licensed separately.
(6) (a) If a domesticated elk facility is operated under more than one business name from a single location, the name of each operation shall be listed with the department in the form and manner required by the department.
(b) The department shall require that a separate fee be paid for each business name listed.
(c) If a domesticated elk facility operates under more than one business name from a single location, the facility shall maintain separate records.
(7) Each person or business entity with an equity interest in the domesticated elk shall be listed on the application for license.
(8) Each domesticated elk facility license shall expire on July 1 in the year following the year of issuance.
(9) Each licensee shall report to the department, in the form and manner required by the department, any change in the information provided in the licensee's application or in the reports previously submitted, within 15 days of each change.
(10) Licenses issued pursuant to this section are not transferable.
Section 43. Section 4-39-502 is amended to read:
4-39-502
. Adjudicative proceedings.Adjudicative proceedings under this chapter shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 44. Section 7-1-105 is amended to read:
7-1-105
. Procedures -- Adjudicative proceedings.The commissioner and the department shall, except to the extent exempted, comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 45. Section 7-1-301 is amended to read:
7-1-301
. Powers and duties of commissioner -- Rulemaking.Without limiting the other powers, duties, and responsibilities specified in this title, the commissioner has all the functions, powers, duties, and responsibilities with respect to institutions, persons, or businesses subject to the jurisdiction of the department contained in this title, including all of the functions, powers, duties, and responsibilities described in Subsections (1) through (15).
(1) The commissioner may govern the administration and operation of the department.
(2) The commissioner may supervise the conduct, operation, management, examination, and statements and reports of examinations of financial institutions and other persons subject to the jurisdiction of the department.
(3) (a) The commissioner may authorize a state chartered depository institution to engage in any activity it could engage in, and to grant to that institution all additional rights, powers, privileges, benefits, or immunities it would possess, if it were chartered under the laws of the United States.
(b) The commissioner may authorize a depository institution chartered by this state to engage in any activity that a Utah branch of an out-of-state depository institution of the same class can engage in, and to grant to the Utah institution all additional rights, powers, privileges, benefits, or immunities it needs to engage in the activity.
(c) In granting authority under this Subsection (3), the commissioner shall consider:
(i) the need for competitive equality between institutions chartered by this state and institutions operating in this state that are chartered by another state or by the federal government; and
(ii) the adverse effect on shareholders, members, depositors, and other customers of financial institutions chartered by this state if equal power and protection of those institutions, compared with federally chartered or out-of-state institutions of the same class, are not promptly available.
(4) The commissioner may safeguard the interest of shareholders, members, depositors, and other customers of institutions and other persons subject to the jurisdiction of the department.
(5) (a) The commissioner may establish criteria consistent with this title to be applied in granting applications for approval of:
(i) a new institution;
(ii) a new branch;
(iii) the relocation of an office or branch;
(iv) a merger;
(v) a consolidation;
(vi) a change in control of an institution or other person subject to the jurisdiction of the department; and
(vii) other applications specified in this title.
(b) The criteria established under Subsection (5)(a) may not be applied to make it more difficult for a state chartered institution to obtain approval of an application than for a federally chartered institution in the same class to obtain approval from the appropriate federal regulatory agency or administrator.
(6) (a) The commissioner may protect the privacy of the records of any institution subject to the jurisdiction of the department pertaining to a particular depositor or other customer of the institution. Rules adopted under this Subsection (6) shall be consistent with federal laws and regulations applicable to the institution.
(b) Any institution that consents to produce records or that is required to produce records in compliance with a subpoena or other order of a court of competent jurisdiction or in compliance with an order obtained pursuant to Sections 78-27-45 through 78-27-50.5 shall be reimbursed for the cost of retrieval and reproduction of the records by the party seeking the information. The commissioner may by rule establish the rates and conditions under which reimbursement is made.
(7) (a) The commissioner may classify all records kept by institutions subject to the jurisdiction of the department and to prescribe the period for which each class of records is retained.
(b) Rules adopted under this Subsection (7) for any class of financial institution shall be consistent with federal laws and regulations applicable to the class.
(c) Rules made under this Subsection (7) shall provide that:
(i) An institution may dispose of any record after retaining it for the period prescribed by the commissioner for retention of records of its class. If an institution disposes of a record after the prescribed period, the institution has no duty to produce it in any action or proceeding and is not liable to any person by reason of that disposition.
(ii) Any institution may keep records in its custody in the form of microfilm or equivalent reproduction. Any such reproduction shall have the same force and effect as the original and shall be admissible into evidence as if it were the original.
(d) In adopting rules under this Subsection (7), the commissioner shall take into consideration:
(i) actions at law and administrative proceedings in which the production of the records might be necessary or desirable;
(ii) state and federal statutes of limitation applicable to the actions or proceedings;
(iii) the availability from other sources of information contained in these records; and
(iv) other matters the commissioner considers pertinent in formulating rules that require institutions to retain their records for as short a period as commensurate with the interest in having the records available of:
(A) customers, members, depositors, and shareholders of the institutions; and
(B) the people of this state.
(8) (a) The commissioner may establish reasonable classes of depository and other financial institutions including separate classes for:
(i) savings and loan associations and related institutions;
(ii) banks and related institutions;
(iii) credit unions; and
(iv) industrial banks.
(b) If the restrictions or requirements the commissioner imposes are not more stringent than those applicable under federal law or regulation to federally chartered institutions of the same class, the commissioner may establish the following for each class in a manner consistent with this title:
(i) eligible classes and types of investments for the deposits and other funds of those financial institutions;
(ii) minimum standards, in amounts sufficient to protect depositors and other creditors, for the amount and types of capital required to engage in the business conducted by each class or to obtain a license or to establish a branch or additional office of an institution of each class;
(iii) eligible obligations, reserves, and other accounts to be included in the computation of capital;
(iv) minimum liquidity requirements for financial institutions within each class in amounts sufficient to meet the demands of depositors and other creditors for liquid funds;
(v) limitations on the amount and type of borrowings by each class of financial institution in relation to the amount of its capital and the character and condition of its assets and its deposits and other liabilities;
(vi) limitations on the amount and nature of loans and extensions of credit to any person or related persons by each class of financial institution in relation to the amount of its capital; and
(vii) limitations on the amount and nature of loans and extensions of credit by a financial institution or other person within each class to an executive officer, director, or principal shareholder of:
(A) the institution or other person;
(B) any company of which the institution or other person is a subsidiary;
(C) any subsidiary of the institution or other person;
(D) any affiliate of the institution; and
(E) a company controlled by an executive officer, director, or principal shareholder of the institution.
(9) The commissioner may define unfair trade practices of financial institutions and other persons subject to the jurisdiction of the department and to prohibit or restrict these practices.
(10) The commissioner may establish reasonable standards to promote the fair and truthful advertising of:
(a) services offered by a financial institution;
(b) the charges for the services advertised under Subsection (10)(a);
(c) the interest or other compensation to be paid on deposits or any debt instrument offered for sale by the institution;
(d) the nature and extent of any:
(i) insurance on deposits;
(ii) savings accounts;
(iii) share accounts;
(iv) certificates of deposit;
(v) time deposit accounts;
(vi) NOW accounts;
(vii) share draft accounts;
(viii) transaction accounts; or
(ix) any evidence of indebtedness issued, offered for sale, offered to sell or sold by any financial institution or other person subject to the jurisdiction of the department; and
(e) the safety or financial soundness of any financial institution or other person subject to the jurisdiction of the department.
(11) The commissioner may define what constitutes an impairment of capital for each class of financial institution or other person subject to the jurisdiction of the department.
(12) The commissioner may designate days on which depository institutions are closed in accordance with Section 7-1-808.
(13) The commissioner may regulate the issuance, advertising, offer for sale, and sale of a security to the extent authorized by Section 7-1-503.
(14) The commissioner may require the officers of any institution or other person subject to the commissioner's jurisdiction to open and keep a standard set of books, computer records, or both for the purpose of keeping accurate and convenient records of the transactions and accounts of the institution in a manner to enable the commissioner, supervisors, and department examiners to readily ascertain the institution's true condition. These requirements shall be consistent with generally accepted accounting principles for financial institutions.
(15) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may adopt and issue rules consistent with the purposes and provisions of this title, and may revise, amend, or repeal the rules adopted.
Section 46. Section 7-1-323 is amended to read:
7-1-323
. Regulation of interstate operations -- Coordination of efforts.(1) The commissioner may:
(a) examine, supervise, and regulate a branch operated in this state by a depository institution chartered by another state and take any action or issue any order with regard to that branch;
(b) examine, supervise, and regulate a branch operated in another state by a depository institution chartered by this state and take any action or issue any order with regard to that branch; and
(c) coordinate these activities with any other state or federal agency that shares jurisdiction over the institution.
(2) The commissioner may coordinate the examination, supervision, and regulation of any depository institution chartered by this state with the examination, supervision, and regulation of an affiliated depository institution operating in another state.
(3) The commissioner may take any reasonable and lawful action in furtherance of coordinating the regulation of interstate operations, including:
(a) negotiating and entering into cooperative agreements with an agency of another state or of the federal government;
(b) sharing information and reports in accordance with Section 7-1-802 with an agency that shares jurisdiction over the institution;
(c) accepting as sufficient, if appropriate, examination reports and other information compiled or generated by or for an agency that shares jurisdiction over the institution;
(d) contracting with an agency that shares jurisdiction over the institution to engage the services of its examiners at a reasonable rate of compensation;
(e) offering the services of the department's examiners at a reasonable rate of compensation to an agency that shares jurisdiction over the institution;
(f) collecting fees on behalf of, or receiving payment of fees through, an agency that shares jurisdiction over the institution; and
(g) cooperating in any other way with other supervisory agencies and professional associations to promote the efficient, safe, and sound operation and regulation of interstate depository institution activities, including the formulation of interstate examination policies and procedures and the drafting of model laws, rules, and agreements.
(4) A contract between the department and an agency that shares jurisdiction over a depository institution to provide examiners to aid in interstate examination and regulation is considered a sole source contract under Section [63-56-410] 63G-6-410.
Section 47. Section 7-1-324 is amended to read:
7-1-324
. Debt cancellation agreements and debt suspension agreements.(1) As used in this section:
(a) "Class of depository institution" means a class consisting of:
(i) banks;
(ii) credit unions;
(iii) industrial banks;
(iv) savings and loan associations; or
(v) wholly owned subsidiaries of a depository institution listed in this Subsection (1)(a).
(b) "Debt cancellation agreement" is as defined in Section 31A-21-109.
(c) "Debt suspension agreement" is as defined in Section 31A-21-109.
(2) Subject to the other provisions of this section, the commissioner may by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) authorize any member of a class of depository institution that is subject to the jurisdiction of the department to issue:
(i) a debt cancellation agreement; or
(ii) a debt suspension agreement; and
(b) regulate the issuance of a debt cancellation agreement or a debt suspension agreement issued in this state by a member of a class of depository institution.
(3) (a) Any rule adopted by the commissioner under this section as applied to a class of depository institution shall be substantially similar to any federal regulation applying to the same class of depository institution.
(b) Any rule adopted by the commissioner applicable to a class of depository institution described in this Subsection (3)(b) shall be substantially similar to any federal regulation applicable to a bank if no federal regulation authorizes or regulates the issuance of a debt cancellation agreement or debt suspension agreement for that class of depository institution.
(4) (a) An out-of-state depository institution may issue a debt cancellation agreement or debt suspension agreement in this state if:
(i) the home state of the out-of-state depository institution authorizes and regulates the issuance of a debt cancellation agreement or debt suspension agreement by the out-of-state depository institution; and
(ii) subject to Subsection (4)(b), the out-of-state depository institution complies with regulations from the out-of-state depository institution's home state that regulate the issuance of a debt cancellation agreement or a debt suspension agreement.
(b) Notwithstanding Subsection (4)(a), an out-of-state depository institution described in Subsection (4)(a) shall comply with rules adopted by the commissioner under this section that regulate the issuance of a debt cancellation agreement or a debt suspension agreement in this state by the class of depository institution to which the out-of-state depository institution belongs if the regulations of the out-of-state depository institution's home state do not provide at least the same level of protection with respect to a debt cancellation agreement or debt suspension agreement as the rules adopted by the commissioner under this section with respect to the same class of depository institution:
(i) for the safety and soundness of the depository institution; and
(ii) for consumer protections for the borrowers of the depository institution.
Section 48. Section 7-1-325 is amended to read:
7-1-325
. Compliance with applicable federal law.(1) As used in this section, "federal law" means:
(a) a statute passed by the Congress of the United States; or
(b) a final regulation:
(i) adopted by an administrative agency of the United States government; and
(ii) published in the code of federal regulations or the federal register.
(2) (a) An institution subject to the jurisdiction of the department violates this title if the institution violates a federal law:
(i) that is applicable to the institution; and
(ii) pursuant to the terms of the federal law in effect on the day the institution violates the federal law.
(b) The department shall by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and consistent with this title, designate which one or more federal laws are applicable to an institution subject to the jurisdiction of the department.
(3) Except for criminal penalties, the department may enforce a violation described in Subsection (2) by taking any action:
(a) permitted by:
(i) this part;
(ii) Chapter 2, Possession of Depository Institution by Commissioner;
(iii) Chapter 19, Acquisition of Failing Depository Institutions or Holding Companies;
(iv) in the case of a check casher, Chapter 23, Check Cashing Registration Act; or
(v) in the case of a title lender, Chapter 24, Title Lending Registration Act; and
(b) including bringing an action permitted under this title in state court.
Section 49. Section 7-1-704 is amended to read:
7-1-704
. Authorization required to engage in business -- Exemptions -- Procedure.(1) (a) An institution subject to the jurisdiction of the department may maintain an office in this state or engage in the activities of a financial institution in this state only if it is authorized to do so by the department.
(b) This subsection does not apply to:
(i) any person who is lawfully engaging in the activities of a financial institution in this state on July 1, 1981, unless the institution was not subject to the jurisdiction of the department before that date;
(ii) an application to establish a branch or additional office; or
(iii) the establishment of a service corporation or service organization.
(2) An applicant for authorization to become an institution subject to the jurisdiction of the department shall pay to the department the appropriate filing fee, as provided in Section 7-1-401, and shall file with the commissioner:
(a) its undertaking to pay all expenses incurred in conducting any administrative proceedings forming part of the department's consideration of the application;
(b) its proposed articles of incorporation and by-laws;
(c) an application in a form prescribed by the commissioner that includes all information the commissioner requires about the source of the proposed original capital and about the identity, personal history, business background and experience, financial condition, and participation in any litigation or administrative proceeding of the organizers, the proposed members of the board of directors, and the principal officers; and
(d) any other information the commissioner requires.
(3) In addition to the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commissioner shall, at the expense of the applicant:
(a) give notice of the application by publication in three successive issues of a newspaper of general circulation in the county where the principal place of business is to be established;
(b) give notice of the application to other institutions subject to the jurisdiction of the department in a manner and to an extent the commissioner considers appropriate;
(c) cause the appropriate supervisor to make a careful investigation and examination of the following:
(i) the character, reputation, and financial standing and ability of the organizers;
(ii) the character, financial responsibility, experience, and business qualifications of those proposed as officers;
(iii) the character and standing in the community of those proposed as directors, principal stockholders, or owners;
(iv) the need in the service area where the institution would be located, giving particular consideration to the adequacy of existing financial facilities and the effect the proposed institution would have on existing institutions in the area;
(v) the ability of the proposed service area to support the proposed institution, including the extent and nature of existing competition, the economic history and future prospects of the community, and the opportunity for profitable employment of financial institution funds; and
(vi) other facts and circumstances bearing on the proposed institution that the supervisor considers relevant.
(4) (a) The supervisor shall submit findings and recommendations in writing to the commissioner.
(b) The application, any additional information furnished by the applicant, and the findings and recommendations of the supervisor may be inspected by any person at the department's office, except those portions of the application or report the commissioner declares to be confidential, pursuant to the applicant's request, in order to prevent a clearly unwarranted invasion of privacy.
(5) (a) If a hearing is held, the applicant shall publish notice of the hearing at the applicant's expense in a newspaper of general circulation within the county where the proposed institution is to be located at least once a week for three successive weeks before the date of hearing.
(b) The notice shall include the date, time, and place of the hearing and any other information required by the commissioner.
(c) The commissioner shall act on the record before him within 30 days after receipt of the transcript of the hearing.
(6) If no hearing is held, the commissioner may, within 90 days of acceptance of the application as complete, approve or disapprove the application based on the papers filed with him, together with the supervisor's findings and recommendations.
(7) (a) The commissioner may not approve the application unless he finds that the applicant has established by the preponderance of the evidence that:
(i) in light of the need for financial services in the area, the adequacy of existing facilities, and the effect the proposed institution would have on existing institutions in the area, the public need and convenience will be promoted by the establishment of the proposed institution;
(ii) in light of the ability of the proposed service area to support the proposed institution, including the extent and nature of existing competition, the economic history and future prospects of the community, and the opportunity for profitable employment of financial institution funds, conditions in the service area in which the proposed institution would transact business afford reasonable promise of a successful operation;
(iii) the institution is being formed only for legitimate purposes allowed by the laws of this state;
(iv) the proposed capital equals or exceeds the required minimum and is adequate in light of current and prospective conditions;
(v) if the applicant is seeking authority to accept deposits, the deposits will be insured or guaranteed by an agency of the federal government;
(vi) the proposed officers and directors have sufficient experience, ability, and standing to afford reasonable promise of a successful operation;
(vii) the name of the proposed financial institution does not resemble the name of any other institution transacting business in this state so closely as to cause confusion;
(viii) the applicants have complied with all of the provisions of law; and
(ix) no properly managed and soundly operated existing institutions offering substantially similar services in the service area to which the application relates will be unduly injured by approval of the application.
(b) The commissioner may condition approval of the application on the institution's acceptance of requirements or conditions with respect to insurance that the commissioner considers necessary to protect depositors.
(8) (a) The commissioner shall provide written findings and conclusions on the application.
(b) Upon approving an application, the commissioner shall:
(i) endorse the approval on the articles of incorporation;
(ii) file one copy with the Division of Corporations and Commercial Code;
(iii) retain one file copy; and
(iv) return one copy to the applicant within ten days after the date of his decision approving the application.
(c) Upon disapproving an application, the commissioner shall mail notice of the disapproval to the applicant within ten days.
(d) The commissioner may approve an application subject to conditions he considers appropriate to protect the public interest and carry out the purposes of this title.
(e) The commissioner shall give written notice of the decision to all persons who have filed a protest to the application.
(9) Upon approval of an application for authorization to conduct a business subject to the jurisdiction of the department, the commissioner shall issue a license, permit, or other appropriate certificate of authority if:
(a) except in the case of credit unions, all of the capital of the institution being formed has been paid in; and
(b) all the conditions and other requirements for approval of the application have been met.
(10) (a) Any approval by the commissioner of an application under this section is considered revoked unless the business is open and operating within one year from the date of the approval.
(b) The commissioner, on written application made before the expiration of that period, and for good cause shown, may extend the date for activation for additional periods not to exceed six months each.
(11) No person may obtain, for the purpose of resale, a certificate of approval to operate any institution under the jurisdiction of the department.
(12) The commissioner may approve an application without any notice to other financial institutions to respond to an emergency arising from the insolvency of an existing institution or to prevent the failure of an existing institution if the commissioner makes the findings required by Subsection (7).
Section 50. Section 7-1-810 is amended to read:
7-1-810
. Limited liability companies.(1) Notwithstanding any other provision of this title and subject to Subsection (8), if the conditions of this section are met, the following may be organized as or convert to a limited liability company under Title 48, Chapter 2c, Utah Revised Limited Liability Company Act:
(a) an industrial bank chartered under Chapter 8, Industrial Banks;
(b) an industrial loan company as defined in Section 7-8-21; or
(c) any of the following if the institution is an S Corporation, as defined in Section 1361, Internal Revenue Code, immediately before becoming a limited liability company:
(i) a bank chartered under Chapter 3, Banks;
(ii) a savings and loan association chartered under Chapter 7, Savings and Loan Associations Act; or
(iii) a depository institution holding company.
(2) (a) Before an institution described in Subsection (1) may organize as or convert to a limited liability company, the institution shall obtain approval of the commissioner.
(b) (i) To obtain the approval under this section from the commissioner, the institution shall file a request for approval with the commissioner at least 30 days before the day on which the institution becomes a limited liability company.
(ii) If the commissioner does not disapprove the request for approval within 30 days from the day on which the commissioner receives the request, the request is considered approved.
(iii) When taking action on a request for approval filed under this section, the commissioner may:
(A) approve the request;
(B) approve the request subject to terms and conditions the commissioner considers necessary; or
(C) disapprove the request.
(3) To approve a request for approval, the commissioner shall find:
(a) for an institution described in Subsection (1) that is required to be insured by a federal deposit insurance agency, that the institution:
(i) will operate in a safe and sound manner;
(ii) has the following characteristics:
(A) the institution is not subject to automatic termination, dissolution, or suspension upon the happening of some event other than the passage of time;
(B) the exclusive authority to manage the institution is vested in a board of managers or directors that:
(I) is elected or appointed by the owners;
(II) is not required to have owners of the institution included on the board;
(III) possesses adequate independence and authority to supervise the operation of the institution; and
(IV) operates with substantially the same rights, powers, privileges, duties, and responsibilities as the board of directors of a corporation;
(C) neither state law, nor the institution's operating agreement, bylaws, or other organizational documents provide that an owner of the institution is liable for the debts, liabilities, and obligations of the institution in excess of the amount of the owner's investment; and
(D) (I) neither state law, nor the institution's operating agreement, bylaws, or other organizational documents require the consent of any other owner of the institution in order for any owner to transfer an ownership interest in the institution, including voting rights; and
(II) the institution is able to obtain new investment funding if needed to maintain adequate capital; and
(iii) is able to comply with all legal and regulatory requirements for an insured depository institution under applicable federal and state law; and
(b) for an institution described in Subsection (1) that is not required to be insured by a federal deposit insurance agency, that the institution will operate in a safe and sound manner.
(4) An institution described in Subsection (3)(a) that is organized as a limited liability company shall maintain the characteristics listed in Subsection (3)(a)(ii) during such time as it is authorized to conduct business under this title as a limited liability company.
(5) (a) All rights, privileges, powers, duties, and obligations of an institution described in Subsection (1) that is organized as a limited liability company and its members and managers shall be governed by Title 48, Chapter 2c, Utah Revised Limited Liability Company Act, except:
(i) the following sections do not apply to an institution that is described in Subsection (3)(a):
(A) Subsection 48-2c-402(2)(a)(ii);
(B) Section 48-2c-604;
(C) Section 48-2c-703;
(D) Section 48-2c-708;
(E) Subsection 48-2c-801(2);
(F) Section 48-2c-1102;
(G) Section 48-2c-1104; and
(H) Subsections 48-2c-1201(2) through (5); and
(ii) as otherwise provided in this title.
(b) Notwithstanding Subsection (5)(a), for an institution that is described in Subsection (3)(a):
(i) for purposes of transferring a member's interests in the institution, a member's interest in the institution shall be treated like a share of stock in a corporation; and
(ii) if a member's interest in the institution is transferred voluntarily or involuntarily to another person, the person who receives the member's interest shall obtain the member's entire rights associated with the member's interest in the institution including:
(A) all economic rights; and
(B) all voting rights.
(c) An institution described in Subsection (3)(a) may not by agreement or otherwise change the application of Subsection (5)(a) to the institution.
(6) Unless the context requires otherwise, for the purpose of applying this title to an institution described in Subsection (1) that is organized as a limited liability company:
(a) a citation to Title 16, Chapter 10a, Utah Revised Business Corporation Act, includes the equivalent citation to Title 48, Chapter 2c, Utah Revised Limited Liability Company Act;
(b) "articles of incorporation" includes a limited liability company's articles of organization as that term is used in Section 48-2c-403;
(c) "board of directors" includes one or more persons who have, with respect to an institution described in Subsection (1), authority substantially similar to that of a board of directors of a corporation;
(d) "bylaws" includes a limited liability company's operating agreement as that term is defined in Section 48-2c-102;
(e) "corporation" includes a limited liability company organized under Title 48, Chapter 2c, Utah Revised Limited Liability Company Act;
(f) "director" includes any of the following of a limited liability company:
(i) a manager;
(ii) a director; or
(iii) other person who has with respect to the institution described in Subsection (1), authority substantially similar to that of a director of a corporation;
(g) "dividend" includes distributions made by a limited liability company under Title 48, Chapter 2c, Part 10, Distributions;
(h) "incorporator" includes the organizers of a limited liability company as provided in Title 48, Chapter 2c, Part 4, Formation;
(i) "officer" includes any of the following of an institution described in Subsection (1):
(i) an officer; or
(ii) other person who has with respect to the institution described in Subsection (1) authority substantially similar to that of an officer of a corporation;
(j) "security," "shares," or "stock" of a corporation includes:
(i) a membership interest in a limited liability company as provided in Title 48, Chapter 2c, Part 7, Members; and
(ii) any certificate or other evidence of an ownership interest in a limited liability company; and
(k) "stockholder" or "shareholder" includes an owner of an interest in an institution described in Subsection (1) including a member as provided in Title 48, Chapter 2c, Part 7, Members.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall make rules governing the form of a request for approval filed under this section.
(8) A depository institution organized under the laws of this state may not be organized as or converted to a series of members, managers, or interests in a limited liability company as provided in Section 48-2c-606.
Section 51. Section 7-2-9 is amended to read:
7-2-9
. Conservatorship, receivership, or liquidation of institution -- Appointment of receiver -- Review of actions.(1) Upon taking possession of the institution, the commissioner may appoint a receiver to perform the duties of the commissioner. Subject to any limitations, conditions, or requirements specified by the commissioner and approved by the court, a receiver shall have all the powers and duties of the commissioner under this chapter and the laws of this state to act as a conservator, receiver, or liquidator of the institution. Actions of the commissioner in appointing a receiver shall be subject to review only as provided in Section 7-2-2.
(2) (a) If the deposits of the institution are to any extent insured by a federal deposit insurance agency, the commissioner may appoint that agency as receiver. After receiving notice in writing of the acceptance of the appointment, the commissioner shall file a certificate of appointment in his office and with the clerk of the district court. After the filing of the certificate, the possession of all assets, business, and property of the institution is considered transferred from the institution and the commissioner to the agency, and title to all assets, business, and property of the institution is vested in the agency without the execution of any instruments of conveyance, assignment, transfer, or endorsement.
(b) If a federal deposit insurance agency accepts an appointment as receiver, it has all the powers and privileges provided by the laws of this state and the United States with respect to the conservatorship, receivership, or liquidation of an institution and the rights of its depositors, and other creditors, including authority to make an agreement for the purchase of assets and assumption of deposit and other liabilities by another depository institution or take other action authorized by Title 12 of the United States Code to maintain the stability of the banking system. Such action by a federal deposit insurance agency may be taken upon approval by the court, with or without prior notice. Such actions or agreements may be disapproved, amended, or rescinded only upon a finding by the court that the decisions or actions of the receiver are arbitrary, capricious, fraudulent, or contrary to law. In the event of any conflict between state and federal law, including provisions for adjudicating claims against the institution or receiver, the receiver shall comply with the federal law and any resulting violation of state law shall not by itself constitute grounds for the court to disapprove the actions of the receiver or impose any penalty for such violation.
(c) The commissioner or any receiver appointed by him shall possess all the rights and claims of the institution against any person whose breach of fiduciary duty or violations of the laws of this state or the United States applicable to depository institutions may have caused or contributed to a condition which resulted in any loss incurred by the institution or to its assets in the possession of the commissioner or receiver. As used in this Subsection (2)(c), fiduciary duty includes those duties and standards applicable under statutes and laws of this state and the United States to a director, officer, or other party employed by or rendering professional services to a depository institution whose deposits are insured by a federal deposit insurance agency. Upon taking possession of an institution, no person other than the commissioner or receiver shall have standing to assert any such right or claim of the institution, including its depositors, creditors, or shareholders unless the right or claim has been abandoned by the commissioner or receiver with approval of the court. Any judgment based on the rights and claims of the commissioner or receiver shall have priority in payment from the assets of the judgment debtors.
(d) For the purposes of this section, the term "federal deposit insurance agency" shall include the Federal Deposit Insurance Corporation, the National Credit Union Administration and any departments thereof or successors thereto, and any other federal agency authorized by federal law to act as a conservator, receiver, and liquidator of a federally insured depository institution, including the Resolution Trust Corporation and any department thereof or successor thereto.
(3) The receiver may employ assistants, agents, accountants, and legal counsel. If the receiver is not a federal deposit insurance agency, the compensation to be paid such assistants, agents, accountants, and legal counsel shall be approved by the commissioner. All expenses incident to the receivership shall be paid out of the assets of the institution. If a receiver is not a federal deposit insurance agency, the receiver and any assistants and agents shall provide bond or other security specified by the commissioner and approved by the court for the faithful discharge of all duties and responsibilities in connection with the receivership including the accounting for money received and paid. The cost of the bond shall be paid from the assets of the institution. Suit may be maintained on the bond by the commissioner or by any person injured by a breach of the condition of the bond.
(4) (a) Upon the appointment of a receiver for an institution in possession pursuant to this chapter, the commissioner and the department are exempt from liability or damages for any act or omission of any receiver appointed pursuant to this section.
(b) This section does not limit the right of the commissioner to prescribe and enforce rules regulating a receiver in carrying out its duties with respect to an institution subject to the jurisdiction of the department.
(c) Any act or omission of the commissioner or of any federal deposit insurance agency as a receiver appointed by him while acting pursuant to this chapter shall be deemed to be the exercise of a discretionary function within the meaning of Section [63-30d-301] 63G-7-301 of the laws of this state or Section 28 U.S.C. 2680(a) of the laws of the United States.
(5) Actions, decisions, or agreements of a receiver under this chapter, other than allowance or disallowance of claims under Section 7-2-6, shall be subject to judicial review only as follows:
(a) A petition for review shall be filed with the court having jurisdiction under Section 7-2-2 not more than 90 days after the date the act, decision, or agreement became effective or its terms are filed with the court.
(b) The petition shall state in simple, concise, and direct terms the facts and principles of law upon which the petitioner claims the act, decision, or agreement of the receiver was or would be arbitrary, capricious, fraudulent, or contrary to law and how the petitioner is or may be damaged thereby. The court shall dismiss any petition which fails to allege that the petitioner would be directly injured or damaged by the act, decision, or agreement which is the subject of the petition. Rule 11 of the Utah Rules of Civil Procedure shall apply to all parties with respect to the allegations set forth in a petition or response.
(c) The receiver shall have 30 days after service of the petition within which to respond.
(d) All further proceedings are to be conducted in accordance with the Utah Rules of Civil Procedure.
(6) All notices required under this section shall be made in accordance with the Utah Rules of Civil Procedure and served upon the attorney general of the state of Utah, the commissioner of financial institutions, the receiver of the institution appointed under this chapter, and upon the designated representative of any party in interest who requests in writing such notice.
Section 52. Section 7-2-21 is amended to read:
7-2-21
. Applicability of Utah Procurement Code.No action of the commissioner taken under this chapter or Chapter 19 is subject to the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, the Utah Procurement Code.
Section 53. Section 7-9-59 is amended to read:
7-9-59
. Credit union service organizations -- Limitations on providing services through other entities.(1) This section applies to a credit union service organization in which a credit union organized under this chapter has an ownership interest.
(2) (a) A credit union service organization may provide a service only if the service is:
(i) (A) listed in Subsection (2)(b); or
(B) approved by the commissioner in accordance with Subsection (4)(b); and
(ii) (A) except for the extension of credit by the credit union service organization, limited primarily to:
(I) credit unions that hold an ownership interest in the credit union service organization;
(II) members of credit unions that hold an ownership interest in the credit union service organization;
(III) members of credit unions that contract with the credit union service organization; or
(IV) credit unions that contract with the credit union service organization but do not hold an ownership interest in the credit union service organization; or
(B) for purposes of the extension of credit by the credit union service organization, limited to members of a credit union that holds an ownership interest in the credit union service organization.
(b) Subsection (2)(a) applies to:
(i) the following checking and currency services:
(A) check cashing;
(B) coin and currency services; and
(C) services related to:
(I) a money order;
(II) a savings bond;
(III) a travelers check; or
(IV) the purchase and sale of United States Mint commemorative coins;
(ii) the following clerical, professional, and management services:
(A) accounting services;
(B) courier services;
(C) credit analysis;
(D) facsimile transmission and copying services;
(E) services related to conducting an internal audit for a credit union;
(F) locator services;
(G) services related to management and personnel training and support;
(H) marketing services;
(I) research services; or
(J) services related to a supervisory committee audit;
(iii) consumer mortgage loan origination;
(iv) the following electronic transaction services:
(A) automated teller machine services;
(B) credit card services;
(C) debit card services;
(D) data processing services;
(E) electronic fund transfer services;
(F) services related to electronic income tax filings;
(G) payment item processing;
(H) wire transfer services; or
(I) cyber financial services;
(v) the following financial counseling services:
(A) developing and administering personnel benefit plans including:
(I) individual retirement accounts;
(II) Keogh plans; or
(III) deferred compensation plans;
(B) estate planning;
(C) financial planning and counseling;
(D) income tax preparation;
(E) investment counseling; or
(F) retirement counseling;
(vi) fixed asset services related to the:
(A) management, development, sale, or lease of fixed assets; or
(B) sale, lease, or servicing of computer hardware or software;
(vii) the following insurance brokerage or agency services:
(A) operating as an agency for sale of insurance;
(B) providing vehicle warranty programs; or
(C) providing group purchasing programs;
(viii) the following leasing services:
(A) leasing of personal property; or
(B) real estate leasing of excess credit union service organization property;
(ix) the following loan support services:
(A) debt collection services;
(B) loan processing, servicing, and sales; or
(C) sale of repossessed collateral;
(x) the extension of credit including member-business loans;
(xi) the following record retention, security, and disaster recovery services:
(A) alarm-monitoring and other security services;
(B) disaster recovery services;
(C) services related to:
(I) microfilm;
(II) microfiche;
(III) optical and electronic imaging; or
(IV) CD-ROM data storage retrieval;
(D) providing forms and supplies; or
(E) services related to record retention and storage;
(xii) securities brokerage services;
(xiii) operation of shared credit union branch services, including service centers;
(xiv) student loan origination;
(xv) travel agency services;
(xvi) the following trust and trust-related services:
(A) acting as an administrator for a prepaid legal service plan;
(B) acting in a fiduciary capacity including as:
(I) trustee;
(II) guardian;
(III) conservator; or
(IV) estate administrator; or
(C) trust services; or
(xvii) making credit union service organization investments in noncredit union service organization service providers.
(3) (a) One or more credit unions organized under this chapter may form a credit union service organization on or after the day on which each credit union forming the credit union service organization obtains in accordance with this section the approval by the commissioner for the formation of the credit union service organization.
(b) To obtain approval from the commissioner for the formation of a credit union service organization, each credit union that is forming a credit union service organization shall file an application with the commissioner that specifies:
(i) whether the credit union meets the capital and surplus standards established by rule by the commissioner;
(ii) the services to be provided by the credit union service organization; and
(iii) any information required by rule by the commissioner.
(c) The commissioner may by rule establish the requirements for forming of a credit union service organization to ensure that:
(i) the credit union service organization as formed:
(A) has the financial capacity to provide the services described in the application requesting the formation of the credit union service organization in a safe and sound manner; and
(B) has the managerial expertise to provide the services described in the application requesting the formation of the credit union service organization in a safe and sound manner; and
(ii) any potential harm that granting the approval may have on other institutions subject to the jurisdiction of the department does not clearly outweigh the probable beneficial effect of the credit union service organization providing the services.
(4) (a) A credit union service organization may provide a service that is described in Subsection (2)(b) but not listed in the application requesting the formation of the credit union service organization by filing written notice with the commissioner at least 30 days before the day on which the credit union service organization first provides the service.
(b) A credit union service organization may provide a service not described in Subsection (2)(b) if:
(i) the credit union service organization files a written request for approval to provide the service with the commissioner; and
(ii) the commissioner approves the credit union service organization providing that service.
(c) The commissioner may at any time limit the services engaged in by a credit union service organization on the basis of:
(i) a supervisory reason;
(ii) a legal reason; or
(iii) a safety and soundness reason.
(5) The commissioner may conduct examinations of a credit union service organization in accordance with Section 7-1-314.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may make rules for purposes of this section:
(a) defining what constitutes an ownership interest held by a credit union;
(b) specifying the information required to be included in an application seeking to form a credit union service organization;
(c) specifying in accordance with Subsection (3), the requirements for forming a credit union service organization;
(d) specifying the procedure for obtaining approval to provide a service under Subsection (4)(a); and
(e) specifying the conditions under which a credit union service organization may provide a service described in Subsection (2).
(7) (a) Except as provided in Subsection (7)(b), a credit union may not provide any service to a member of the credit union through:
(i) a person who is controlled by or is under common control with the credit union whether or not the control is exercised:
(A) directly; or
(B) indirectly through one or more intermediary controls; or
(ii) an entity in which the credit union holds an ownership interest.
(b) Notwithstanding Subsection (7)(a), a credit union may provide services to a member of a credit union:
(i) through a credit union service organization to the extent permitted by this section; or
(ii) through a loan production office to the extent those services are authorized by Section 7-1-715.
(c) Notwithstanding Section 7-1-103, for purposes of this section, "control" means the power, directly, or indirectly, to:
(i) direct or exercise a controlling influence over:
(A) the management or policies of an entity; or
(B) the election of a majority of the directors or trustees of an entity;
(ii) vote 20% or more of any class of voting securities of an entity by an individual; or
(iii) vote more than 5% of any class of voting securities of an entity by a person other than an individual.
(d) Nothing within this section may be interpreted as prohibiting a credit union from entering into a contract or agreement to provide services to members of the credit union if the person with whom the credit union enters into the contract agreement is not a person described in Subsection (7)(a).
(8) (a) A credit union holding an ownership interest in a credit union service organization operating on May 5, 2003 is not required to file an application requesting to form that credit union service organization.
(b) A credit union service organization operating on May 5, 2003:
(i) shall provide the commissioner written notice of the services the credit union service organization provides by no later than July 1, 2003; and
(ii) may provide a service not described in Subsection (2)(b) on or after July 1, 2003 only if the credit union service organization has obtained approval from the commissioner in accordance with Subsection (4).
Section 54. Section 7-23-103 is amended to read:
7-23-103
. Registration -- Rulemaking.(1) (a) It is unlawful for a person to engage in the business of a check casher in Utah or with a Utah resident unless the person:
(i) registers with the department in accordance with this chapter; and
(ii) maintains a valid registration.
(b) It is unlawful for a person to operate a mobile facility in this state to engage in the business of a check casher.
(2) (a) A registration and a renewal of a registration expires on April 30 of each year unless on or before that date the person renews the registration.
(b) To register under this section, a person shall:
(i) pay an original registration fee established under Subsection 7-1-401(8); and
(ii) submit a registration statement containing the information described in Subsection (2)(d).
(c) To renew a registration under this section, a person shall:
(i) pay the annual fee established under Subsection 7-1-401(5); and
(ii) submit a renewal statement containing the information described in Subsection (2)(d).
(d) A registration or renewal statement shall state:
(i) the name of the person;
(ii) the name in which the business will be transacted if different from that required in Subsection (2)(d)(i);
(iii) the address of the person's principal business office, which may be outside this state;
(iv) the addresses of all offices in this state at which the person conducts the business of a check casher;
(v) if the person conducts the business of a check casher in this state but does not maintain an office in this state, a brief description of the manner in which the business is conducted;
(vi) the name and address in this state of a designated agent upon whom service of process may be made;
(vii) disclosure of any injunction, judgment, administrative order, or conviction of any crime involving moral turpitude with respect to that person or any officer, director, manager, operator, or principal of that person; and
(viii) any other information required by the rules of the department.
(e) (i) The commissioner may impose an administrative fine determined under Subsection (2)(e)(ii) on a person if:
(A) the person is required to be registered under this chapter;
(B) the person fails to register or renew a registration in accordance with this chapter;
(C) the department notifies the person that the person is in violation of this chapter for failure to be registered; and
(D) the person fails to register within 30 days after the day on which the person receives the notice described in Subsection (2)(e)(i)(C).
(ii) Subject to Subsection (2)(e)(iii), the administrative fine imposed under this section is:
(A) $500 if the person:
(I) has no office in this state at which the person conducts the business of a check casher; or
(II) has one office in this state at which the person conducts the business of a check casher; or
(B) if the person has two or more offices in this state at which the person conducts the business of a check casher, $500 for each office at which the person conducts the business of a check casher.
(iii) The commissioner may reduce or waive a fine imposed under this Subsection (2)(e) if the person shows good cause.
(3) If the information in a registration or renewal statement required under Subsection (2) becomes inaccurate after filing, a person is not required to notify the department until:
(a) that person is required to renew the registration; or
(b) the department specifically requests earlier notification.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules consistent with this section providing for the form, content, and filing of a registration and renewal statement.
Section 55. Section 7-23-106 is amended to read:
7-23-106
. Enforcement by department -- Rulemaking.(1) Subject to the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the department may:
(a) receive and act on complaints;
(b) take action designed to obtain voluntary compliance with this chapter;
(c) commence administrative or judicial proceedings on its own initiative to enforce compliance with this chapter; or
(d) take action against any check casher that fails to:
(i) respond to the department, in writing within 30 business days of the day on which the check casher receives notice from the department of a complaint filed with the department; or
(ii) submit information as requested by the department.
(2) The department may:
(a) counsel persons and groups on their rights and duties under this chapter;
(b) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(i) restrict or prohibit lending or servicing practices that are misleading, unfair, or abusive;
(ii) promote or assure fair and full disclosure of the terms and conditions of agreements and communications between check cashers and customers; or
(iii) promote or assure uniform application of or to resolve ambiguities in applicable state or federal laws or federal regulations; and
(c) employ hearing examiners, clerks, and other employees and agents as necessary to perform the department's duties under this chapter.
Section 56. Section 7-23-108 is amended to read:
7-23-108
. Penalties.(1) A person who violates this chapter or who files materially false information with a registration or renewal under Section 7-23-103 is:
(a) guilty of a class B misdemeanor, except for a violation of:
(i) Subsection 7-23-105(1)(f)(i), (ii), or (iii); or
(ii) rules made under Subsection 7-23-106(2)(b); and
(b) subject to revocation of a person's registration under this chapter.
(2) Subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the department determines that a person is engaging in the business of cashing checks in violation of this chapter, the department may:
(a) revoke that person's registration under this chapter;
(b) issue a cease and desist order from committing any further violations;
(c) prohibit the person from continuing to engage in the business of a check casher;
(d) impose an administrative fine not to exceed $1,000 per violation, except that:
(i) a fine imposed under Subsection 7-23-103(2)(e) shall comply with Subsection 7-23-103(2)(e); and
(ii) the aggregate total of fines imposed under this chapter against a person in a calendar year may not exceed $30,000 for that calendar year; or
(e) take any combination of actions listed under this Subsection (2).
Section 57. Section 7-24-201 is amended to read:
7-24-201
. Registration -- Rulemaking.(1) (a) It is unlawful for a person to extend a title loan in Utah or with a Utah resident unless the person:
(i) registers with the department in accordance with this chapter; and
(ii) maintains a valid registration.
(b) It is unlawful for a person to operate a mobile facility in this state to extend a title loan.
(2) (a) A registration and a renewal of a registration expires on April 30 of each year unless on or before that date the person renews the registration.
(b) To register under this section, a person shall:
(i) pay an original registration fee established under Subsection 7-1-401(8); and
(ii) submit a registration statement containing the information described in Subsection (2)(d).
(c) To renew a registration under this section, a person shall:
(i) pay the annual fee established under Subsection 7-1-401(5); and
(ii) submit a renewal statement containing the information described in Subsection (2)(d).
(d) A registration or renewal statement shall state:
(i) the name of the person;
(ii) the name in which the business will be transacted if different from that required in Subsection (2)(d)(i);
(iii) the address of the person's principal business office, which may be outside this state;
(iv) the addresses of all offices in this state at which the person extends title loans;
(v) if the person extends title loans in this state but does not maintain an office in this state, a brief description of the manner in which the business is conducted;
(vi) the name and address in this state of a designated agent upon whom service of process may be made;
(vii) disclosure of any injunction, judgment, administrative order, or conviction of any crime involving moral turpitude with respect to that person or any officer, director, manager, operator, or principal of that person; and
(viii) any other information required by the rules of the department.
(e) (i) The commissioner may impose an administrative fine determined under Subsection (2)(e)(ii) on a person if:
(A) the person is required to be registered under this chapter;
(B) the person fails to register or renew a registration in accordance with this chapter;
(C) the department notifies the person that the person is in violation of this chapter for failure to be registered; and
(D) the person fails to register within 30 days after the day on which the person receives the notice described in Subsection (2)(e)(i)(C).
(ii) Subject to Subsection (2)(e)(iii), the administrative fine imposed under this Subsection (2)(e) is:
(A) $500 if the person:
(I) has no office in this state at which the person extends a title loan; or
(II) has one office in this state at which the person extends a title loan; or
(B) if the person has two or more offices in this state at which the person extends a title loan, $500 for each office at which the person extends a title loan.
(iii) The commissioner may reduce or waive a fine imposed under this Subsection (2)(e) if the person shows good cause.
(3) If the information in a registration or renewal statement required under Subsection (2) becomes inaccurate after filing, a person is not required to notify the department until:
(a) that person is required to renew the registration; or
(b) the department specifically requests earlier notification.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules consistent with this section providing for the form, content, and filing of a registration and renewal statement.
Section 58. Section 7-24-203 is amended to read:
7-24-203
. Disclosure form for title loans.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall adopt a disclosure form for title loans that complies with this section.
(2) The department shall specify by rule:
(a) the information to be provided in the disclosure form including:
(i) the costs of obtaining a title loan;
(ii) the consequences of defaulting on a title loan;
(iii) generally available alternatives to a title loan; and
(iv) methods of obtaining credit counseling or other financial advice;
(b) the type size of the disclosure form; and
(c) the manner in which a title lender shall conspicuously provide the disclosure form to a person seeking a title loan.
Section 59. Section 7-24-301 is amended to read:
7-24-301
. Enforcement by department -- Rulemaking.(1) Subject to the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the department may:
(a) receive and act on complaints;
(b) take action designed to obtain voluntary compliance with this chapter; or
(c) commence administrative or judicial proceedings on its own initiative to enforce compliance with this chapter.
(2) The department may:
(a) counsel persons and groups on their rights and duties under this chapter;
(b) make rules to:
(i) restrict or prohibit lending or servicing practices that are misleading, unfair, or abusive;
(ii) promote or assure fair and full disclosure of the terms and conditions of agreements and communications between title lenders and customers; or
(iii) promote or assure uniform application of or to resolve ambiguities in applicable state or federal laws or federal regulations; and
(c) employ hearing examiners, clerks, and other employees and agents as necessary to perform the department's duties under this chapter.
Section 60. Section 7-24-303 is amended to read:
7-24-303
. Penalties.(1) A person who violates this chapter or who files materially false information with a registration or renewal under Section 7-24-201 is:
(a) guilty of a class B misdemeanor except for a violation of:
(i) Subsection 7-24-202(1)(e)(i), (ii), or (iii); or
(ii) rules made under Subsection 7-24-301(2)(b); and
(b) subject to revocation of a person's registration under this chapter.
(2) Subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the department determines that a person is extending title loans in violation of this chapter, the department may:
(a) revoke that person's registration under this chapter;
(b) issue a cease and desist order from committing any further violations;
(c) prohibit the person from continuing to extend title loans;
(d) impose an administrative fine not to exceed $1,000 per violation, except that:
(i) a fine imposed under Subsection 7-24-201(2)(e) shall comply with Subsection 7-24-201(2)(e); and
(ii) the aggregate total of fines imposed under this chapter against a person in a calendar year may not exceed $30,000 for that calendar year; or
(e) take any combination of actions listed under this Subsection (2).
(3) A person is not subject to the penalties under this section for a violation of this chapter that was not willful or intentional, including a violation resulting from a clerical error.
Section 61. Section 9-1-203 is amended to read:
9-1-203
. Compliance with Administrative Procedures Act.The department and all of its divisions, boards, offices, bureaus, commissions, and other entities shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 62. Section 9-1-809 is amended to read:
9-1-809
. Commission duties.(1) The commission shall, in the performance of its tasks and functions:
(a) ensure that its funding decisions meet all federal and state statutory requirements;
(b) recommend innovative, creative, statewide service programs to increase volunteer participation in all age groups and community-based problem-solving among diverse participants;
(c) develop and implement a centralized, organized system of obtaining information and technical support concerning volunteerism and community service recruitment, projects, training methods, materials, and activities throughout the state and share such information and support upon request;
(d) promote strong interagency collaboration as an avenue for maximizing resources and providing that model on the state level;
(e) provide public recognition and support of individual volunteer efforts and successful or promising private sector initiatives and public/private partnerships that address community needs;
(f) stimulate increased community awareness of the impact of volunteer services in the state;
(g) utilize local, state, and, subject to [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, federal resources to reinforce, expand, and initiate quality service programs;
(h) assist in the planning and implementation of volunteer programs;
(i) serve as the state's liaison and voice to appropriate national and state organizations that support its mission;
(j) develop a three-year comprehensive state and community service plan and establish state priorities;
(k) preselect programs and prepare applications to the corporation pursuant to the act;
(l) prepare service learning applications;
(m) administer the grants program and oversee and monitor the performance and progress of funded programs;
(n) implement comprehensive, nonduplicative evaluation and monitoring systems;
(o) provide technical assistance to local nonprofit organizations and other entities;
(p) assist in the development of programs established in the act;
(q) develop mechanisms for recruitment and placement of people interested in participating in national service programs;
(r) assist in the provision of health care and child care benefits to participants under the act;
(s) make priority program recommendations to the corporation;
(t) coordinate its activities with the activities of other state agencies that administer federal block grants; and
(u) coordinate its activities with the activities of other volunteer service programs.
(2) The commission may not directly operate or run any national service program receiving financial assistance, in any form, from the corporation.
(3) The commission may, subject to [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, receive and accept federal funds, and may receive and accept private gifts, donations, or funds from any source. All moneys shall be deposited with the state and shall be continuously available to the commission to carry out the purposes of this part.
(4) (a) The commission shall establish a community volunteer training program to assist the state's school districts in implementing the literacy programs required under Section 53A-1-801.
(b) The program shall focus on:
(i) recruitment of volunteers to assist public schools in reading improvement programs;
(ii) providing for the training of volunteers recruited under Subsection (4)(b)(i), which may include training in teaching phonetic decoding skills and phonemic awareness, to assist public schools and community based, not-for-profit literacy programs in accomplishing the literacy goals established in Section 53A-1-801;
(iii) providing grants to entities whose primary purpose is to support literacy by working with either school districts or individual schools to accomplish their literacy goals; and
(iv) providing materials and supplies which may be used by the commission or the public schools or both to help public education accomplish its literacy goals under Section 53A-1-801.
(c) The commission shall coordinate its activities under this Subsection (4) with other state and community entities engaged in child literacy programs.
(d) (i) The commission shall make an annual report to the State Board of Education on:
(A) how public monies were spent on the programs authorized under this Subsection (4); and
(B) the number of volunteers recruited for and participating in the program.
(ii) The commission shall make its report by July 1, with the first report required by July 1, 2000.
Section 63. Section 9-3-308 is amended to read:
9-3-308
. Relation to certain acts.(1) The authority is exempt from:
(a) Title 51, Chapter 5, Funds Consolidation Act;
(b) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(c) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(d) Title 63A, Chapter 1, Utah Administrative Services Code; and
(e) Title 67, Chapter 19, Utah State Personnel Management Act.
(2) The authority shall be subject to audit by the state auditor pursuant to Title 67, Chapter 3, and by the legislative auditor general pursuant to Section 36-12-15.
Section 64. Section 9-3-410 is amended to read:
9-3-410
. Relation to certain acts.(1) The authority is exempt from:
(a) Title 51, Chapter 5, Funds Consolidation Act;
(b) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(c) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(d) Title 63A, Chapter 1, Utah Administrative Services Code; and
(e) Title 67, Chapter 19, Utah State Personnel Management Act.
(2) The authority shall be subject to audit by:
(a) the state auditor pursuant to Title 67, Chapter 3, Auditor; and
(b) the legislative auditor general pursuant to Section 36-12-15.
(3) The authority shall annually report to the Retirement and Independent Entities Committee created under Section 63E-1-201 concerning the authority's implementation of this part.
Section 65. Section 9-4-202 is amended to read:
9-4-202
. Powers and duties of division.(1) The division shall:
(a) assist local governments and citizens in the planning, development, and maintenance of necessary public infrastructure and services;
(b) cooperate with, and provide technical assistance to, counties, cities, towns, regional planning commissions, area-wide clearinghouses, zoning commissions, parks or recreation boards, community development groups, community action agencies, and other agencies created for the purpose of aiding and encouraging an orderly, productive, and coordinated development of the state and its political subdivisions;
(c) assist the governor in coordinating the activities of state agencies which have an impact on the solution of community development problems and the implementation of community plans;
(d) serve as a clearinghouse for information, data, and other materials which may be helpful to local governments in discharging their responsibilities and provide information on available federal and state financial and technical assistance;
(e) carry out continuing studies and analyses of the problems faced by communities within the state and develop such recommendations for administrative or legislative action as appear necessary;
(f) assist in funding affordable housing and addressing problems of homelessness;
(g) support economic development activities through grants, loans, and direct programs financial assistance;
(h) certify project funding at the local level in conformance with federal, state, and other requirements;
(i) utilize the capabilities and facilities of public and private universities and colleges within the state in carrying out its functions;
(j) assist and support local governments, community action agencies, and citizens in the planning, development, and maintenance of home weatherization, energy efficiency, and antipoverty activities; and
(k) assist and support volunteer efforts in the state.
(2) The division may:
(a) by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, seek federal grants, loans, or participation in federal programs;
(b) if any federal program requires the expenditure of state funds as a condition to participation by the state in any fund, property, or service, with the governor's approval, expend whatever funds are necessary out of the money provided by the Legislature for the use of the department;
(c) in accordance with Part 13, Domestic Violence Shelters, assist in developing, constructing, and improving shelters for victims of domestic violence, as described in Section 77-36-1, through loans and grants to nonprofit and governmental entities; and
(d) assist, when requested by a county or municipality, in the development of accessible housing.
(3) (a) The division is recognized as an issuing authority as defined in Subsection 9-4-502(7), entitled to issue bonds from the Small Issue Bond Account created in Subsection 9-4-506(1)(c) as a part of the state's private activity bond volume cap authorized by the Internal Revenue Code of 1986 and computed under Section 146 of the code.
(b) To promote and encourage the issuance of bonds from the Small Issue Bond Account for manufacturing projects, the division may:
(i) develop campaigns and materials that inform qualified small manufacturing businesses about the existence of the program and the application process;
(ii) assist small businesses in applying for and qualifying for these bonds; or
(iii) develop strategies to lower the cost to small businesses of applying for and qualifying for these bonds, including making arrangements with financial advisors, underwriters, bond counsel, and other professionals involved in the issuance process to provide their services at a reduced rate when the division can provide them with a high volume of applicants or issues.
Section 66. Section 9-4-306 is amended to read:
9-4-306
. Powers.The impact board may:
(1) appoint, where it considers this appropriate, a hearing examiner or administrative law judge with authority to conduct any hearings, make determinations, and enter appropriate findings of facts, conclusions of law, and orders under authority of the impact board under Sections 11-13-306 and 11-13-307;
(2) appoint additional professional and administrative staff necessary to effectuate Sections 11-13-306 and 11-13-307;
(3) make independent studies regarding matters submitted to it under Sections 11-13-306 and 11-13-307 that the impact board, in its discretion, considers necessary, which studies shall be made a part of the record and may be considered in the impact board's determination; and
(4) make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act it considers necessary to perform its responsibilities under Sections 11-13-306 and 11-13-307.
Section 67. Section 9-4-307 is amended to read:
9-4-307
. Impact fund administered by impact board -- Eligibility for assistance -- Review by board -- Administration costs -- Annual report.(1) (a) The impact board shall:
(i) administer the impact fund in a manner that will keep a portion of the impact fund revolving;
(ii) determine provisions for repayment of loans; and
(iii) establish criteria for determining eligibility for assistance under this part.
(b) (i) Criteria for awarding loans or grants made from funds described in Subsection 9-4-303(5) shall be consistent with Subsection 9-4-303(5).
(ii) Criteria for awarding grants made from funds described in Subsection 9-4-303 (2)(c) shall be consistent with Subsection 9-4-303(6).
(c) In order to receive assistance under this part, subdivisions and interlocal agencies shall submit formal applications containing the information that the impact board requires.
(2) In determining eligibility for loans and grants under this part, the impact board shall consider the following:
(a) the subdivision's or interlocal agency's current mineral lease production;
(b) the feasibility of the actual development of a resource that may impact the subdivision or interlocal agency directly or indirectly;
(c) current taxes being paid by the subdivision's or interlocal agency's residents;
(d) the borrowing capacity of the subdivision or interlocal agency, its ability and willingness to sell bonds or other securities in the open market, and its current and authorized indebtedness;
(e) all possible additional sources of state and local revenue, including utility user charges;
(f) the availability of federal assistance funds;
(g) probable growth of population due to actual or prospective natural resource development in an area;
(h) existing public facilities and services;
(i) the extent of the expected direct or indirect impact upon public facilities and services of the actual or prospective natural resource development in an area; and
(j) the extent of industry participation in an impact alleviation plan, either as specified in [Title 63, Chapter 51] Title 63M, Chapter 5, Resource Development, or otherwise.
(3) The impact board may not fund any education project that could otherwise have reasonably been funded by a school district through a program of annual budgeting, capital budgeting, bonded indebtedness, or special assessments.
(4) The impact board may restructure all or part of the agency's or subdivision's liability to repay loans for extenuating circumstances.
(5) The impact board shall:
(a) review the proposed uses of the impact fund for loans or grants before approving them and may condition its approval on whatever assurances that the impact board considers to be necessary to ensure that the proceeds of the loan or grant will be used in accordance with the Leasing Act and this part; and
(b) ensure that each loan specifies the terms for repayment and is evidenced by general obligation, special assessment, or revenue bonds, notes, or other obligations of the appropriate subdivision or interlocal agency issued to the impact board under whatever authority for the issuance of those bonds, notes, or obligations exists at the time of the loan.
(6) The impact board shall allocate from the impact fund to the department those funds that are appropriated by the Legislature for the administration of the impact fund, but this amount may not exceed 2% of the annual receipts to the impact fund.
(7) The department shall make an annual report to the Legislature concerning the number and type of loans and grants made as well as a list of subdivisions and interlocal agencies that received this assistance.
Section 68. Section 9-4-509 is amended to read:
9-4-509
. Procedures -- Adjudicative proceedings.The board of review shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 69. Section 9-4-704 is amended to read:
9-4-704
. Distribution of fund moneys.(1) The executive director shall:
(a) make grants and loans from the fund for any of the activities authorized by Section 9-4-705, as directed by the board;
(b) establish the criteria with the approval of the board by which loans and grants will be made; and
(c) determine with the approval of the board the order in which projects will be funded.
(2) The executive director shall distribute, as directed by the board, any federal moneys contained in the fund according to the procedures, conditions, and restrictions placed upon the use of those moneys by the federal government.
(3) (a) The executive director shall distribute, as directed by the board, any funds received pursuant to Section 17C-1-412 to pay the costs of providing income targeted housing within the community that created the community development and renewal agency under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies.
(b) As used in Subsection (3)(a):
(i) "Community" has the meaning as defined in Section 17C-1-102.
(ii) "Income targeted housing" has the meaning as defined in Section 17C-1-102.
(4) Except federal money and money received under Section 17C-1-412, the executive director shall distribute, as directed by the board, all other moneys from the fund according to the following requirements:
(a) Not less than 30% of all fund moneys shall be distributed to rural areas of the state.
(b) At least 50% of the moneys in the fund shall be distributed as loans to be repaid to the fund by the entity receiving them.
(i) (A) Of the fund moneys distributed as loans, at least 50% shall be distributed to benefit persons whose annual income is at or below 50% of the median family income for the state.
(B) The remaining loan moneys shall be distributed to benefit persons whose annual income is at or below 80% of the median family income for the state.
(ii) The executive director or his designee shall lend moneys in accordance with this Subsection (4) at a rate based upon the borrower's ability to pay.
(c) Any fund moneys not distributed as loans shall be distributed as grants.
(i) At least 90% of the fund moneys distributed as grants shall be distributed to benefit persons whose annual income is at or below 50% of the median family income for the state.
(ii) The remaining fund moneys distributed as grants may be used by the executive director to obtain federal matching funds or for other uses consistent with the intent of this part, including the payment of reasonable loan servicing costs, but no more than 3% of the revenues of the fund may be used to offset other department or board administrative expenses.
(5) The executive director may with the approval of the board:
(a) enact rules to establish procedures for the grant and loan process by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(b) service or contract, pursuant to [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, for the servicing of loans made by the fund.
Section 70. Section 9-4-906 is amended to read:
9-4-906
. Relation to certain acts.(1) The corporation is exempt from:
(a) Title 51, Chapter 5, Funds Consolidation Act;
(b) Title 51, Chapter 7, State Money Management Act;
(c) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(d) [Title 63, Chapter 38a] Title 63J, Chapter 2, Revenue Procedures and Control Act;
(e) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(f) Title 63A, Utah Administrative Services Code; and
(g) Title 67, Chapter 19, Utah State Personnel Management Act.
(2) The corporation shall comply with:
(a) Title 52, Chapter 4, Open and Public Meetings Act; and
(b) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 71. Section 9-4-917 is amended to read:
9-4-917
. Notes, bonds, other obligations -- Not debt liability -- Expenses payable from funds provided -- Corporation without authority to incur liability on behalf of state -- Relationship to Governmental Immunity Act of Utah.(1) (a) Notes, bonds, and other obligations issued under this part do not constitute a debt or liability of this state or of any county, city, town, village, school district, or any other political subdivision of the state, nor shall the notes, bonds, or other obligations constitute the loaning of credit of the state or of any county, city, town, township, district, or any other political subdivision of the state, nor may the notes, bonds, or other obligations be payable from funds other than those of the corporation.
(b) All notes, bonds, or other obligations shall contain on their face a statement to the effect that:
(i) the corporation is obligated to pay the note, bond, or obligation solely from the revenues or other funds of the corporation;
(ii) neither this state nor any political subdivision of it is obligated to pay the note, bond, or obligation; and
(iii) neither the faith and credit nor the taxing power of this state or any political subdivision of it is pledged to the payment of principal, or redemption price of, or the interest on the notes, bonds, or other obligations.
(2) All expenses incurred in carrying out this act shall be payable solely from funds provided under this part, and nothing in this part shall be construed to authorize the corporation to incur indebtedness or liability on behalf of or payable by this state or any political subdivision of it.
(3) (a) [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, shall apply to the corporation.
(b) Notwithstanding Subsection (3)(a), no claim may be brought against the state, any public official or employee of the state, another public entity, or any public official or employee of another public entity, based on or arising from:
(i) any failure or alleged failure to fulfill a contractual obligation of the corporation;
(ii) any act or failure to act of the corporation or any of its trustees, officers, employees, agents, or representatives; or
(iii) any failure of the corporation to comply with the requirements of any law or regulation.
(c) The provisions of Subsection (3)(b) do not apply to a claim of a current or former officer or employee of the corporation for the retirement or insurance benefits.
Section 72. Section 9-4-1103 is amended to read:
9-4-1103
. Utah State Fair Corporation -- Legal status -- Powers.(1) There is created an independent public nonprofit corporation known as the "Utah State Fair Corporation."
(2) The board shall file articles of incorporation for the corporation with the Division of Corporations and Commercial Code.
(3) The corporation shall, subject to this part, have all powers and authority permitted nonprofit corporations by law.
(4) The corporation shall, subject to approval of the board:
(a) have general management, supervision, and control over all activities relating to the state fair and have charge of all state expositions except as otherwise provided by statute;
(b) for public entertainment, displays, and exhibits or similar events:
(i) provide, sponsor, or arrange the events;
(ii) publicize and promote the events; and
(iii) secure funds to cover the cost of the exhibits from:
(A) private contributions;
(B) public appropriations;
(C) admission charges; and
(D) other lawful means;
(c) establish the time, place, and purpose of state expositions; and
(d) acquire and designate exposition sites.
(5) (a) The corporation shall:
(i) use generally accepted accounting principals in accounting for its assets, liabilities, and operations;
(ii) seek corporate sponsorships for the state fair park and for individual buildings or facilities within the fair park;
(iii) work with county and municipal governments, the Salt Lake Convention and Visitor's Bureau, the Utah Travel Council, and other entities to develop and promote expositions and the use of the state fair park;
(iv) develop and maintain a marketing program to promote expositions and the use of the state fair park;
(v) in cooperation with the Division of Facilities Construction and Management, maintain the physical appearance and structural integrity of the state fair park and the buildings located at the state fair park;
(vi) hold an annual exhibition that:
(A) is called the state fair or a similar name;
(B) includes expositions of livestock, poultry, agricultural, domestic science, horticultural, floricultural, mineral, and industrial products, manufactured articles, and domestic animals that, in the corporation's opinion will best stimulate agricultural, industrial, artistic, and educational pursuits and the sharing of talents among the people of Utah;
(C) includes the award of premiums for the best specimens of the exhibited articles and animals;
(D) permits competition by livestock exhibited by citizens of other states and territories of the United States; and
(E) is arranged according to plans approved by the board;
(vii) fix the conditions of entry to the exposition described in Subsection (5)(a)(vi); and
(viii) publish a list of premiums that will be awarded at the exhibition described in Subsection (5)(a)(vi) for the best specimens of exhibited articles and animals.
(b) In addition to the state fair to be held in accordance with Subsection (5)(a)(vi), the corporation may hold other exhibitions of livestock, poultry, agricultural, domestic science, horticultural, floricultural, mineral, and industrial products, manufactured articles, and domestic animals that, in its opinion, will best stimulate agricultural, industrial, artistic, and educational pursuits and the sharing of talents among the people of Utah.
(6) The corporation may:
(a) employ advisers, consultants, and agents, including financial experts and independent legal counsel, and fix their compensation;
(b) procure insurance against any loss in connection with its property and other assets, including mortgage loans;
(c) receive and accept aid or contributions of money, property, labor, or other things of value from any source, including any grants or appropriations from any department, agency, or instrumentality of the United States or Utah;
(d) hold, use, loan, grant, and apply that aid and those contributions to carry out the purposes of the corporation, subject to the conditions, if any, upon which the aid and contributions were made;
(e) enter into management agreements with any person or entity for the performance of its functions or powers;
(f) establish whatever accounts and procedures as necessary to budget, receive, and disburse, account for, and audit all funds received, appropriated, or generated;
(g) enter into agreements for the leasing of any of the facilities at the state fair park, if approved by the board; and
(h) sponsor events as approved by the board.
(7) (a) Except as provided in Subsection (7)(c), as an independent agency of Utah, the corporation is exempt from:
(i) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(ii) Title 51, Chapter 7, State Money Management Act;
(iii) Title 63A, Utah Administrative Services Code;
(iv) Title 51, Chapter 5, Funds Consolidation Act;
(v) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; and
(vi) Title 67, Chapter 19, Utah State Personnel Management Act.
(b) The board shall adopt policies parallel to and consistent with:
(i) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(ii) Title 51, Chapter 7, State Money Management Act;
(iii) Title 63A, Utah Administrative Services Code;
(iv) Title 51, Chapter 5, Funds Consolidation Act; and
(v) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(c) The corporation shall comply with the legislative approval requirements for new facilities established in Subsection 63A-5-104(3).
Section 73. Section 9-4-1301 is amended to read:
9-4-1301
. Assistance to domestic violence shelters -- Rulemaking authority.(1) The Division of Child and Family Services within the Department of Human Services has statutory responsibility to provide violence services, including temporary shelter, to victims of domestic violence pursuant to the provisions of Sections 62A-4a-101 and 62A-4a-105. The division may assist the Division of Child and Family Services by providing for the development, construction, and improvement of shelters for victims of domestic violence, as described in Section 77-36-1, through loans and grants to nonprofit and governmental entities.
(2) No later than July 1, 2001, the division shall, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules establishing:
(a) procedures for applying for loans and grants;
(b) criteria for awarding loans and grants; and
(c) requirements for the repayment of loans.
(3) The division may appoint an advisory panel to:
(a) assist the division in developing rules under Subsection (2); and
(b) recommend how available funds should be disbursed.
(4) The division shall make loans and grants with monies specifically appropriated for that purpose.
(5) The division shall coordinate with the Division of Child and Family Services in complying with the provisions of this section.
Section 74. Section 9-4-1404 is amended to read:
9-4-1404
. Duties of office.The office shall:
(1) coordinate state activities designed to reduce poverty;
(2) encourage entities in the private sector to participate in efforts to ameliorate poverty in the community;
(3) cooperate with agencies of local, state, and federal government in reducing poverty and implementing community, social, and economic programs;
(4) receive and expend funds for the purposes outlined in this part;
(5) enter into contracts with and award grants to public and private nonprofit agencies and organizations;
(6) develop a state plan based on needs identified by community action agencies and community action statewide organizations;
(7) designate community action agencies to receive funds through the Community Services Block Grant program;
(8) fund community action agencies and community action statewide organizations;
(9) make rules in conjunction with the division pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to carry out the purposes of this part;
(10) provide assistance to local governments or private organizations for the purpose of establishing and operating a community action agency;
(11) provide technical assistance to community action agencies to improve program planning, program development, administration, and the mobilization of public and private resources;
(12) convene public meetings which provide citizens the opportunity to comment on public policies and programs to reduce poverty;
(13) advise the governor and Legislature of the nature and extent of poverty in the state and make recommendations concerning changes in state and federal policies and programs;
(14) encourage Utah's nonprofit humanitarian assistance agencies serving low-income persons by facilitating, coordinating, training, partnerships, and providing technical assistance in addressing Utah's low-income persons by enhancing management, improving service and program delivery, and preserving flexibility and local initiative;
(15) develop and implement management goals which fulfill the Community Services Block Grant mission, state requirements, and the mandates of federal legislation;
(16) prepare a Community Services Block Grant plan which contains provisions describing how the state will carry out the assurances of the Community Services Block Grant Act;
(17) act as the state agency responsible for the evaluation and improvement of emergency food assistance services in the state;
(18) monitor the impact of social policies on the emergency food network;
(19) provide training and technical assistance to all grantees to assist them in program development and implementation, compliance with state and federal regulations, and reporting and management information systems;
(20) certify, monitor, and decertify qualified emergency food agencies for purposes of the sales tax refund under Section 59-12-902; and
(21) administer other programs to alleviate poverty assigned to the office.
Section 75. Section 9-4-1406 is amended to read:
9-4-1406
. Evaluations -- Reports.(1) The office shall periodically evaluate grantees of Community Services Block Grant funds as established by rule by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Grantees of Community Services Block Grant funds shall submit to the office a year-end report, covering a reporting period consistent with the federal fiscal year, which provides an account of all programs operated with or supported by Community Services Block Grant funds, including:
(a) types of programs operated by that grantee;
(b) the program outcomes;
(c) the number of persons served;
(d) the number of times service was given; and
(e) an accounting of all Community Services Block Grant funds expended by the grantee.
(3) The office shall report annually to the appropriate legislative appropriations subcommittee on the distribution and expenditure of Community Services Block Grant funds.
Section 76. Section 9-6-205 is amended to read:
9-6-205
. Board powers and duties.(1) The board may:
(a) make, amend, or repeal rules for the conduct of its business in governing the institute and the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) receive gifts, bequests, and property; and
(c) issue certificates and offer and confer prizes, certificates, and awards for works of art and achievement in the arts.
(2) The board shall make policy for the institute and for the division.
Section 77. Section 9-6-504 is amended to read:
9-6-504
. Duties of board.The board shall:
(1) allocate moneys from the state fund to the endowment fund created by a qualifying organization under Section 9-6-503;
(2) determine the eligibility of each qualifying organization to receive moneys from the state fund into the endowment fund of the qualifying organization and be the final arbiter of eligibility;
(3) determine the matching amount each qualifying organization must raise in order to qualify to receive moneys from the state fund;
(4) establish a date by which each qualifying organization must provide its matching funds;
(5) verify that matching funds have been provided by each qualifying organization by the date determined in Subsection (4); and
(6) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establish criteria by rule not otherwise prescribed in this chapter for determining the eligibility of qualifying organizations to receive moneys from the state fund.
Section 78. Section 9-6-605 is amended to read:
9-6-605
. Board -- Duties.(1) The board is the policymaking body for the office.
(2) The board shall, in consultation with the director of the office:
(a) set policies and, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules governing:
(i) the office grants program; and
(ii) the awarding of grants to assist Utah's eligible museums; and
(b) set eligibility guidelines for grants administered through the office.
Section 79. Section 9-7-213 is amended to read:
9-7-213
. Rulemaking.The division may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to implement and administer the provisions of this chapter including:
(1) standards which must be met by libraries to obtain and retain a designation as a depository library;
(2) the method by which grants are made to individual libraries, but not including appropriations made directly to any other agency or institution;
(3) standards for the certification of public librarians; and
(4) standards for the public library online access policy required in Section 9-7-215.
Section 80. Section 9-7-302 is amended to read:
9-7-302
. Public access -- Rules.(1) The public shall have access to the State Law Library.
(2) The board of control may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and not inconsistent with the provisions of this part.
Section 81. Section 9-8-203 is amended to read:
9-8-203
. Division duties.(1) The division shall:
(a) stimulate research, study, and activity in the field of Utah history and related history;
(b) maintain a specialized history library;
(c) mark and preserve historic sites, areas, and remains;
(d) collect, preserve, and administer historical records relating to the history of Utah;
(e) administer, collect, preserve, document, interpret, develop, and exhibit historical artifacts, documentary materials, and other objects relating to the history of Utah for educational and cultural purposes;
(f) edit and publish historical records;
(g) cooperate with local, state, and federal agencies and schools and museums to provide coordinated and organized activities for the collection, documentation, preservation, interpretation, and exhibition of historical artifacts related to the state;
(h) provide grants and technical assistance as necessary and appropriate; and
(i) comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
(2) The division may acquire or produce reproductions of historical artifacts and documentary materials for educational and cultural use.
(3) To promote an appreciation of Utah history and to increase heritage tourism in the state, the division shall:
(a) (i) create and maintain an inventory of all historic markers and monuments that are accessible to the public throughout the state;
(ii) enter into cooperative agreements with other groups and organizations to collect and maintain the information needed for the inventory;
(iii) encourage the use of volunteers to help collect the information and to maintain the inventory;
(iv) publicize the information in the inventory in a variety of forms and media, especially to encourage Utah citizens and tourists to visit the markers and monuments;
(v) work with public and private landowners, heritage organizations, and volunteer groups to help maintain, repair, and landscape around the markers and monuments; and
(vi) make the inventory available upon request to all other public and private history and heritage organizations, tourism organizations and businesses, and others;
(b) (i) create and maintain an inventory of all active and inactive cemeteries throughout the state;
(ii) enter into cooperative agreements with local governments and other groups and organizations to collect and maintain the information needed for the inventory;
(iii) encourage the use of volunteers to help collect the information and to maintain the inventory;
(iv) encourage cemetery owners to create and maintain geographic information systems to record burial sites and encourage volunteers to do so for inactive and small historic cemeteries;
(v) publicize the information in the inventory in a variety of forms and media, especially to encourage Utah citizens to participate in the care and upkeep of historic cemeteries;
(vi) work with public and private cemeteries, heritage organizations, genealogical groups, and volunteer groups to help maintain, repair, and landscape cemeteries, grave sites, and tombstones; and
(vii) make the inventory available upon request to all other public and private history and heritage organizations, tourism organizations and businesses, and others; and
(c) (i) create and maintain a computerized record of cemeteries and burial locations in a state-coordinated and publicly accessible information system;
(ii) gather information for the information system created and maintained under Subsection (3)(c)(i) by providing matching grants, upon approval by the board, to:
(A) municipal cemeteries;
(B) cemetery maintenance districts;
(C) endowment care cemeteries;
(D) private nonprofit cemeteries;
(E) genealogical associations; and
(F) other nonprofit groups with an interest in cemeteries; and
(iii) adopt rules, pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for granting matching funds under Subsection (3)(c)(ii) to assure that:
(A) professional standards are met; and
(B) projects are cost effective.
(4) This chapter may not be construed to authorize the division to acquire by purchase any historical artifacts, documentary materials, or specimens that are restricted from sale by federal law or the laws of any state, territory, or foreign nation.
Section 82. Section 9-8-305 is amended to read:
9-8-305
. Permit required to survey or excavate on state lands -- Public Lands Policy Coordinating Office to issue permits and make rules -- Ownership of collections and resources -- Revocation or suspension of permits -- Criminal penalties.(1) (a) Except as provided by Subsections (1)(d) and (3)(c), each principal investigator who wishes to survey or excavate on any lands owned or controlled by the state, its political subdivisions, or by the School and Institutional Trust Lands Administration shall obtain a survey or excavation permit from the Public Lands Policy Coordinating Office.
(b) A principal investigator who holds a valid permit under this section may allow other individuals to assist the principal investigator in a survey or excavation if the principal investigator ensures that all the individuals comply with the law, the rules, the permit, and the appropriate professional standards.
(c) A person, other than a principal investigator, may not survey or excavate on any lands owned or controlled by the state, its political subdivisions, or by the School and Institutional Trust Lands Administration unless the person works under the direction of a principal investigator who holds a valid permit.
(d) A permit obtained before July 1, 2006 shall continue until the permit terminates on its own terms.
(2) (a) To obtain a survey permit, a principal investigator shall:
(i) submit a permit application on a form furnished by the Public Lands Policy Coordinating Office;
(ii) except as provided in Subsection (2)(b), possess a graduate degree in anthropology, archaeology, or history;
(iii) have one year of full-time professional experience or equivalent specialized training in archaeological research, administration, or management; and
(iv) have one year of supervised field and analytical experience in Utah prehistoric or historic archaeology.
(b) In lieu of the graduate degree required by Subsection (2)(a)(ii), a principal investigator may submit evidence of training and experience equivalent to a graduate degree.
(c) Unless the permit is revoked or suspended, a survey permit is valid for the time period specified in the permit by the Public Lands Policy Coordinating Office, which may not exceed three years.
(3) (a) Except as provided by Subsection (3)(c), to obtain an excavation permit, a principal investigator shall, in addition to complying with Subsection (2)(a), submit:
(i) a research design to the Public Lands Policy Coordinating Office and the Antiquities Section that:
(A) states the questions to be addressed;
(B) states the reasons for conducting the work;
(C) defines the methods to be used;
(D) describes the analysis to be performed;
(E) outlines the expected results and the plan for reporting;
(F) evaluates expected contributions of the proposed work to archaeological or anthropological science; and
(G) estimates the cost and the time of the work that the principal investigator believes is necessary to provide the maximum amount of historic, scientific, archaeological, anthropological, and educational information; and
(ii) proof of permission from the landowner to enter the property for the purposes of the permit.
(b) An excavation permit is valid for the amount of time specified in the permit, unless the permit is revoked according to Subsection (9).
(c) The Public Lands Policy Coordinating Office may delegate to an agency the authority to issue excavation permits if the agency:
(i) requests the delegation; and
(ii) employs or has a long-term contract with a principal investigator with a valid survey permit.
(d) The Public Lands Policy Coordinating Office shall conduct an independent review of the delegation authorized by Subsection (3)(c) every three years and may revoke the delegation at any time without cause.
(4) The Public Lands Policy Coordinating Office shall:
(a) grant a survey permit to a principal investigator who meets the requirements of this section;
(b) grant an excavation permit to a principal investigator after approving, in consultation with the Antiquities Section, the research design for the project; and
(c) assemble a committee of qualified individuals to advise the Public Lands Policy Coordinating Office in its duties under this section.
(5) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Public Lands Policy Coordinating Office shall, after consulting with the Antiquities Section, make rules to:
(a) establish survey methodology;
(b) standardize report and data preparation and submission;
(c) require other permit application information that the Public Lands Policy Coordinating Office finds necessary, including proof of consultation with the appropriate Native American tribe;
(d) establish what training and experience is equivalent to a graduate degree;
(e) establish requirements for a person authorized by Subsection (1)(b) to assist the principal investigator;
(f) establish requirements for a principal investigator's employer, if applicable; and
(g) establish criteria, that if met, would allow the Public Lands Policy Coordinating Office to reinstate a suspended permit.
(6) Each principal investigator shall submit a summary report of the work for each project to the Antiquities Section in a form prescribed by a rule established under Subsection (5)(b), which shall include copies of all:
(a) site forms;
(b) data;
(c) maps;
(d) drawings;
(e) photographs; and
(f) descriptions of specimens.
(7) (a) Except as provided in Subsection (7)(c), a person may not remove from Utah any specimen, site, or portion of any site from lands owned or controlled by the state or its political subdivisions, other than school and institutional trust lands, without permission from the Antiquities Section, and prior consultation with the landowner and any other agencies managing other interests in the land.
(b) Except as provided in Subsection (7)(c), a person may not remove from Utah any specimen, site, or portion of any site from school and institutional trust lands without permission from the School and Institutional Trust Lands Administration, granted after consultation with the Antiquities Section.
(c) If a specimen, site, or portion of a site is placed in a repository or curation facility, a person may remove it by following the procedures established by the repository or curation facility.
(8) (a) Collections recovered from school and institutional trust lands are owned by the respective trust.
(b) Collections recovered from lands owned or controlled by the state or its subdivisions, other than school and institutional trust lands, are owned by the state.
(c) Within a reasonable time after the completion of fieldwork, each permit holder shall deposit all collections at the museum, a curation facility, or a repository.
(d) The repository or curation facility for collections from lands owned or controlled by the state or its subdivisions shall be designated according to the rules made under the authority of Section 53B-17-603.
(9) (a) Upon complaint by an agency, the Public Lands Policy Coordinating Office shall investigate a principal investigator and the work conducted under a permit.
(b) By following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the Public Lands Policy Coordinating Office may revoke or suspend a permit if the principal investigator fails to conduct a survey or excavation according to law, the rules enacted by the Public Lands Policy Coordinating Office, or permit provisions.
(10) (a) Any person violating this section is guilty of a class B misdemeanor.
(b) A person convicted of violating this section, or found to have violated the rules authorized by this section, shall, in addition to any other penalties imposed, forfeit all archaeological resources discovered by or through the person's efforts to the state or the respective trust.
(11) The division may enter into memoranda of agreement to issue project numbers or to retain other data for federal lands or Native American lands within the state.
Section 83. Section 9-8-309 is amended to read:
9-8-309
. Ancient human remains on nonfederal lands that are not state lands.(1) (a) After April 30, 2007, if a person knows or has reason to know that the person discovered ancient human remains on nonfederal land that is not state land:
(i) the person shall:
(A) cease activity in the area of the discovery until activity may be resumed in accordance with Subsection (1)(d);
(B) notify a local law enforcement agency in accordance with Section 76-9-704; and
(C) notify the person who owns or controls the nonfederal land, if that person is different than the person who discovers the ancient human remains; and
(ii) the person who owns or controls the nonfederal land shall:
(A) require that activity in the area of the discovery cease until activity may be resumed in accordance with Subsection (1)(d); and
(B) make a reasonable effort to protect the discovered ancient human remains before activity may be resumed in accordance with Subsection (1)(d).
(b) (i) If the local law enforcement agency believes after being notified under this Subsection (1) that a person may have discovered ancient human remains, the local law enforcement agency shall contact the Antiquities Section.
(ii) The Antiquities Section shall:
(A) within two business days of the day on which the Antiquities Section is notified by local law enforcement, notify the landowner that the Antiquities Section may excavate and retrieve the human remains with the landowner's permission; and
(B) if the landowner gives the landowner's permission, excavate the human remains by no later than:
(I) five business days from the day on which the Antiquities Section obtains the permission of the landowner under this Subsection (1); or
(II) if extraordinary circumstances exist as provided in Subsection (1)(c), within the time period designated by the director not to exceed 30 days from the day on which the Antiquities Section obtains the permission of the landowner under this Subsection (1).
(c) (i) The director may grant the Antiquities Section an extension of time for excavation and retrieval of ancient human remains not to exceed 30 days from the day on which the Antiquities Section obtains the permission of the landowner under this Subsection (1), if the director determines that extraordinary circumstances exist on the basis of objective criteria such as:
(A) the unusual scope of the ancient human remains;
(B) the complexity or difficulty of excavation or retrieval of the ancient human remains; or
(C) the landowner's concerns related to the excavation or retrieval of the ancient human remains.
(ii) If the landowner objects to the time period designated by the director, the landowner may appeal the decision to the executive director of the department in writing.
(iii) If the executive director receives an appeal from the landowner under this Subsection (1)(c), the executive director shall:
(A) decide on the appeal within two business days; and
(B) (I) uphold the decision of the director; or
(II) designate a shorter time period than the director designated for the excavation and retrieval of the ancient human remains.
(iv) An appeal under this Subsection (1)(c) may not be the cause for the delay of the excavation and retrieval of the ancient human remains.
(v) A decision and appeal under this Subsection (1)(c) is exempt from [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(d) A person that owns or controls nonfederal land that is not state land may engage in or permit others to engage in activities in the area of the discovery without violating this part or Section 76-9-704 if once notified of the discovery of ancient human remains on the nonfederal land, the person:
(i) consents to the Antiquities Section excavating and retrieving the ancient human remains; and
(ii) engages in or permits others to engage in activities in the area of the discovery only after:
(A) the day on which the Antiquities Section removes the ancient human remains from the nonfederal land; or
(B) the time period described in Subsection (1)(b)(ii)(B).
(2) A person that owns or controls nonfederal land that is not state land may not be required to pay any costs incurred by the state associated with the ancient human remains, including costs associated with the costs of the:
(a) discovery of ancient human remains;
(b) excavation or retrieval of ancient human remains; or
(c) determination of ownership or disposition of ancient human remains.
(3) For nonfederal land that is not state land, nothing in this section limits or prohibits the Antiquities Section and a person who owns or controls the nonfederal land from entering into an agreement addressing the ancient human remains that allows for different terms than those provided in this section.
(4) The ownership and control of ancient human remains that are the ancient human remains of a Native American shall be determined in accordance with Chapter 9, Part 4, Native American Grave Protection and Repatriation Act:
(a) if the ancient human remains are in possession of the state;
(b) if the ancient human remains are not known to have been discovered on lands owned, controlled, or held in trust by the federal government; and
(c) regardless of when the ancient human remains are discovered.
(5) This section:
(a) does not apply to ancient human remains that are subject to the provisions and procedures of:
(i) federal law; or
(ii) Part 4, Historic Sites; and
(b) does not modify any property rights of a person that owns or controls nonfederal land except as to the ownership of the ancient human remains.
(6) The division, Antiquities Section, or Division of Indian Affairs may not make rules that impose any requirement on a person who discovers ancient human remains or who owns or controls nonfederal land that is not state land on which ancient human remains are discovered that is not expressly provided for in this section.
Section 84. Section 9-8-405 is amended to read:
9-8-405
. Federal funds -- Agreements on standards and procedures.By following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, the division may accept and administer federal funds provided under the provisions of the National Historic Preservation Act of 1966, the Land and Water Conservation Act as amended, and subsequent legislation directed toward the encouragement of historic preservation, and to enter into those agreements on professional standards and procedures required by participation in the National Historic Preservation Act of 1966 and the National Register Office.
Section 85. Section 9-8-704 is amended to read:
9-8-704
. Division duties.The division shall, according to policy established by the board:
(1) allocate monies from the state fund to the endowment fund created by a qualifying organization under Section 9-8-703;
(2) determine the eligibility of each qualifying organization to receive monies from the state fund into the endowment fund of the qualifying organization;
(3) determine the matching amount each qualifying organization must raise in order to qualify to receive monies from the state fund;
(4) establish a date by which each qualifying organization must provide its matching funds;
(5) verify that matching funds have been provided by each qualifying organization by the date determined in Subsection (4); and
(6) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establish criteria by rule not otherwise prescribed in this chapter for determining the eligibility of qualifying organizations to receive monies from the state fund.
Section 86. Section 9-9-104 is amended to read:
9-9-104
. Duties and powers.(1) The division shall:
(a) have all of the functions, powers, duties, rights, and responsibilities granted to it by this chapter;
(b) staff those committees or boards as specified in this chapter; and
(c) in accordance with policies set by state government, coordinate relations between:
(i) the state;
(ii) tribal governments;
(iii) other Indian groups; and
(iv) federal agencies.
(2) The division may:
(a) contract with public and private entities to provide services or facilities;
(b) acquire and hold funds or other property for the administration of the programs outlined in this chapter;
(c) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that are necessary to carry out the duties of the division;
(d) accept gifts, grants, devises, and property, in cash or in kind, for the benefit of Indians; and
(e) apply or dispose of those gifts, grants, devises, and property received under Subsection (2)(d) for the use and benefit of Indians within the state.
Section 87. Section 9-10-105 is amended to read:
9-10-105
. Powers.(1) The board may:
(a) appoint a hearing examiner or administrative law judge with authority to conduct any hearings, make determinations, and enter appropriate findings of facts, conclusions of law, and orders under authority of the Interlocal Cooperation Act; and
(b) make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, if necessary to perform its responsibilities.
(2) The board shall:
(a) be subject to the procedures and requirements under Title 52, Chapter 4, Open and Public Meetings Act; and
(b) be subject to the procedures and requirements under Title 51, Chapter 7, State Money Management Act.
Section 88. Section 9-11-102 is amended to read:
9-11-102
. Definitions.As used in this chapter:
(1) "Board" means the Navajo Revitalization Fund Board.
(2) "Capital projects" means expenditures for land, improvements on the land, and equipment intended to have long-term beneficial use.
(3) "Division" means the Division of Housing and Community Development.
(4) "Eligible entities" means:
(a) the Navajo Nation;
(b) a department or division of the Navajo Nation;
(c) a Utah Navajo Chapter, as defined in Section [63-88-101] 51-9-501;
(d) the Navajo Utah Commission;
(e) an agency of the state or a political subdivision of the state;
(f) the Navajo Trust Fund established under [Title 63, Chapter 88] Title 51, Chapter 9, Part 5, Navajo Trust Fund; or
(g) a nonprofit corporation.
(5) "Navajo Utah Commission" means the commission created by Resolution IGRJN-134-92 of the Intergovernmental Relations Committee of the Navajo Nation Council.
(6) "Revitalization fund" or "fund" means the Navajo Revitalization Fund.
Section 89. Section 9-11-105 is amended to read:
9-11-105
. Navajo Revitalization Fund Board created -- Members -- Terms -- Chair -- Expenses.(1) There is created within the division the Navajo Revitalization Board composed of five members as follows:
(a) the governor or the governor’s designee;
(b) the two members of the San Juan County commission whose districts include portions of the Navajo Reservation;
(c) the chair of the Navajo Utah Commission or a member of the commission designated by the chair; and
(d) the chair of the Utah Dineh Committee, as created in Section [63-88-107] 51-9-507, or a member of the committee designated by the chair.
(2) The terms of office for the members of the board shall run concurrently with the terms of office for the governor, county commissioners, member of the Navajo Utah Commission, and member of the Utah Dineh Committee.
(3) The governor, or the governor’s designee, shall be the chair of the board and the chair is responsible to call necessary meetings.
(4) (a) (i) Members who are not government employees of the state or local government shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(d) The per diem and expenses permitted under this Subsection (4) may be included as costs of administration of the fund.
(5) Four board members are a quorum.
(6) Any board decisions related to monies in or disbursed from the fund requires the affirmative vote of each member of the board present at a meeting when a quorum is present.
Section 90. Section 9-11-106 is amended to read:
9-11-106
. Powers -- Duties.(1) The board shall:
(a) direct the division regarding grants and loans from the revitalization fund to eligible entities to serve persons that are or may be socially or economically impacted, directly or indirectly, by mineral resource development;
(b) establish procedures for application for an award of grants and loans including eligibility criteria;
(c) coordinate projects and programs with other projects and programs funded by federal, state, and local government entities;
(d) determine the order in which projects will be funded; and
(e) be subject to the procedures and requirements under Title 52, Chapter 4, Open and Public Meetings Act.
(2) The board may:
(a) qualify for, accept, and administer grants, gifts, loans, or other funds from the federal government and from other sources, public or private; and
(b) make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, if necessary to perform its responsibilities.
Section 91. Section 9-11-107 is amended to read:
9-11-107
. Revitalization fund administered by board -- Eligibility for assistance -- Review by board -- Restrictions on loans and grants -- Division to distribute monies.(1) (a) If an eligible entity wishes to receive a loan or grant from the board, the eligible entity shall apply to the board. The application shall contain the information required by the board.
(b) The board shall review each application for a loan or grant before approving the loan or grant.
(c) The board may approve loan or grant applications subject to the applicant's compliance with certain conditions established by the board.
(2) In determining whether an eligible entity may receive a loan or grant, the board shall give priority to:
(a) capital projects and infrastructure, including electrical power, water, and other one time need projects;
(b) housing projects that consist of:
(i) the purchase of new housing;
(ii) the construction of new housing; or
(iii) a significant remodeling of existing housing; or
(c) matching educational endowments that:
(i) promote economic development within the Utah portion of the Navajo Reservation;
(ii) promote the preservation of Navajo culture, history, and language; or
(iii) support postsecondary educational opportunities for Navajo students enrolled in courses or programs taught within the Utah portion of the Navajo Reservation.
(3) A loan or grant issued under this chapter may not fund:
(a) start-up or operational costs of private business ventures;
(b) general operating budgets of the eligible entities; or
(c) a project or program that will operate or be located outside of the Navajo Reservation in San Juan County, Utah, except for educational endowments approved by the board under Subsection (2)(c).
(4) (a) The board may not approve a loan unless the loan:
(i) specifies the terms for repayment; and
(ii) is secured by proceeds from a general obligation, special assessment, or revenue bond, note, or other obligation.
(b) Any loan repayment or interest on a loan issued under this chapter shall be deposited into the fund.
(5) The board may not approve a loan or grant unless the loan or grant provides for matching monies or in-kind services from:
(a) the Navajo Nation;
(b) the Navajo Trust Fund;
(c) San Juan County;
(d) the state;
(e) the federal government;
(f) a Utah Navajo Chapter, as defined in Section [63-88-101] 51-9-501; or
(g) other private or public organization.
(6) The division shall distribute loan and grant monies:
(a) if the loan or grant is approved by the board;
(b) in accordance with the instructions of the board, except that the board may not instruct that monies be distributed in a manner:
(i) inconsistent with this chapter; or
(ii) in violation of rules and procedures of the department; and
(c) in the case of a loan, in accordance with Section 63A-3-205.
Section 92. Section 9-12-103 is amended to read:
9-12-103
. Eligibility criteria.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules establishing eligibility criteria for recipients of assistance under this chapter. A recipient of assistance under this chapter must demonstrate:
(1) that the recipient's family, household, or individual income is 150% of the federal poverty level or less;
(2) that the recipient is responsible for paying the recipient's home energy costs; and
(3) compliance with any rules established by the department under this section.
Section 93. Section 9-12-105 is amended to read:
9-12-105
. Payment method.Direct payments for home energy costs shall be made jointly to the responsible householder and to the vendor of energy services to whom the family or individual served owes a payment except in certain cases, as established by rule by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, where payments may be made directly to the responsible householder.
Section 94. Section 10-1-306 is amended to read:
10-1-306
. Rules for delivered value and point of sale.(1) The delivered value of taxable energy under this part shall be established pursuant to rules made by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) The rules made by the commission under Subsection (1):
(a) shall provide that an arm’s length sales price for taxable energy sold or used by a taxpayer in the municipality is the delivered value, unless the sales price does not include some portion of the taxable energy or component of delivered value;
(b) shall establish one or more default methods for determining the delivered value for each customer class one time per calendar year on or before January 31 for taxable energy when the commission determines that the sales price does not accurately reflect delivered value; and
(c) shall provide that for purposes of determining the point of sale or use of taxable energy the location of the meter is normally the point of sale or use unless the taxpayer demonstrates that the use is not in a municipality imposing the municipal energy sales and use tax.
(3) In establishing a default method under Subsection (2)(b), the commission:
(a) shall take into account quantity discounts and other reductions or increases in value that are generally available in the marketplace for various grades or types of property and classes of services; and
(b) may consider:
(i) generally applicable tariffs for various classes of utility services approved by the Public Service Commission or other governmental entity;
(ii) posted prices;
(iii) spot-market prices;
(iv) trade publications;
(v) market data; and
(vi) other information and data prescribed by the commission.
Section 95. Section 10-1-308 is amended to read:
10-1-308
. Report of tax collections -- Allocation when location of taxpayer cannot be accurately determined.(1) All municipal energy sales and use taxes collected under this part shall be reported to the commission on forms that accurately identify the municipality where the taxpayer is located.
(2) The commission shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to proportionally distribute all taxes collected if the municipality where the taxpayer is located cannot be accurately determined.
Section 96. Section 10-1-405 is amended to read:
10-1-405
. Collection of taxes by commission -- Uniform interlocal agreement -- Rulemaking authority -- Charge for services.(1) Subject to the other provisions of this section, the commission shall collect, enforce, and administer any municipal telecommunications license tax imposed under this part pursuant to:
(a) the same procedures used in the administration, collection, and enforcement of the state sales and use tax under:
(i) Title 59, Chapter 1, General Taxation Policies; and
(ii) Title 59, Chapter 12, Part 1, Tax Collection:
(A) except for:
(I) Subsection 59-12-103(2)(h);
(II) Section 59-12-104;
(III) Section 59-12-104.1;
(IV) Section 59-12-104.2; and
(V) Section 59-12-107.1; and
(B) except that for purposes of Section 59-12-110, the term "taxpayer" may include a customer from whom a municipal telecommunications license tax is recovered in accordance with Subsection 10-1-403(2); and
(b) a uniform interlocal agreement:
(i) between:
(A) the municipality that imposes the municipal telecommunications license tax; and
(B) the commission;
(ii) that is executed under Title 11, Chapter 13, Interlocal Cooperation Act;
(iii) that complies with Subsection (2)(a); and
(iv) that is developed by rule in accordance with Subsection (2)(b).
(2) (a) The uniform interlocal agreement described in Subsection (1) shall provide that the commission shall:
(i) transmit monies collected under this part:
(A) monthly; and
(B) by electronic funds transfer by the commission to the municipality;
(ii) conduct audits of the municipal telecommunications license tax;
(iii) charge the municipality for the commission's services under this section in an amount:
(A) sufficient to reimburse the commission for the cost to the commission in rendering the services; and
(B) that may not exceed an amount equal to 1.5% of the municipal telecommunications license tax imposed by the ordinance of the municipality; and
(iv) collect, enforce, and administer the municipal telecommunications license tax authorized under this part pursuant to the same procedures used in the administration, collection, and enforcement of the state sales and use tax as provided in Subsection (1)(a).
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall develop a uniform interlocal agreement that meets the requirements of this section.
(3) The administrative fee charged under Subsection (2)(a) shall be:
(a) deposited in the Sales and Use Tax Administrative Fees Account; and
(b) used for administration of municipal telecommunications license taxes under this part.
(4) If, on July 1, 2007, a municipality has in effect an ordinance that levies a municipal telecommunications license tax under this part at a rate that exceeds 3.5%:
(a) except as provided in Subsection (4)(b), beginning on July 1, 2007, the commission shall collect the municipal telecommunications license tax:
(i) within the municipality;
(ii) at a rate of 3.5%; and
(iii) from a telecommunications provider required to pay the municipal telecommunications license tax on or after July 1, 2007; and
(b) the commission shall collect a municipal telecommunications license tax within the municipality at the rate imposed by the municipality if:
(i) after July 1, 2007, the municipality has in effect an ordinance that levies a municipal telecommunications license tax under this part at a rate of up to 3.5%;
(ii) the municipality meets the requirements of Subsection 10-1-403(3)(b) in changing the rate of the municipal telecommunications license tax; and
(iii) a telecommunications provider is required to pay the municipal telecommunications license tax on or after the day on which the ordinance described in Subsection (4)(b)(ii) takes effect.
Section 97. Section 10-3-208 is amended to read:
10-3-208
. Campaign finance statement in municipal election.(1) As used in this section:
(a) "Reporting date" means:
(i) ten days before a municipal general election, for a campaign finance statement required to be filed no later than seven days before a municipal general election; and
(ii) the day of filing, for a campaign finance statement required to be filed no later than 30 days after a municipal primary or general election.
(b) "Reporting limit" means:
(i) $50; or
(ii) an amount lower than $50 that is specified in an ordinance of the municipality.
(2) (a) (i) Each candidate for municipal office who is not eliminated at a municipal primary election shall file with the municipal clerk or recorder a campaign finance statement:
(A) no later than seven days before the date of the municipal general election; and
(B) no later than 30 days after the date of the municipal general election.
(ii) Each candidate for municipal office who is eliminated at a municipal primary election shall file with the municipal clerk or recorder a campaign finance statement no later than 30 days after the date of the municipal primary election.
(b) Each campaign finance statement under Subsection (2)(a) shall:
(i) except as provided in Subsection (2)(b)(ii):
(A) report all of the candidate's itemized and total:
(I) campaign contributions, including in-kind and other nonmonetary contributions, received before the close of the reporting date; and
(II) campaign expenditures made through the close of the reporting date; and
(B) identify:
(I) for each contribution that exceeds the reporting limit, the amount of the contribution and the name of the donor;
(II) the aggregate total of all contributions that individually do not exceed the reporting limit; and
(III) for each campaign expenditure, the amount of the expenditure and the name of the recipient of the expenditure; or
(ii) report the total amount of all campaign contributions and expenditures if the candidate receives $500 or less in campaign contributions and spends $500 or less on the candidate's campaign.
(3) (a) A municipality may, by ordinance:
(i) provide a reporting limit lower than $50;
(ii) require greater disclosure of campaign contributions and expenditures than is required in this section; and
(iii) impose additional penalties on candidates who fail to comply with the applicable requirements beyond those imposed by this section.
(b) A candidate for municipal office is subject to the provisions of this section and not the provisions of an ordinance adopted by the municipality under Subsection (3)(a) if:
(i) the municipal ordinance establishes requirements or penalties that differ from those established in this section; and
(ii) the municipal clerk or recorder fails to notify the candidate of the provisions of the ordinance as required in Subsection (4).
(4) Each municipal clerk or recorder shall, at the time the candidate for municipal office files a declaration of candidacy, and again 14 days before each municipal general election, notify the candidate in writing of:
(a) the provisions of statute or municipal ordinance governing the disclosure of campaign contributions and expenditures;
(b) the dates when the candidate's campaign finance statement is required to be filed; and
(c) the penalties that apply for failure to file a timely campaign finance statement, including the statutory provision that requires removal of the candidate's name from the ballot for failure to file the required campaign finance statement when required.
(5) Notwithstanding any provision of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the municipal clerk or recorder shall make each campaign finance statement filed by a candidate available for public inspection and copying no later than one business day after the statement is filed.
(6) (a) If a candidate fails to file a campaign finance statement before the municipal general election by the deadline specified in Subsection (2)(a)(i)(A), the municipal clerk or recorder shall inform the appropriate election official who:
(i) shall:
(A) if practicable, remove the candidate's name from the ballot by blacking out the candidate's name before the ballots are delivered to voters; or
(B) if removing the candidate's name from the ballot is not practicable, inform the voters by any practicable method that the candidate has been disqualified and that votes cast for the candidate will not be counted; and
(ii) may not count any votes for that candidate.
(b) Notwithstanding Subsection (6)(a), a candidate who files a campaign finance statement seven days before a municipal general election is not disqualified if:
(i) the statement details accurately and completely the information required under Subsection (2)(b), except for inadvertent omissions or insignificant errors or inaccuracies; and
(ii) the omissions, errors, or inaccuracies are corrected in an amended report or in the next scheduled report.
(7) A campaign finance statement required under this section is considered filed if it is received in the municipal clerk or recorder's office by 5 p.m. on the date that is it due.
(8) (a) A private party in interest may bring a civil action in district court to enforce the provisions of this section or an ordinance adopted under this section.
(b) In a civil action under Subsection (8)(a), the court may award costs and attorney's fees to the prevailing party.
Section 98. Section 10-3-1303 is amended to read:
10-3-1303
. Definitions.As used in this part:
(1) "Appointed officer" means any person appointed to any statutory office or position or any other person appointed to any position of employment with a city or with a community development and renewal agency under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies. Appointed officers include, but are not limited to, persons serving on special, regular, or full-time committees, agencies, or boards whether or not such persons are compensated for their services. The use of the word "officer" in this part is not intended to make appointed persons or employees "officers" of the municipality.
(2) "Assist" means to act, or offer or agree to act, in such a way as to help, represent, aid, advise, furnish information to, or otherwise provide assistance to a person or business entity, believing that such action is of help, aid, advice, or assistance to such person or business entity and with the intent to assist such person or business entity.
(3) "Business entity" means a sole proprietorship, partnership, association, joint venture, corporation, firm, trust, foundation, or other organization or entity used in carrying on a business.
(4) "Compensation" means anything of economic value, however designated, which is paid, loaned, granted, given, donated, or transferred to any person or business entity by anyone other than the governmental employer for or in consideration of personal services, materials, property, or any other thing whatsoever.
(5) "Elected officer" means any person elected or appointed to the office of mayor, commissioner, or council member.
(6) "Improper disclosure" means disclosure of private, controlled, or protected information to any person who does not have both the right and the need to receive the information.
(7) "Municipal employee" means a person who is not an elected or appointed officer who is employed on a full or part-time basis by a municipality or by a community development and renewal agency under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies.
(8) "Private, controlled, or protected information" means information classified as private, controlled, or protected under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act or other applicable provision of law.
(9) "Substantial interest" means the ownership, either legally or equitably, by an individual, his spouse, or his minor children, of at least 10% of the outstanding shares of a corporation or 10% interest in any other business entity.
Section 99. Section 10-3-1304 is amended to read:
10-3-1304
. Use of office for personal benefit prohibited.(1) As used in this section, "economic benefit tantamount to a gift" includes:
(a) a loan at an interest rate that is substantially lower than the commercial rate then currently prevalent for similar loans; and
(b) compensation received for private services rendered at a rate substantially exceeding the fair market value of the services.
(2) It is an offense for an elected or appointed officer or municipal employee, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to:
(a) disclose or improperly use private, controlled, or protected information acquired by reason of his official position or in the course of official duties in order to further substantially the officer's or employee's personal economic interest or to secure special privileges or exemptions for himself or others;
(b) use or attempt to use his official position to:
(i) further substantially the officer's or employee's personal economic interest; or
(ii) secure special privileges for himself or others; or
(c) knowingly receive, accept, take, seek, or solicit, directly or indirectly, for himself or another a gift of substantial value or a substantial economic benefit tantamount to a gift that:
(i) would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; or
(ii) the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken.
(3) Subsection (2)(c) does not apply to:
(a) an occasional nonpecuniary gift having a value of less than $50;
(b) an award publicly presented in recognition of public services;
(c) any bona fide loan made in the ordinary course of business; or
(d) a political campaign contribution.
Section 100. Section 10-3-1305 is amended to read:
10-3-1305
. Compensation for assistance in transaction involving municipality -- Public disclosure and filing required.(1) As used in this section, "municipal body" means any public board, commission, committee, or other public group organized to make public policy decisions or to advise persons who make public policy decisions.
(2) It is an offense for an elected officer, or appointed officer, who is a member of a public body, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to receive or agree to receive compensation for assisting any person or business entity in any transaction involving the municipality in which he is an officer unless he:
(a) files with the mayor a sworn statement giving the information required by this section; and
(b) discloses the information required by Subsection (5) in an open meeting to the members of the body of which he is a member immediately before the discussion.
(3) It is an offense for an appointed officer who is not a member of a public body or a municipal employee to receive or agree to receive compensation for assisting any person or business entity in any transaction involving the municipality by which he is employed unless the officer or employee:
(a) files with the mayor a sworn statement giving the information required by this section; and
(b) discloses the information required by Subsection (5) to:
(i) his immediate supervisor; and
(ii) any other municipal officer or employee who may rely upon the employee's representations in evaluating or approving the transaction.
(4) (a) The officer or employee shall file the statement required to be filed by this section ten days before the date of any agreement between the elected or appointed officer or municipal employee and the person or business entity being assisted or ten days before the receipt of compensation by the officer or employee, whichever is earlier.
(b) The statement is public information and shall be available for examination by the public.
(5) The statement and disclosure shall contain:
(a) the name and address of the officer or municipal employee;
(b) the name and address of the person or business entity being or to be assisted or in which the appointed or elected official or municipal employee has a substantial interest; and
(c) a brief description of the transaction as to which service is rendered or is to be rendered and of the nature of the service performed or to be performed.
Section 101. Section 10-7-86 is amended to read:
10-7-86
. Municipality may adopt Utah Procurement Code -- Hiring of professional architect, engineer, or surveyor.(1) The governing body of any municipality may adopt any or all of the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, or the rules promulgated pursuant to that code.
(2) Notwithstanding Subsection (1), the governing body of each municipality that engages the services of a professional architect, engineer, or surveyor and considers more than one such professional for the engagement:
(a) shall consider, as a minimum, in the selection process:
(i) the qualifications, experience, and background of each firm submitting a proposal;
(ii) the specific individuals assigned to the project and the time commitments of each to the project; and
(iii) the project schedule and the approach to the project that the firm will take; and
(b) may engage the services of a professional architect, engineer, or surveyor based on the criteria under Subsection (2)(a) rather than solely on lowest cost.
Section 102. Section 10-7-87 is amended to read:
10-7-87
. Procurement -- Use of recycled goods.The procurement officer or other person responsible for purchasing supplies for each municipality shall:
(1) maintain for reference a copy of the current listing of recycled items available on state contracts as issued by the chief procurement officer under Section [63-56-204] 63G-6-204; and
(2) give recycled items consideration when inviting bids and purchasing supplies, in compliance with Section 11-37-101.
Section 103. Section 10-8-2 is amended to read:
10-8-2
. Appropriations -- Acquisition and disposal of property -- Municipal authority -- Corporate purpose -- Procedure -- Notice of intent to acquire real property.(1) (a) A municipal legislative body may:
(i) appropriate money for corporate purposes only;
(ii) provide for payment of debts and expenses of the corporation;
(iii) subject to Subsections (4) and (5), purchase, receive, hold, sell, lease, convey, and dispose of real and personal property for the benefit of the municipality, whether the property is within or without the municipality's corporate boundaries, if the action is in the public interest and complies with other law;
(iv) improve, protect, and do any other thing in relation to this property that an individual could do; and
(v) subject to Subsection (2) and after first holding a public hearing, authorize municipal services or other nonmonetary assistance to be provided to or waive fees required to be paid by a nonprofit entity, whether or not the municipality receives consideration in return.
(b) A municipality may:
(i) furnish all necessary local public services within the municipality;
(ii) purchase, hire, construct, own, maintain and operate, or lease public utilities located and operating within and operated by the municipality; and
(iii) subject to Subsection (1)(c), acquire by eminent domain, or otherwise, property located inside or outside the corporate limits of the municipality and necessary for any of the purposes stated in Subsections (1)(b)(i) and (ii), subject to restrictions imposed by Title 78, Chapter 34, Eminent Domain, and general law for the protection of other communities.
(c) Each municipality that intends to acquire property by eminent domain under Subsection (1)(b) shall, upon the first contact with the owner of the property sought to be acquired, deliver to the owner a copy of a booklet or other materials provided by the Office of the Property Rights Ombudsman, created under Section 13-43-201, dealing with the property owner's rights in an eminent domain proceeding.
(d) Subsection (1)(b) may not be construed to diminish any other authority a municipality may claim to have under the law to acquire by eminent domain property located inside or outside the municipality.
(2) (a) Services or assistance provided pursuant to Subsection (1)(a)(v) is not subject to the provisions of Subsection (3).
(b) The total amount of services or other nonmonetary assistance provided or fees waived under Subsection (1)(a)(v) in any given fiscal year may not exceed 1% of the municipality's budget for that fiscal year.
(3) It is considered a corporate purpose to appropriate money for any purpose that, in the judgment of the municipal legislative body, provides for the safety, health, prosperity, moral well-being, peace, order, comfort, or convenience of the inhabitants of the municipality subject to the following:
(a) The net value received for any money appropriated shall be measured on a project-by-project basis over the life of the project.
(b) The criteria for a determination under this Subsection (3) shall be established by the municipality's legislative body. A determination of value received, made by the municipality's legislative body, shall be presumed valid unless it can be shown that the determination was arbitrary, capricious, or illegal.
(c) The municipality may consider intangible benefits received by the municipality in determining net value received.
(d) Prior to the municipal legislative body making any decision to appropriate any funds for a corporate purpose under this section, a public hearing shall be held. Notice of the hearing shall be published in a newspaper of general circulation at least 14 days prior to the date of the hearing, or, if there is no newspaper of general circulation, by posting notice in at least three conspicuous places within the municipality for the same time period.
(e) A study shall be performed before notice of the public hearing is given and shall be made available at the municipality for review by interested parties at least 14 days immediately prior to the public hearing, setting forth an analysis and demonstrating the purpose for the appropriation. In making the study, the following factors shall be considered:
(i) what identified benefit the municipality will receive in return for any money or resources appropriated;
(ii) the municipality's purpose for the appropriation, including an analysis of the way the appropriation will be used to enhance the safety, health, prosperity, moral well-being, peace, order, comfort, or convenience of the inhabitants of the municipality; and
(iii) whether the appropriation is necessary and appropriate to accomplish the reasonable goals and objectives of the municipality in the area of economic development, job creation, affordable housing, blight elimination, job preservation, the preservation of historic structures and property, and any other public purpose.
(f) (i) An appeal may be taken from a final decision of the municipal legislative body, to make an appropriation.
(ii) The appeal shall be filed within 30 days after the date of that decision, to the district court.
(iii) Any appeal shall be based on the record of the proceedings before the legislative body.
(iv) A decision of the municipal legislative body shall be presumed to be valid unless the appealing party shows that the decision was arbitrary, capricious, or illegal.
(g) The provisions of this Subsection (3) apply only to those appropriations made after May 6, 2002.
(h) This section applies only to appropriations not otherwise approved pursuant to Title 10, Chapter 5, Uniform Fiscal Procedures Act for Utah Towns, or Title 10, Chapter 6, Uniform Fiscal Procedures Act for Utah Cities.
(4) (a) Before a municipality may dispose of a significant parcel of real property, the municipality shall:
(i) provide reasonable notice of the proposed disposition at least 14 days before the opportunity for public comment under Subsection (4)(a)(ii); and
(ii) allow an opportunity for public comment on the proposed disposition.
(b) Each municipality shall, by ordinance, define what constitutes:
(i) a significant parcel of real property for purposes of Subsection (4)(a); and
(ii) reasonable notice for purposes of Subsection (4)(a)(i).
(5) (a) Except as provided in Subsection (5)(d), each municipality intending to acquire real property for the purpose of expanding the municipality's infrastructure or other facilities used for providing services that the municipality offers or intends to offer shall provide written notice, as provided in this Subsection (5), of its intent to acquire the property if:
(i) the property is located:
(A) outside the boundaries of the municipality; and
(B) in a county of the first or second class; and
(ii) the intended use of the property is contrary to:
(A) the anticipated use of the property under the general plan of the county in whose unincorporated area or the municipality in whose boundaries the property is located; or
(B) the property's current zoning designation.
(b) Each notice under Subsection (5)(a) shall:
(i) indicate that the municipality intends to acquire real property;
(ii) identify the real property; and
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries the property is located; and
(B) each affected entity.
(c) A notice under this Subsection (5) is a protected record as provided in Subsection [63-2-304] 63G-2-305(7).
(d) (i) The notice requirement of Subsection (5)(a) does not apply if the municipality previously provided notice under Section 10-9a-203 identifying the general location within the municipality or unincorporated part of the county where the property to be acquired is located.
(ii) If a municipality is not required to comply with the notice requirement of Subsection (5)(a) because of application of Subsection (5)(d)(i), the municipality shall provide the notice specified in Subsection (5)(a) as soon as practicable after its acquisition of the real property.
Section 104. Section 10-8-58.5 is amended to read:
10-8-58.5
. Contracting for management, maintenance, operation, or construction of jails.(1) (a) The governing body of a city or town may contract with private contractors for management, maintenance, operation, and construction of city jails.
(b) The governing body may include a provision in the contract that requires that any jail facility meet any federal, state, or local standards for the construction of jails.
(2) If the governing body contracts only for the management, maintenance, or operation of a jail, the governing body shall include provisions in the contract that:
(a) require the private contractor to post a performance bond in the amount set by the governing body;
(b) establish training standards that must be met by jail personnel;
(c) require the private contractor to provide and fund training for jail personnel so that the personnel meet the standards established in the contract and any other federal, state, or local standards for the operation of jails and the treatment of jail prisoners;
(d) require the private contractor to indemnify the city or town for errors, omissions, defalcations, and other activities committed by the private contractor that result in liability to the city or town;
(e) require the private contractor to show evidence of liability insurance protecting the city or town and its officers, employees, and agents from liability arising from the construction, operation, or maintenance of the jail, in an amount not less than those specified in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah;
(f) require the private contractor to:
(i) receive all prisoners committed to the jail by competent authority; and
(ii) provide them with necessary food, clothing, and bedding in the manner prescribed by the governing body; and
(g) prohibit the use of inmates by the private contractor for private business purposes of any kind.
(3) A contractual provision requiring the private contractor to maintain liability insurance in an amount not less than the liability limits established by [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, may not be construed as waiving the limitation on damages recoverable from a governmental entity or its employees established by that chapter.
Section 105. Section 10-9a-203 is amended to read:
10-9a-203
. Notice of intent to prepare a general plan or comprehensive general plan amendments in certain municipalities.(1) Before preparing a proposed general plan or a comprehensive general plan amendment, each municipality within a county of the first or second class shall provide ten calendar days notice of its intent to prepare a proposed general plan or a comprehensive general plan amendment to:
(a) each affected entity;
(b) the Automated Geographic Reference Center created in Section 63F-1-506;
(c) the association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which the municipality is a member; and
(d) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202.
(2) Each notice under Subsection (1) shall:
(a) indicate that the municipality intends to prepare a general plan or a comprehensive general plan amendment, as the case may be;
(b) describe or provide a map of the geographic area that will be affected by the general plan or amendment;
(c) be sent by mail, e-mail, or other effective means;
(d) invite the affected entities to provide information for the municipality to consider in the process of preparing, adopting, and implementing a general plan or amendment concerning:
(i) impacts that the use of land proposed in the proposed general plan or amendment may have; and
(ii) uses of land within the municipality that the affected entity is considering that may conflict with the proposed general plan or amendment; and
(e) include the address of an Internet website, if the municipality has one, and the name and telephone number of a person where more information can be obtained concerning the municipality's proposed general plan or amendment.
Section 106. Section 10-9a-402 is amended to read:
10-9a-402
. Information and technical assistance from the state.Each state official, department, and agency shall:
(1) promptly deliver any data and information requested by a municipality unless the disclosure is prohibited by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(2) furnish any other technical assistance and advice that they have available to the municipality without additional cost to the municipality.
Section 107. Section 10-18-302 is amended to read:
10-18-302
. Bonding authority.(1) In accordance with Title 11, Chapter 14, Local Government Bonding Act, the legislative body of a municipality may by resolution determine to issue one or more revenue bonds or general obligation bonds to finance the capital costs for facilities necessary to provide to subscribers:
(a) a cable television service; or
(b) a public telecommunications service.
(2) The resolution described in Subsection (1) shall:
(a) describe the purpose for which the indebtedness is to be created; and
(b) specify the dollar amount of the one or more bonds proposed to be issued.
(3) (a) A revenue bond issued under this section shall be secured and paid for:
(i) from the revenues generated by the municipality from providing:
(A) cable television services with respect to revenue bonds issued to finance facilities for the municipality's cable television services; and
(B) public telecommunications services with respect to revenue bonds issued to finance facilities for the municipality's public telecommunications services; and
(ii) notwithstanding Subsection (3)(b) and Subsection 10-18-303(3)(a), from revenues generated under Title 59, Chapter 12, Sales and Use Tax Act, if:
(A) notwithstanding Subsection 11-14-201(3) and except as provided in Subsections (4) and (5), the revenue bond is approved by the registered voters in an election held:
(I) except as provided in Subsection (3)(a)(ii)(A)(II), pursuant to the provisions of Title 11, Chapter 14, Local Government Bonding Act, that govern bond elections; and
(II) notwithstanding Subsection 11-14-203(2), at a regular general election;
(B) the revenues described in this Subsection (3)(a)(ii) are pledged as security for the revenue bond; and
(C) the municipality or municipalities annually appropriate the revenues described in this Subsection (3)(a)(ii) to secure and pay the revenue bond issued under this section.
(b) Except as provided in Subsection (3)(a)(ii), a municipality may not pay the origination, financing, or other carrying costs associated with the one or more revenue bonds issued under this section from the general funds or other enterprise funds of the municipality.
(4) (a) As used in this Subsection (4), "municipal entity" means an entity created pursuant to an agreement:
(i) under Title 11, Chapter 13, Interlocal Cooperation Act; and
(ii) to which a municipality is a party.
(b) The requirements of Subsection (3)(a)(ii)(A) do not apply to a municipality or municipal entity that issues revenue bonds, or to a municipality that is a member of a municipal entity that issues revenue bonds, if:
(i) on or before March 2, 2004, the municipality that is issuing revenue bonds or that is a member of a municipal entity that is issuing revenue bonds has published the first notice described in Subsection (4)(b)(iii);
(ii) on or before April 15, 2004, the municipality that is issuing revenue bonds or that is a member of a municipal entity that is issuing revenue bonds makes the decision to pledge the revenues described in Subsection (3)(a)(ii) as security for the revenue bonds described in this Subsection (4)(b)(ii);
(iii) the municipality that is issuing the revenue bonds or the municipality that is a member of the municipal entity that is issuing the revenue bonds has:
(A) held a public hearing for which public notice was given by publication of the notice in a newspaper published in the municipality or in a newspaper of general circulation within the municipality for two consecutive weeks, with the first publication being not less than 14 days before the public hearing; and
(B) the notice identifies:
(I) that the notice is given pursuant to Title 11, Chapter 14, Local Government Bonding Act;
(II) the purpose for the bonds to be issued;
(III) the maximum amount of the revenues described in Subsection (3)(a)(ii) that will be pledged in any fiscal year;
(IV) the maximum number of years that the pledge will be in effect; and
(V) the time, place, and location for the public hearing;
(iv) the municipal entity that issues revenue bonds:
(A) adopts a final financing plan; and
(B) in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, makes available to the public at the time the municipal entity adopts the final financing plan:
(I) the final financing plan; and
(II) all contracts entered into by the municipal entity, except as protected by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act;
(v) any municipality that is a member of a municipal entity described in Subsection (4)(b)(iv):
(A) not less than 30 calendar days after the municipal entity complies with Subsection (4)(b)(iv)(B), holds a final public hearing;
(B) provides notice, at the time the municipality schedules the final public hearing, to any person who has provided to the municipality a written request for notice; and
(C) makes all reasonable efforts to provide fair opportunity for oral testimony by all interested parties; and
(vi) except with respect to a municipality that issued bonds prior to March 1, 2004, not more than 50% of the average annual debt service of all revenue bonds described in this section to provide service throughout the municipality or municipal entity may be paid from the revenues described in Subsection (3)(a)(ii).
(5) On or after July 1, 2007, the requirements of Subsection (3)(a)(ii)(A) do not apply to a municipality that issues revenue bonds if:
(a) the municipality that is issuing the revenue bonds has:
(i) held a public hearing for which public notice was given by publication of the notice in a newspaper published in the municipality or in a newspaper of general circulation within the municipality for two consecutive weeks, with the first publication being not less than 14 days before the public hearing; and
(ii) the notice identifies:
(A) that the notice is given pursuant to Title 11, Chapter 14, Local Government Bonding Act;
(B) the purpose for the bonds to be issued;
(C) the maximum amount of the revenues described in Subsection (3)(a)(ii) that will be pledged in any fiscal year;
(D) the maximum number of years that the pledge will be in effect; and
(E) the time, place, and location for the public hearing; and
(b) except with respect to a municipality that issued bonds prior to March 1, 2004, not more than 50% of the average annual debt service of all revenue bonds described in this section to provide service throughout the municipality or municipal entity may be paid from the revenues described in Subsection (3)(a)(ii).
(6) A municipality that issues bonds pursuant to this section may not make or grant any undue or unreasonable preference or advantage to itself or to any private provider of:
(a) cable television services; or
(b) public telecommunications services.
Section 108. Section 11-13-222 is amended to read:
11-13-222
. Officers and employees performing services under agreements.(1) Each officer and employee performing services for two or more public agencies under an agreement under this chapter shall be considered to be:
(a) an officer or employee of the public agency employing the officer or employee's services even though the officer or employee performs those functions outside of the territorial limits of any one of the contracting public agencies; and
(b) an officer or employee of the public agencies under the provisions of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(2) Unless otherwise provided in an agreement that creates an interlocal entity, each employee of a public agency that is a party to the agreement shall:
(a) remain an employee of that public agency, even though assigned to perform services for another public agency under the agreement; and
(b) continue to be governed by the rules, rights, entitlements, and status that apply to an employee of that public agency.
(3) All of the privileges, immunities from liability, exemptions from laws, ordinances, and rules, pensions and relief, disability, workers compensation, and other benefits that apply to an officer, agent, or employee of a public agency while performing functions within the territorial limits of the public agency apply to the same degree and extent when the officer, agent, or employee performs functions or duties under the agreement outside the territorial limits of that public agency.
Section 109. Section 11-13-302 is amended to read:
11-13-302
. Payment of fee in lieu of ad valorem property tax by certain energy suppliers -- Method of calculating -- Collection -- Extent of tax lien.(1) (a) Each project entity created under this chapter that owns a project and that sells any capacity, service, or other benefit from it to an energy supplier or suppliers whose tangible property is not exempted by Utah Constitution Article XIII, Section 3, from the payment of ad valorem property tax, shall pay an annual fee in lieu of ad valorem property tax as provided in this section to each taxing jurisdiction within which the project or any part of it is located.
(b) For purposes of this section, "annual fee" means the annual fee described in Subsection (1)(a) that is in lieu of ad valorem property tax.
(c) The requirement to pay an annual fee shall commence:
(i) with respect to each taxing jurisdiction that is a candidate receiving the benefit of impact alleviation payments under contracts or determination orders provided for in Sections 11-13-305 and 11-13-306, with the fiscal year of the candidate following the fiscal year of the candidate in which the date of commercial operation of the last generating unit, other than any generating unit providing additional project capacity, of the project occurs, or, in the case of any facilities providing additional project capacity, with the fiscal year of the candidate following the fiscal year of the candidate in which the date of commercial operation of the generating unit providing the additional project capacity occurs; and
(ii) with respect to any taxing jurisdiction other than a taxing jurisdiction described in Subsection (1)(c)(i), with the fiscal year of the taxing jurisdiction in which construction of the project commences, or, in the case of facilities providing additional project capacity, with the fiscal year of the taxing jurisdiction in which construction of those facilities commences.
(d) The requirement to pay an annual fee shall continue for the period of the useful life of the project or facilities.
(2) (a) The annual fees due a school district shall be as provided in Subsection (2)(b) because the ad valorem property tax imposed by a school district and authorized by the Legislature under Section 53A-17a-135 represents both:
(i) a levy mandated by the state for the state minimum school program under Section 53A-17a-135; and
(ii) local levies for capital outlay, maintenance, transportation, and other purposes under Sections 11-2-7, 53A-16-107, 53A-16-110, 53A-17a-126, 53A-17a-127, 53A-17a-133, 53A-17a-134, 53A-17a-143, 53A-17a-145, and 53A-21-103.
(b) The annual fees due a school district shall be as follows:
(i) the project entity shall pay to the school district an annual fee for the state minimum school program at the rate imposed by the school district and authorized by the Legislature under Subsection 53A-17a-135(1); and
(ii) for all other local property tax levies authorized to be imposed by a school district, the project entity shall pay to the school district either:
(A) an annual fee; or
(B) impact alleviation payments under contracts or determination orders provided for in Sections 11-13-305 and 11-13-306.
(3) (a) An annual fee due a taxing jurisdiction for a particular year shall be calculated by multiplying the tax rate or rates of the jurisdiction for that year by the product obtained by multiplying the fee base or value determined in accordance with Subsection (4) for that year of the portion of the project located within the jurisdiction by the percentage of the project which is used to produce the capacity, service, or other benefit sold to the energy supplier or suppliers.
(b) As used in this section, "tax rate," when applied in respect to a school district, includes any assessment to be made by the school district under Subsection (2) or Section [63-51-6] 63M-5-302.
(c) There is to be credited against the annual fee due a taxing jurisdiction for each year, an amount equal to the debt service, if any, payable in that year by the project entity on bonds, the proceeds of which were used to provide public facilities and services for impact alleviation in the taxing jurisdiction in accordance with Sections 11-13-305 and 11-13-306.
(d) The tax rate for the taxing jurisdiction for that year shall be computed so as to:
(i) take into account the fee base or value of the percentage of the project located within the taxing jurisdiction determined in accordance with Subsection (4) used to produce the capacity, service, or other benefit sold to the supplier or suppliers; and
(ii) reflect any credit to be given in that year.
(4) (a) Except as otherwise provided in this section, the annual fees required by this section shall be paid, collected, and distributed to the taxing jurisdiction as if:
(i) the annual fees were ad valorem property taxes; and
(ii) the project were assessed at the same rate and upon the same measure of value as taxable property in the state.
(b) (i) Notwithstanding Subsection (4)(a), for purposes of an annual fee required by this section, the fee base of a project may be determined in accordance with an agreement among:
(A) the project entity; and
(B) any county that:
(I) is due an annual fee from the project entity; and
(II) agrees to have the fee base of the project determined in accordance with the agreement described in this Subsection (4).
(ii) The agreement described in Subsection (4)(b)(i):
(A) shall specify each year for which the fee base determined by the agreement shall be used for purposes of an annual fee; and
(B) may not modify any provision of this chapter except the method by which the fee base of a project is determined for purposes of an annual fee.
(iii) For purposes of an annual fee imposed by a taxing jurisdiction within a county described in Subsection (4)(b)(i)(B), the fee base determined by the agreement described in Subsection (4)(b)(i) shall be used for purposes of an annual fee imposed by that taxing jurisdiction.
(iv) (A) If there is not agreement as to the fee base of a portion of a project for any year, for purposes of an annual fee, the State Tax Commission shall determine the value of that portion of the project for which there is not an agreement:
(I) for that year; and
(II) using the same measure of value as is used for taxable property in the state.
(B) The valuation required by Subsection (4)(b)(iv)(A) shall be made by the State Tax Commission in accordance with rules made by the State Tax Commission.
(c) Payments of the annual fees shall be made from:
(i) the proceeds of bonds issued for the project; and
(ii) revenues derived by the project entity from the project.
(d) (i) The contracts of the project entity with the purchasers of the capacity, service, or other benefits of the project whose tangible property is not exempted by Utah Constitution Article XIII, Section 3, from the payment of ad valorem property tax shall require each purchaser, whether or not located in the state, to pay, to the extent not otherwise provided for, its share, determined in accordance with the terms of the contract, of these fees.
(ii) It is the responsibility of the project entity to enforce the obligations of the purchasers.
(5) (a) The responsibility of the project entity to make payment of the annual fees is limited to the extent that there is legally available to the project entity, from bond proceeds or revenues, monies to make these payments, and the obligation to make payments of the annual fees is not otherwise a general obligation or liability of the project entity.
(b) No tax lien may attach upon any property or money of the project entity by virtue of any failure to pay all or any part of an annual fee.
(c) The project entity or any purchaser may contest the validity of an annual fee to the same extent as if the payment was a payment of the ad valorem property tax itself.
(d) The payments of an annual fee shall be reduced to the extent that any contest is successful.
(6) (a) The annual fee described in Subsection (1):
(i) shall be paid by a public agency that:
(A) is not a project entity; and
(B) owns an interest in a facility providing additional project capacity if the interest is otherwise exempt from taxation pursuant to Utah Constitution, Article XIII, Section 3; and
(ii) for a public agency described in Subsection (6)(a)(i), shall be calculated in accordance with Subsection (6)(b).
(b) The annual fee required under Subsection (6)(a) shall be an amount equal to the tax rate or rates of the applicable taxing jurisdiction multiplied by the product of the following:
(i) the fee base or value of the facility providing additional project capacity located within the jurisdiction;
(ii) the percentage of the ownership interest of the public agency in the facility; and
(iii) the portion, expressed as a percentage, of the public agency's ownership interest that is attributable to the capacity, service, or other benefit from the facility that is sold by the public agency to an energy supplier or suppliers whose tangible property is not exempted by Utah Constitution, Article XIII, Section 3, from the payment of ad valorem property tax.
(c) A public agency paying the annual fee pursuant to Subsection (6)(a) shall have the obligations, credits, rights, and protections set forth in Subsections (1) through (5) with respect to its ownership interest as though it were a project entity.
Section 110. Section 11-13-303 is amended to read:
11-13-303
. Source of project entity's payment of sales and use tax -- Gross receipts taxes for facilities providing additional project capacity.(1) A project entity is not exempt from sales and use taxes under Title 59, Chapter 12, Sales and Use Tax Act, to the extent provided in Subsection 59-12-104(2).
(2) A project entity may make payments or prepayments of sales and use taxes, as provided in [Title 63, Chapter 51] Title 63M, Chapter 5, Resource Development, from the proceeds of revenue bonds issued under Section 11-13-218 or other revenues of the project entity.
(3) (a) This Subsection (3) applies with respect to facilities providing additional project capacity.
(b) (i) The in lieu excise tax imposed under Title 59, Chapter 8, Gross Receipts Tax on Certain Corporations Not Required to Pay Corporate Franchise or Income Tax Act, shall be imposed collectively on all gross receipts derived with respect to the ownership interests of all project entities and other public agencies in facilities providing additional project capacity as though all such ownership interests were held by a single project entity.
(ii) The in lieu excise tax shall be calculated as though the gross receipts derived with respect to all such ownership interests were received by a single taxpayer that has no other gross receipts.
(iii) The gross receipts attributable to such ownership interests shall consist solely of gross receipts that are expended by each project entity and other public agency holding an ownership interest in the facilities for the operation or maintenance of or ordinary repairs or replacements to the facilities.
(iv) For purposes of calculating the in lieu excise tax, the determination of whether there is a tax rate and, if so, what the tax rate is shall be governed by Section 59-8-104, except that the $10,000,000 figures in Section 59-8-104 indicating the amount of gross receipts that determine the applicable tax rate shall be replaced with $5,000,000.
(c) Each project entity and public agency owning an interest in the facilities providing additional project capacity shall be liable only for the portion of the gross receipts tax referred to in Subsection (3)(b) that is proportionate to its percentage ownership interest in the facilities and may not be liable for any other gross receipts taxes with respect to its percentage ownership interest in the facilities.
(d) No project entity or other public agency that holds an ownership interest in the facilities may be subject to the taxes imposed under Title 59, Chapter 7, Corporate Franchise and Income Taxes, with respect to those facilities.
(4) For purposes of calculating the gross receipts tax imposed on a project entity or other public agency under Title 59, Chapter 8, Gross Receipts Tax on Certain Corporations Not Required to Pay Corporate Franchise or Income Tax Act, or Subsection (3), gross receipts include only gross receipts from the first sale of capacity, services, or other benefits and do not include gross receipts from any subsequent sale, resale, or layoff of the capacity, services, or other benefits.
Section 111. Section 11-17-20 is amended to read:
11-17-20
. Power of the State Charter School Finance Authority.(1) The State Charter School Finance Authority may exercise the powers granted to municipalities and counties by this chapter, subject to the same limitations as that imposed on a municipality or county under the chapter, except as provided by Title 53A, Chapter 20b, State Charter School Finance Authority Act.
(2) As used in this chapter, "governing body" when applied to the State Charter School Finance Authority means the authority's governing board as described in Section 53A-20b-103.
(3) Notwithstanding Section 11-17-15, a charter school that receives financing under this chapter is subject to [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
Section 112. Section 11-36-201 is amended to read:
11-36-201
. Impact fees -- Analysis -- Capital facilities plan -- Notice of plan -- Summary -- Exemptions.(1) (a) Each local political subdivision and private entity shall comply with the requirements of this chapter before establishing or modifying any impact fee.
(b) A local political subdivision may not:
(i) establish any new impact fees that are not authorized by this chapter; or
(ii) impose or charge any other fees as a condition of development approval unless those fees are a reasonable charge for the service provided.
(c) Notwithstanding any other requirements of this chapter, each local political subdivision shall ensure that each existing impact fee that is charged for any public facility not authorized by Subsection 11-36-102(12) is repealed by July 1, 1995.
(d) (i) Existing impact fees for public facilities authorized in Subsection 11-36-102(12) that are charged by local political subdivisions need not comply with the requirements of this chapter until July 1, 1997.
(ii) By July 1, 1997, each local political subdivision shall:
(A) review any impact fees in existence as of the effective date of this act, and prepare and approve the analysis required by this section for each of those impact fees; and
(B) ensure that the impact fees comply with the requirements of this chapter.
(2) (a) Before imposing impact fees, each local political subdivision shall prepare a capital facilities plan.
(b) (i) As used in this Subsection (2)(b):
(A) (I) "Affected entity" means each county, municipality, local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, school district, interlocal cooperation entity established under Chapter 13, Interlocal Cooperation Act, and specified public utility:
(Aa) whose services or facilities are likely to require expansion or significant modification because of the facilities proposed in the proposed capital facilities plan; or
(Bb) that has filed with the local political subdivision or private entity a copy of the general or long-range plan of the county, municipality, local district, special service district, school district, interlocal cooperation entity, or specified public utility.
(II) "Affected entity" does not include the local political subdivision or private entity that is required under this Subsection (2) to provide notice.
(B) "Specified public utility" means an electrical corporation, gas corporation, or telephone corporation, as those terms are defined in Section 54-2-1.
(ii) Before preparing a capital facilities plan for facilities proposed on land located within a county of the first or second class, each local political subdivision and each private entity shall provide written notice, as provided in this Subsection (2)(b), of its intent to prepare a capital facilities plan.
(iii) Each notice under Subsection (2)(b)(ii) shall:
(A) indicate that the local political subdivision or private entity intends to prepare a capital facilities plan;
(B) describe or provide a map of the geographic area where the proposed capital facilities will be located;
(C) be sent to:
(I) each county in whose unincorporated area and each municipality in whose boundaries is located the land on which the proposed facilities will be located;
(II) each affected entity;
(III) the Automated Geographic Reference Center created in Section 63F-1-506;
(IV) the association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, in which the facilities are proposed to be located; and
(V) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202; and
(D) with respect to the notice to affected entities, invite the affected entities to provide information for the local political subdivision or private entity to consider in the process of preparing, adopting, and implementing a capital facilities plan concerning:
(I) impacts that the facilities proposed in the capital facilities plan may have on the affected entity; and
(II) facilities or uses of land that the affected entity is planning or considering that may conflict with the facilities proposed in the capital facilities plan.
(c) The plan shall identify:
(i) demands placed upon existing public facilities by new development activity; and
(ii) the proposed means by which the local political subdivision will meet those demands.
(d) Municipalities and counties need not prepare a separate capital facilities plan if the general plan required by Sections 10-9a-401 and 17-27a-401 contains the elements required by Subsection (2)(c).
(e) (i) If a local political subdivision prepares an independent capital facilities plan rather than including a capital facilities element in the general plan, the local political subdivision shall, before adopting the capital facilities plan:
(A) give public notice of the plan according to this Subsection (2)(e);
(B) at least 14 days before the date of the public hearing:
(I) make a copy of the plan, together with a summary designed to be understood by a lay person, available to the public; and
(II) place a copy of the plan and summary in each public library within the local political subdivision; and
(C) hold a public hearing to hear public comment on the plan.
(ii) Municipalities shall comply with the notice and hearing requirements of, and, except as provided in Subsection 11-36-401(4)(f), receive the protections of Sections 10-9a-205 and 10-9a-801 and Subsection 10-9a-502(2).
(iii) Counties shall comply with the notice and hearing requirements of, and, except as provided in Subsection 11-36-401(4)(f), receive the protections of Sections 17-27a-205 and 17-27a-801 and Subsection 17-27a-502(2).
(iv) Local districts, special service districts, and private entities shall comply with the notice and hearing requirements of, and receive the protections of, Section 17B-1-111.
(v) Nothing contained in this Subsection (2)(e) or in the subsections referenced in Subsections (2)(e)(ii) and (iii) may be construed to require involvement by a planning commission in the capital facilities planning process.
(f) (i) Local political subdivisions with a population or serving a population of less than 5,000 as of the last federal census need not comply with the capital facilities plan requirements of this part, but shall ensure that the impact fees imposed by them are based upon a reasonable plan.
(ii) Subsection (2)(f)(i) does not apply to private entities.
(3) In preparing the plan, each local political subdivision shall generally consider all revenue sources, including impact fees, to finance the impacts on system improvements.
(4) A local political subdivision may only impose impact fees on development activities when its plan for financing system improvements establishes that impact fees are necessary to achieve an equitable allocation to the costs borne in the past and to be borne in the future, in comparison to the benefits already received and yet to be received.
(5) (a) Each local political subdivision imposing impact fees shall prepare a written analysis of each impact fee that:
(i) identifies the impact on system improvements required by the development activity;
(ii) demonstrates how those impacts on system improvements are reasonably related to the development activity;
(iii) estimates the proportionate share of the costs of impacts on system improvements that are reasonably related to the new development activity; and
(iv) based upon those factors and the requirements of this chapter, identifies how the impact fee was calculated.
(b) In analyzing whether or not the proportionate share of the costs of public facilities are reasonably related to the new development activity, the local political subdivision shall identify, if applicable:
(i) the cost of existing public facilities;
(ii) the manner of financing existing public facilities, such as user charges, special assessments, bonded indebtedness, general taxes, or federal grants;
(iii) the relative extent to which the newly developed properties and the other properties in the municipality have already contributed to the cost of existing public facilities, by such means as user charges, special assessments, or payment from the proceeds of general taxes;
(iv) the relative extent to which the newly developed properties and the other properties in the municipality will contribute to the cost of existing public facilities in the future;
(v) the extent to which the newly developed properties are entitled to a credit because the municipality is requiring their developers or owners, by contractual arrangement or otherwise, to provide common facilities, inside or outside the proposed development, that have been provided by the municipality and financed through general taxation or other means, apart from user charges, in other parts of the municipality;
(vi) extraordinary costs, if any, in servicing the newly developed properties; and
(vii) the time-price differential inherent in fair comparisons of amounts paid at different times.
(c) Each local political subdivision that prepares a written analysis under this Subsection (5) on or after July 1, 2000 shall also prepare a summary of the written analysis, designed to be understood by a lay person.
(6) Each local political subdivision that adopts an impact fee enactment under Section 11-36-202 on or after July 1, 2000 shall, at least 14 days before adopting the enactment, submit to each public library within the local political subdivision:
(a) a copy of the written analysis required by Subsection (5)(a); and
(b) a copy of the summary required by Subsection (5)(c).
(7) Nothing in this chapter may be construed to repeal or otherwise eliminate any impact fee in effect on the effective date of this chapter that is pledged as a source of revenues to pay bonded indebtedness that was incurred before the effective date of this chapter.
Section 113. Section 11-36-402 is amended to read:
11-36-402
. Challenging an impact fee by arbitration -- Procedure -- Appeal -- Costs.(1) Each person or entity intending to challenge an impact fee under Subsection 11-36-401(4)(c)(ii) shall file a written request for arbitration with the local political subdivision within the time limitation provided in Subsection 11-36-401(4)(b) for the applicable type of challenge.
(2) If a person or entity files a written request for arbitration under Subsection (1), an arbitrator or arbitration panel shall be selected as follows:
(a) the local political subdivision and the person or entity filing the request may agree on a single arbitrator within ten days after the day the request for arbitration is filed; or
(b) if a single arbitrator is not agreed to in accordance with Subsection (2)(a), an arbitration panel shall be created with the following members:
(i) each party shall select an arbitrator within 20 days after the date the request is filed; and
(ii) the arbitrators selected under Subsection (2)(b)(i) shall select a third arbitrator.
(3) The arbitration panel shall hold a hearing on the challenge within 30 days after the date:
(a) the single arbitrator is agreed on under Subsection (2)(a); or
(b) the two arbitrators are selected under Subsection (2)(b)(i).
(4) The arbitrator or arbitration panel shall issue a decision in writing within ten days from the date the hearing under Subsection (3) is completed.
(5) Except as provided in this section, each arbitration shall be governed by Title 78, Chapter 31a, Utah Uniform Arbitration Act.
(6) The parties may agree to:
(a) binding arbitration;
(b) formal, nonbinding arbitration; or
(c) informal, nonbinding arbitration.
(7) If the parties agree in writing to binding arbitration:
(a) the arbitration shall be binding;
(b) the decision of the arbitration panel shall be final;
(c) neither party may appeal the decision of the arbitration panel; and
(d) notwithstanding Subsection (10), the person or entity challenging the impact fee may not also challenge the impact fee under Subsection 11-36-401(1), (4)(c)(i), or (4)(c)(iii).
(8) (a) Except as provided in Subsection (8)(b), if the parties agree to formal, nonbinding arbitration, the arbitration shall be governed by the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) For purposes of applying [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to a formal, nonbinding arbitration under this section, notwithstanding Section [63-46b-20] 63G-4-502, "agency" means a local political subdivision.
(9) (a) An appeal from a decision in an informal, nonbinding arbitration may be filed with the district court in which the local political subdivision is located.
(b) Each appeal under Subsection (9)(a) shall be filed within 30 days after the date the arbitration panel issues a decision under Subsection (4).
(c) The district court shall consider de novo each appeal filed under this Subsection (9).
(d) Notwithstanding Subsection (10), a person or entity that files an appeal under this Subsection (9) may not also challenge the impact fee under Subsection 11-36-401(1), (4)(c)(i), or (4)(c)(iii).
(10) (a) Except as provided in Subsections (7)(d) and (9)(d), this section may not be construed to prohibit a person or entity from challenging an impact fee as provided in Subsection 11-36-401(1), (4)(c)(i), or (4)(c)(iii).
(b) The filing of a written request for arbitration within the required time in accordance with Subsection (1) tolls all time limitations under Section 11-36-401 until the date the arbitration panel issues a decision.
(11) The person or entity filing a request for arbitration and the local political subdivision shall equally share all costs of an arbitration proceeding under this section.
Section 114. Section 11-37-101 is amended to read:
11-37-101
. Definition -- Procurement -- Use of recycled goods.(1) "Local government entity" means:
(a) municipalities, cities, and counties;
(b) entities created under Title 26A, Chapter 1, Local Health Departments; and
(c) political subdivisions created by cities or counties, including entities created under:
(i) Title 9, Chapter 4, Part 9, Utah Housing Corporation Act; and
(ii) Title 11, Chapter 13, Interlocal Cooperation Act.
(2) The procurement officer or other person responsible for purchasing supplies for each local government entity shall:
(a) maintain for reference a copy of the current listing of recycled items available on state contract as issued by the chief procurement officer under Section [63-56-204] 63G-6-204; and
(b) give recycled items consideration when inviting bids and purchasing supplies.
Section 115. Section 11-38-102 is amended to read:
11-38-102
. Definitions.As used in this chapter:
(1) "Affordable housing" means housing occupied or reserved for occupancy by households with a gross household income equal to or less than 80% of the median gross income of the applicable municipal or county statistical area for households of the same size.
(2) "Agricultural land" has the same meaning as "land in agricultural use" under Section 59-2-502.
(3) "Brownfield sites" means abandoned, idled, or underused commercial or industrial land where expansion or redevelopment is complicated by real or perceived environmental contamination.
(4) "Commission" means the Quality Growth Commission established in Section 11-38-201.
(5) "Fund" means the LeRay McAllister Critical Land Conservation Fund established in Section 11-38-301.
(6) "Infill development" means residential, commercial, or industrial development on unused or underused land, excluding open land and agricultural land, within existing, otherwise developed urban areas.
(7) "Local entity" means a county, city, or town.
(8) "OPB" means the Governor's Office of Planning and Budget established under Section [63-38d-201] 63J-4-201.
(9) (a) "Open land" means land that is:
(i) preserved in or restored to a predominantly natural, open, and undeveloped condition; and
(ii) used for:
(A) wildlife habitat;
(B) cultural or recreational use;
(C) watershed protection; or
(D) another use consistent with the preservation of the land in or restoration of the land to a predominantly natural, open, and undeveloped condition.
(b) (i) "Open land" does not include land whose predominant use is as a developed facility for active recreational activities, including baseball, tennis, soccer, golf, or other sporting or similar activity.
(ii) The condition of land does not change from a natural, open, and undeveloped condition because of the development or presence on the land of facilities, including trails, waterways, and grassy areas, that:
(A) enhance the natural, scenic, or aesthetic qualities of the land; or
(B) facilitate the public's access to or use of the land for the enjoyment of its natural, scenic, or aesthetic qualities and for compatible recreational activities.
(10) "Surplus land" means real property owned by the Department of Administrative Services, the Department of Agriculture and Food, the Department of Natural Resources, or the Department of Transportation that the individual department determines not to be necessary for carrying out the mission of the department.
Section 116. Section 11-38-303 is amended to read:
11-38-303
. Commission expenses -- Division of Finance responsibilities -- Investment of monies into the fund -- Interest to accrue to the fund.(1) Commission expenses and the costs of administering loans from the fund, as provided in Subsection (2), shall be paid from the fund.
(2) (a) The Division of Finance shall be responsible for the care, custody, safekeeping, collection, and accounting for loans issued by the commission as provided in Section [63-65-4] 63B-1b-202.
(b) The Division of Finance may charge to the fund the administrative costs incurred in discharging the responsibilities imposed by Subsection (2)(a).
(3) The state treasurer shall invest all monies deposited into the fund, and all interest from investing the monies shall accrue to the fund.
Section 117. Section 11-39-101 is amended to read:
11-39-101
. Definitions.As used in this chapter:
(1) "Bid limit" means:
(a) for a building improvement:
(i) for the year 2003, $40,000; and
(ii) for each year after 2003, the amount of the bid limit for the previous year, plus an amount calculated by multiplying the amount of the bid limit for the previous year by the lesser of 3% or the actual percent change in the Consumer Price Index during the previous calendar year; and
(b) for a public works project:
(i) for the year 2003, $125,000; and
(ii) for each year after 2003, the amount of the bid limit for the previous year, plus an amount calculated by multiplying the amount of the bid limit for the previous year by the lesser of 3% or the actual percent change in the Consumer Price Index during the previous calendar year.
(2) "Building improvement":
(a) means the construction or repair of a public building or structure; and
(b) does not include construction or repair at an international airport.
(3) "Consumer Price Index" means the Consumer Price Index for All Urban Consumers as published by the Bureau of Labor Statistics of the United States Department of Labor.
(4) "Design-build project":
(a) means a building improvement or public works project costing over $250,000 with respect to which both the design and construction are provided for in a single contract with a contractor or combination of contractors capable of providing design-build services; and
(b) does not include a building improvement or public works project:
(i) that is undertaken by a local entity under contract with a construction manager that guarantees the contract price and is at risk for any amount over the contract price; and
(ii) each component of which is competitively bid.
(5) "Design-build services" means the engineering, architectural, and other services necessary to formulate and implement a design-build project, including its actual construction.
(6) "Emergency repairs" means a building improvement or public works project undertaken on an expedited basis to:
(a) eliminate an imminent risk of damage to or loss of public or private property;
(b) remedy a condition that poses an immediate physical danger; or
(c) reduce a substantial, imminent risk of interruption of an essential public service.
(7) "Governing body" means:
(a) for a county, city, or town, the legislative body of the county, city, or town;
(b) for a local district, the board of trustees of the local district; and
(c) for a special service district:
(i) the legislative body of the county, city, or town that established the special service district, if no administrative control board has been appointed under Section 17A-2-1326; or
(ii) the administrative control board of the special service district, if an administrative control board has been appointed under Section 17A-2-1326.
(8) "Local district" has the same meaning as defined in Section 17B-1-102.
(9) "Local entity" means a county, city, town, local district, or special service district.
(10) "Lowest responsive responsible bidder" means a prime contractor who:
(a) has submitted a bid in compliance with the invitation to bid and within the requirements of the plans and specifications for the building improvement or public works project;
(b) is the lowest bidder that satisfies the local entity's criteria relating to financial strength, past performance, integrity, reliability, and other factors that the local entity uses to assess the ability of a bidder to perform fully and in good faith the contract requirements;
(c) has furnished a bid bond or equivalent in money as a condition to the award of a prime contract; and
(d) furnishes a payment and performance bond as required by law.
(11) "Procurement code" means the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(12) "Public works project":
(a) means the construction of:
(i) a park or recreational facility; or
(ii) a pipeline, culvert, dam, canal, or other system for water, sewage, storm water, or flood control; and
(b) does not include:
(i) the replacement or repair of existing infrastructure on private property;
(ii) construction commenced before June 1, 2003; and
(iii) construction or repair at an international airport.
(13) "Special service district" means a special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act.
Section 118. Section 11-39-107 is amended to read:
11-39-107
. Procurement code.(1) This chapter may not be construed to:
(a) prohibit a county legislative body from adopting the procedures of the procurement code; or
(b) limit the application of the procurement code to a local district or special service district.
(2) (a) In seeking bids and awarding a contract for a building improvement or public works project, a county legislative body may elect to follow the provisions of the procurement code, as the county legislative body considers appropriate under the circumstances, for specification preparation, source selection, or contract formation.
(b) A county legislative body's election to adopt the procedures of the procurement code may not excuse the county from complying with the requirements to award a contract for work in excess of the bid limit and to publish notice of the intent to award.
(c) An election under Subsection (2)(a) may be made on a case-by-case basis, unless the county has previously adopted the procurement code as permitted by Subsection [63-56-102] 63G-6-104(3)(e).
(d) The county legislative body shall:
(i) make each election under Subsection (2)(a) in an open meeting; and
(ii) specify in its action the portions of the procurement code to be followed.
(3) If the estimated cost of the building improvement or public works project proposed by a local district or special service district exceeds the bid limit, the governing body of the local district or special service district may, if it determines to proceed with the building improvement or public works project, use the competitive procurement procedures of the procurement code in place of the comparable provisions of this chapter.
Section 119. Section 11-42-205 is amended to read:
11-42-205
. Unimproved property.(1) A local entity may not designate an assessment area in which more than 75% of the property proposed to be assessed consists of unimproved property unless the local entity:
(a) has obtained an appraisal of the unimproved property from an appraiser who is a member of the Appraisal Institute, verifying that the market value of the property, after completion of the proposed improvements, is at least three times the amount of the assessment proposed to be levied against the unimproved property;
(b) has obtained from each owner of unimproved property:
(i) financial information acceptable to the governing body demonstrating the owner's ability to pay the proposed assessment; or
(ii) a financial institution's commitment securing, to the governing body's satisfaction, the owner's obligation to pay the proposed assessment; and
(c) has prepared a development plan, approved by a qualified, independent third party, describing the plan of development and the financial feasibility of the plan, taking into account growth trends, absorption studies, and other demographic information applicable to the unimproved property.
(2) Information that an owner provides to a local entity under Subsection (1)(b)(i) is not a record for purposes of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 120. Section 12-1-10 is amended to read:
12-1-10
. Applications -- Fees.(1) Each application for registration under this chapter shall be made on a form provided by the Division of Corporations and Commercial Code.
(2) Each applicant shall pay to the Division of Corporations and Commercial Code an application fee determined under Section [63-38-3.2] 63J-1-303.
Section 121. Section 13-1-2 is amended to read:
13-1-2
. Creation and functions of department -- Divisions created -- Fees.(1) (a) There is created the Department of Commerce.
(b) The department shall execute and administer state laws regulating business activities and occupations affecting the public interest.
(2) Within the department the following divisions are created:
(a) the Division of Occupational and Professional Licensing;
(b) the Division of Real Estate;
(c) the Division of Securities;
(d) the Division of Public Utilities;
(e) the Division of Consumer Protection; and
(f) the Division of Corporations and Commercial Code.
(3) (a) Unless otherwise provided by statute, the department may adopt a schedule of fees assessed for services provided by the department by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(b) The department shall submit each fee established in this manner to the Legislature for its approval as part of the department's annual appropriations request.
(c) (i) All fees collected by each division and by the department shall be deposited in a restricted account within the General Fund known as the Commerce Service Fund.
(ii) At the end of each fiscal year, the director of the Division of Finance shall transfer into the General Fund any fee collections that are greater than the legislative appropriations from the Commerce Service Fund for that year.
(d) The department may not charge or collect any fee nor expend monies from this fund without approval by the Legislature.
Section 122. Section 13-1-8.5 is amended to read:
13-1-8.5
. Procedures -- Adjudicative proceedings.(1) The Department of Commerce and its divisions shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
(2) The department may contract with other state agencies or departments to conduct hearings in its name or in the name of its divisions or agencies.
Section 123. Section 13-1a-5 is amended to read:
13-1a-5
. Authority of director.The director has authority:
(1) to make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act, to administer the responsibilities of the division;
(2) to investigate, upon complaint, the corporation and commercial code filings and compliance governed by the laws administered and enforced by the division; and
(3) under the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, the Utah Administrative Procedures Act, to take administrative action against persons in violation of the division rules and the laws administered by it, including the issuance of cease and desist orders.
Section 124. Section 13-1a-6 is amended to read:
13-1a-6
. Powers of Division of Corporations and Commercial Code -- Document retention.(1) The Division of Corporations and Commercial Code shall have the power and authority reasonably necessary to enable it to efficiently administer the laws and rules for which it is responsible and to perform the duties imposed upon it by law.
(2) The division has authority under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to make rules and procedures for the processing, retention, and disposal of filed documents to efficiently utilize electronic and computerized document image storage and retrieval.
(3) Notwithstanding the provisions of Section [63-2-905] 63A-12-105, original documents filed in the division offices shall not be considered property of the state if electronic image reproductions thereof which comply with the provisions of [Title 63, Chapter 2,] Title 63G, Chapter 2, Government Records Access and Management Act, are retained by the division.
Section 125. Section 13-1a-7 is amended to read:
13-1a-7
. Hearing powers.(1) The director, in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, may hold or cause to be held administrative hearings regarding any matter affecting the division or the incorporation or registration activities of any business governed by the laws administered by the division.
(2) The director or his designee, for the purposes outlined in this chapter or any chapter administered by the division, may administer oaths, issue subpoenas, compel the attendance of witnesses, and compel the production of papers, books, accounts, documents, and evidence.
Section 126. Section 13-1a-9 is amended to read:
13-1a-9
. Fees of Division of Corporations and Commercial Code.In addition to the fees prescribed by Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, and Title 16, Chapter 10a, Utah Revised Business Corporation Act, the Division of Corporations and Commercial Code shall receive and determine fees pursuant to Section [63-38-3.2] 63J-1-303 for filing articles of incorporation or amendments of insurance corporations, of canal or irrigation corporations organized for furnishing water to lands owned by the members thereof exclusively, or of water users' associations organized in conformity with the requirements of the United States under the Reclamation Act of June 17, 1902, and which are authorized to furnish water only to their stockholders. No license fee may be imposed on insurance corporations, canal or irrigation corporations organized for furnishing water to lands owned by the members thereof exclusively, or water users' associations organized in conformity with the requirements of the United States under the Reclamation Act of June 17, 1902, and which are authorized to furnish water only to the stockholders at the time any such corporation files its articles of incorporation, articles of amendment increasing the number of authorized shares, or articles of merger or consolidation, any provision of Title 16, Chapter 10a, Utah Revised Business Corporation Act, to the contrary notwithstanding.
Section 127. Section 13-2-5 is amended to read:
13-2-5
. Powers of director.The director has authority to:
(1) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, issue rules to administer and enforce the chapters listed in Section 13-2-1;
(2) investigate the activities of any business governed by the laws administered and enforced by the division;
(3) take administrative and judicial action against persons in violation of the division rules and the laws administered and enforced by it, including the issuance of cease and desist orders;
(4) coordinate, cooperate, and assist with business and industry desiring or attempting to correct unfair business practices between competitors;
(5) provide consumer information and education to the public and assist any organization providing such services; and
(6) coordinate with, assist, and utilize the assistance of federal, state, and local agencies in the performance of his duties and the protection of the public.
Section 128. Section 13-2-6 is amended to read:
13-2-6
. Enforcement powers.(1) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division shall have authority to convene administrative hearings, issue cease and desist orders, and impose fines under all the chapters identified in Section 13-2-1.
(2) Any person who intentionally violates a final cease and desist order entered by the division of which he has notice is guilty of a third degree felony.
(3) If the division has reasonable cause to believe that any person is engaged in violating any chapter listed in Section 13-2-1, the division may promptly issue the alleged violator a citation signed by the division's director or his designee.
(a) Each citation shall be in writing and shall:
(i) set forth with particularity the nature of the violation, including a reference to the statutory or administrative rule provision being violated;
(ii) state that any request for review of the citation must be made in writing and be received by the division no more than ten days following issuance;
(iii) state the consequences of failing to make a timely request for review; and
(iv) state all other information required by Subsection [63-46b-3] 63G-4-201(2).
(b) In computing any time period prescribed by this section, the following days may not be included:
(i) the day a citation is issued by the division;
(ii) the day the division received a request for review of a citation;
(iii) Saturdays and Sundays; and
(iv) a legal holiday set forth in Subsection [63-13-2] 63G-1-301(1)(a).
(c) If the recipient of a citation makes a timely request for review, within ten days of receiving the request, the division shall convene an adjudicative proceeding in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(d) (i) If the presiding officer finds that there is not substantial evidence that the recipient violated a chapter listed in Section 13-2-1 at the time the citation was issued, the citation may not become final, and the division shall immediately vacate the citation and promptly notify the recipient in writing.
(ii) If the presiding officer finds there is substantial evidence that the recipient violated a chapter listed in Section 13-2-1 at the time the citation was issued, the citation shall become final and the division may enter a cease and desist order against the recipient.
(e) A citation issued under this chapter may be personally served upon any person upon whom a summons may be served in accordance with the Utah Rules of Civil Procedure. A citation also may be served by first-class mail, postage prepaid.
(f) If the recipient fails to make a timely request for review, the citation shall become the final order of the division. The period to contest the citation may be extended by the director for good cause shown.
(g) If the chapter violated allows for an administrative fine, after a citation becomes final, the director may impose the administrative fine.
(4) (a) A person violating a chapter identified in Section 13-2-1 is subject to the division's jurisdiction if:
(i) the violation or attempted violation is committed either wholly or partly within the state;
(ii) conduct committed outside the state constitutes an attempt to commit a violation within the state; or
(iii) transactional resources located within the state are used by the offender to directly or indirectly facilitate a violation or attempted violation.
(b) As used in this section, "transactional resources" means:
(i) any mail drop or mail box, whether or not located on the premises of a United States Post Office;
(ii) any telephone or facsimile transmission device;
(iii) any internet connection by a resident or inhabitant of this state with either a resident or nonresident maintained internet site;
(iv) any business office or private residence used for a business-related purpose;
(v) any account with or services of a financial institution;
(vi) the services of a common or private carrier; or
(vii) the use of any city, county, or state asset or facility, including any road or highway.
(5) The director or his designee, for the purposes outlined in any chapter administered by the division, may administer oaths, issue subpoenas, compel the attendance of witnesses, and compel the production of papers, books, accounts, documents, and evidence.
Section 129. Section 13-2-8 is amended to read:
13-2-8
. Consumer Protection Education and Training Fund.(1) There is created a restricted special revenue fund known as the "Consumer Protection Education and Training Fund."
(2) (a) Unless otherwise provided by a chapter listed in Section 13-2-1, all money not distributed as consumer restitution that is received by the division from administrative fines and settlements, from criminal restitution, or from civil damages, forfeitures, penalties, and settlements when the division receives the monies on its own behalf and not in a representative capacity, shall be deposited into the fund.
(b) Any portion of the fund may be maintained in an interest-bearing account.
(c) All interest earned on fund monies shall be deposited into the fund.
(3) Notwithstanding [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, the division may use the fund with the approval of the executive director of the Department of Commerce in a manner consistent with the duties of the division under this chapter for:
(a) consumer protection education for members of the public;
(b) equipment for and training of division personnel;
(c) publication of consumer protection brochures, laws, policy statements, or other material relevant to the division's enforcement efforts; and
(d) investigation and litigation undertaken by the division.
(4) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess shall be transferred to the General Fund.
Section 130. Section 13-2-9 is amended to read:
13-2-9
. Internet -- Consumer education.(1) The Division of Consumer Protection shall, subject to appropriation, contract with a person to make public service announcements advising consumers about the dangers of using the Internet, especially:
(a) material harmful to minors;
(b) steps a consumer may take to learn more about the dangers of using the Internet;
(c) information about how a service provider can help a consumer learn more about the dangers of using the Internet, including the service provider's duties created by this bill; and
(d) how a consumer can monitor the Internet usage of family members.
(2) Monies appropriated under Subsection (1) shall be paid by the Division of Consumer Protection to a person only if:
(a) the person is a nonprofit organization; and
(b) the person agrees to spend private monies amounting to two times the amount of monies provided by the Division of Consumer Protection during each fiscal year in accordance with Subsection (1).
(3) In administering any monies appropriated for use under this section, the Division of Consumer Protection shall comply with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
Section 131. Section 13-14-104 is amended to read:
13-14-104
. Powers and duties of the advisory board and the executive director.(1) (a) Except as provided in Subsection 13-14-106(3), the advisory board shall make recommendations to the executive director on the administration and enforcement of this chapter, including adjudicative and rulemaking proceedings.
(b) The executive director shall:
(i) consider the advisory board's recommendations; and
(ii) issue any final decision by the department.
(2) The executive director, in consultation with the advisory board, shall make rules for the administration of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) An adjudicative proceeding under this chapter shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) In an adjudicative proceeding under this chapter, any order issued by the executive director:
(i) shall comply with Section [63-46b-10] 63G-4-208, whether the proceeding is a formal or an informal adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(ii) if the order modifies or rejects a finding of fact in a recommendation from the advisory board, shall be made on the basis of information learned from the executive director's:
(A) personal attendance at the hearing; or
(B) review of the record developed at the hearing.
Section 132. Section 13-14-105 is amended to read:
13-14-105
. Registration -- Fees.(1) A franchisee or franchisor doing business in this state shall:
(a) annually register or renew its registration with the department in a manner established by the department; and
(b) pay an annual registration fee in an amount determined by the department in accordance with Sections 13-1-2 and [63-38-3.2] 63J-1-303.
(2) The department shall register or renew the registration of a franchisee or franchisor if the franchisee or franchisor complies with this chapter and rules made by the department under this chapter.
(3) A franchisee or franchisor registered under this section shall comply with this chapter and any rules made by the department under this chapter including any amendments to this chapter or the rules made after a franchisee or franchisor enter into a franchise agreement.
(4) The fee imposed under Subsection (1)(b) shall be collected by the department and deposited into the Commerce Service Fund.
(5) Notwithstanding Subsection (1), an agent, officer, or field or area representative of a franchisor does not need to be registered under this section if the franchisor is registered under this section.
Section 133. Section 13-14-106 is amended to read:
13-14-106
. Administrative proceedings commenced by the agency.(1) Except as provided in Subsection (3), after a hearing and after receipt of the advisory board's recommendation, if the executive director finds that a person has violated this chapter or any rule made under this chapter, the executive director may:
(a) issue a cease and desist order; and
(b) assess an administrative fine.
(2) (a) In determining the amount and appropriateness of an administrative fine under Subsection (1), the executive director shall consider:
(i) the gravity of the violation;
(ii) any history of previous violations; and
(iii) any attempt made by the person to retaliate against another person for seeking relief under this chapter or other federal or state law relating to the motor vehicle industry.
(b) In addition to any other action permitted under Subsection (1), the department may file an action with a court seeking to enforce the executive director's order and pursue the executive director's assessment of a fine in an amount not to exceed $5,000 for each day a person violates an order of the executive director.
(3) (a) In addition to the grounds for issuing an order on an emergency basis listed in Subsection [63-46b-20] 63G-4-502(1), the executive director may issue an order on an emergency basis if the executive director determines that irreparable damage is likely to occur if immediate action is not taken.
(b) In issuing an emergency order under Subsection (3)(a) the executive director shall comply with the requirements of Subsections [63-46b-20] 63G-4-502(2) and (3).
Section 134. Section 13-14-107 is amended to read:
13-14-107
. Administrative proceedings -- Request for agency action.(1) (a) A person may commence an adjudicative proceeding in accordance with this chapter and with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act to:
(i) remedy a violation of this chapter;
(ii) obtain approval of an act regulated by this chapter; or
(iii) obtain any determination that this chapter specifically authorizes that person to request.
(b) A person shall commence an adjudicative proceeding by filing a request for agency action in accordance with Section [63-46b-3] 63G-4-201.
(2) After receipt of the advisory board's recommendation, the executive director shall apportion in a fair and equitable manner between the parties any costs of the adjudicative proceeding, including reasonable attorney’s fees.
Section 135. Section 13-15-4 is amended to read:
13-15-4
. Information to be filed by seller -- Representations.(1) Any seller of an assisted marketing plan shall file the following information with the division:
(a) the name, address, and principal place of business of the seller, and the name, address, and principal place of business of the parent or holding company of the seller, if any, who is responsible for statements made by the seller;
(b) all trademarks, trade names, service marks, or advertising or other commercial symbols that identify the products, equipment, supplies, or services to be offered, sold, or distributed by the prospective purchaser;
(c) an individual detailed statement covering the past five years of the business experience of each of the seller's current directors and executive officers and an individual statement covering the same period for the seller and the seller's parent company, if any, including the length of time each:
(i) has conducted a business of the type advertised or solicited for operation by a prospective purchaser;
(ii) has offered or sold the assisted marketing plan; and
(iii) has offered for sale or sold assisted marketing plans in other lines of business, together with a description of the other lines of business;
(d) a statement of the total amount that must be paid by the purchaser to obtain or commence the business opportunity such as initial fees, deposits, down payments, prepaid rent, and equipment and inventory purchases; provided, that if all or part of these fees or deposits are returnable, the conditions under which they are returnable shall also be disclosed;
(e) a complete statement of the actual services the seller will perform for the purchaser;
(f) a complete statement of all oral, written, or visual representations that will be made to prospective purchasers about specific levels of potential sales, income, gross and net profits, or any other representations that suggest a specific level;
(g) a complete description of the type and length of any training promised to prospective purchasers;
(h) a complete description of any services promised to be performed by the seller in connection with the placement of the equipment, products, or supplies at any location from which they will be sold or used; and a complete description of those services together with any agreements that will be made by the seller with the owner or manager of the location where the purchaser's equipment, products, or supplies will be placed;
(i) a statement that discloses any person identified in Subsection (1)(a) who:
(i) has been convicted of a felony or misdemeanor or pleaded nolo contendere to a felony or misdemeanor charge if the felony or misdemeanor involved fraud, embezzlement, fraudulent conversion, or misappropriation of property;
(ii) has been held liable or consented to the entry of a stipulated judgment in any civil action based upon fraud, embezzlement, fraudulent conversion, misappropriation of property, or the use of untrue or misleading representations in the sale or attempted sale of any real or personal property, or upon the use of any unfair, unlawful or deceptive business practice; or
(iii) is subject to an injunction or restrictive order relating to business activity as the result of an action brought by a public agency;
(j) a financial statement of the seller signed by one of the seller's officers, directors, trustees, or general or limited partners, under a declaration that certifies that to the signatory's knowledge and belief the information in the financial statement is true and accurate; a financial statement that is more than 13 months old is unacceptable;
(k) a copy of the entire marketing plan contract;
(l) the number of marketing plans sold to date, and the number of plans under negotiation;
(m) geographical information including all states in which the seller's assisted marketing plans have been sold, and the number of plans in each such state;
(n) the total number of marketing plans that were cancelled by the seller in the past 12 months;
(o) the number of marketing plans that were voluntarily terminated by purchasers within the past 12 months and the total number of such voluntary terminations to date.
(2) The seller of an assisted marketing plan filing information under Subsection (1) shall pay a fee as determined by the department in accordance with Section [63-38-3.2] 63J-1-303.
(3) Before commencing business in this state, the seller of an assisted marketing plan shall file the information required under Subsection (1) and receive from the division proof of receipt of the filing.
(4) A seller of an assisted marketing plan claiming an exemption from filing under this chapter shall file a notice of claim of exemption from filing with the division. A seller claiming an exemption from filing bears the burden of proving the exemption. The division shall collect a fee for filing a notice of claim of exemption, as determined by the department in accordance with Section [63-38-3.2] 63J-1-303.
(5) A representation described in Subsection (1)(f) shall be relevant to the geographic market in which the business opportunity is to be located. When the statements or representations are made, a warning after the representation in not less than 12 point upper and lower case boldface type shall appear as follows:
CAUTION
No guarantee of earnings or ranges of earnings can be made. The number of purchasers who have earned through this business an amount in excess of the amount of their initial payment is at least _____ which represents _____% of the total number of purchasers of this business opportunity.
Section 136. Section 13-15-4.5 is amended to read:
13-15-4.5
. Notice of exemption filing.(1) (a) Any franchise exempt from this chapter pursuant to Subsection 13-15-2(1)(b)(iii) shall, prior to offering for sale or selling a franchise to be located in this state or to a resident of this state, file with the division a notice that the franchisor is in substantial compliance with the requirements of the Federal Trade Commission rule found at Title 16, Chapter I, Subchapter d, Trade Regulation Rules, Part 436, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, together with a filing fee determined by the department pursuant to Section [63-38-3.2] 63J-1-303, not to exceed $100.
(b) The notice shall state:
(i) the name of the applicant;
(ii) the name of the franchise;
(iii) the name under which the applicant intends to or does transact business, if different than the name of the franchise;
(iv) the applicant's principal business address; and
(v) the applicant's federal employer identification number.
(2) (a) The initial exemption granted under this section is for a period of one year from the date of filing the notice.
(b) The exemption may be renewed each year for an additional one-year period upon filing a notice for renewal and paying a renewal fee determined pursuant to Section [63-38-3.2] 63J-1-303, not to exceed $100.
(3) The division may make rules to implement this section.
Section 137. Section 13-21-3 is amended to read:
13-21-3
. Credit services organizations -- Prohibitions.(1) A credit services organization, its salespersons, agents, and representatives, and independent contractors who sell or attempt to sell the services of a credit services organization may not do any of the following:
(a) conduct any business regulated by this chapter without first:
(i) securing a certificate of registration from the division; and
(ii) unless exempted under Section 13-21-4, posting a bond, letter of credit, or certificate of deposit with the division in the amount of $100,000;
(b) make a false statement, or fail to state a material fact, in connection with an application for registration with the division;
(c) charge or receive any money or other valuable consideration prior to full and complete performance of the services the credit services organization has agreed to perform for the buyer;
(d) dispute or challenge, or assist a person in disputing or challenging an entry in a credit report prepared by a consumer reporting agency without a factual basis for believing and obtaining a written statement for each entry from the person stating that that person believes that the entry contains a material error or omission, outdated information, inaccurate information, or unverifiable information;
(e) charge or receive any money or other valuable consideration solely for referral of the buyer to a retail seller who will or may extend credit to the buyer, if the credit that is or will be extended to the buyer is upon substantially the same terms as those available to the general public;
(f) make, or counsel or advise any buyer to make, any statement that is untrue or misleading and that is known, or that by the exercise of reasonable care should be known, to be untrue or misleading, to a credit reporting agency or to any person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit, with respect to a buyer's creditworthiness, credit standing, or credit capacity;
(g) make or use any untrue or misleading representations in the offer or sale of the services of a credit services organization or engage, directly or indirectly, in any act, practice, or course of business that operates or would operate as fraud or deception upon any person in connection with the offer or sale of the services of a credit services organization; and
(h) transact any business as a credit services organization, as defined in Section 13-21-2, without first having registered with the division by paying an annual fee set pursuant to Section [63-38-3.2] 63J-1-303 and filing proof that it has obtained a bond or letter of credit as required by Subsection (1).
(2) (a) A bond, letter of credit from a Utah depository, or certificate of deposit posted with the division shall be used to cover the losses of any person arising from a violation of this chapter by the posting credit services organization. A bond, letter of credit, or certificate of deposit may also be used to satisfy administrative fines and civil damages arising from any enforcement action against the posting credit service organization.
(b) A bond, letter of credit, or certificate of deposit shall remain in force:
(i) until replaced by a bond, letter of credit, or certificate of deposit of identical or superior coverage; or
(ii) for one year after the credit servicing organization notifies the division in writing that it has ceased all activities regulated by this chapter.
Section 138. Section 13-22-3 is amended to read:
13-22-3
. Investigative and enforcement powers -- Education.(1) The division may make any investigation it considers necessary to determine whether any person is violating, has violated, or is about to violate any provision of this chapter or any rule made or order issued under this chapter. As part of the investigation, the division may:
(a) require a person to file a statement in writing;
(b) administer oaths, subpoena witnesses and compel their attendance, take evidence, and examine under oath any person in connection with an investigation; and
(c) require the production of any books, papers, documents, merchandise, or other material relevant to the investigation.
(2) Whenever it appears to the director that substantial evidence exists that any person has engaged in, is engaging in, or is about to engage in any act or practice prohibited in this chapter or constituting a violation of this chapter or any rule made or order issued under this chapter, the director may do any of the following in addition to other specific duties under this chapter:
(a) in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the director may issue an order to cease and desist from engaging in the act or practice or from doing any act in furtherance of the activity; or
(b) the director may bring an action in the appropriate district court of this state to enjoin the acts or practices constituting the violation or to enforce compliance with this chapter or any rule made or order issued under this chapter.
(3) Whenever it appears to the director by a preponderance of the evidence that a person has engaged in or is engaging in any act or practice prohibited in this chapter or constituting a violation of this chapter or any rule made or order issued under this chapter, the director may assess an administrative fine of up to $500 per violation up to $10,000 for any series of violations arising out of the same operative facts.
(4) Upon a proper showing, the court hearing an action brought under Subsection (2)(b) may:
(a) issue an injunction;
(b) enter a declaratory judgment;
(c) appoint a receiver for the defendant or the defendant's assets;
(d) order disgorgement of any money received in violation of this chapter;
(e) order rescission of agreements violating this chapter;
(f) impose a fine of not more than $2,000 for each violation of this chapter; and
(g) impose a civil penalty, or any other relief the court considers just.
(5) (a) In assessing the amount of a fine or penalty under Subsection (3), (4)(f), or (4)(g), the director or court imposing the fine or penalty shall consider the gravity of the violation and the intent of the violator.
(b) If it does not appear by a preponderance of the evidence that the violator acted in bad faith or with intent to harm the public, the director or court shall excuse payment of the fine or penalty.
(6) The division may provide or contract to provide public education and voluntary education for applicants and registrants under this chapter. The education may be in the form of publications, advertisements, seminars, courses, or other appropriate means. The scope of the education may include:
(a) the requirements, prohibitions, and regulated practices under this chapter;
(b) suggestions for effective financial and organizational practices for charitable organizations;
(c) charitable giving and solicitation;
(d) potential problems with solicitations and fraudulent or deceptive practices; and
(e) any other matter relevant to the subject of this chapter.
Section 139. Section 13-22-6 is amended to read:
13-22-6
. Application for registration.(1) An applicant for registration or renewal of registration as a charitable organization shall:
(a) pay an application fee as determined under Section [63-38-3.2] 63J-1-303; and
(b) submit an application on a form approved by the division which shall include:
(i) the organization's name, address, telephone number, facsimile number, if any, and the names and addresses of any organizations or persons controlled by, controlling, or affiliated with the applicant;
(ii) the specific legal nature of the organization, that is, whether it is an individual, joint venture, partnership, limited liability company, corporation, association, or other entity;
(iii) the names and residence addresses of the officers and directors of the organization;
(iv) the name and address of the registered agent for service of process and a consent to service of process;
(v) the purpose of the solicitation and use of the contributions to be solicited;
(vi) the method by which the solicitation will be conducted and the projected length of time it is to be conducted;
(vii) the anticipated expenses of the solicitation, including all commissions, costs of collection, salaries, and any other items;
(viii) a statement of what percentage of the contributions collected as a result of the solicitation are projected to remain available for application to the charitable purposes declared in the application, including a satisfactory statement of the factual basis for the projected percentage;
(ix) a statement of total contributions collected or received by the organization within the calendar year immediately preceding the date of the application, including a description of the expenditures made from or the use made of the contributions;
(x) a copy of any written agreements with any professional fund raiser involved with the solicitation;
(xi) disclosure of any injunction, judgment, or administrative order or conviction of any crime involving moral turpitude with respect to any officer, director, manager, operator, or principal of the organization;
(xii) a copy of all agreements to which the applicant is, or proposes to be, a party regarding the use of proceeds for the solicitation or fundraising;
(xiii) a statement of whether or not the charity, or its parent foundation, will be using the services of a professional fund raiser or of a professional fund raising counsel or consultant;
(xiv) if either the charity or its parent foundation will be using the services of a professional fund raiser or a professional fund raising counsel or consultant:
(A) a copy of all agreements related to the services; and
(B) an acknowledgment that fund raising in the state will not commence until both the charitable organization, its parent foundation, if any, and the professional fund raiser or professional fund raising counsel or consultant are registered and in compliance with this chapter; and
(xv) any additional information the division may require by rule.
(2) If any information contained in the application for registration becomes incorrect or incomplete, the applicant or registrant shall, within 30 days after the information becomes incorrect or incomplete, correct the application or file the complete information required by the division.
(3) In addition to the registration fee, an organization failing to file a registration application or renewal by the due date or filing an incomplete registration application or renewal shall pay an additional fee of $25 for each month or part of a month after the date on which the registration application or renewal were due to be filed.
Section 140. Section 13-22-8 is amended to read:
13-22-8
. Exemptions.(1) Section 13-22-5 does not apply to:
(a) a solicitation that an organization conducts among its own established and bona fide membership exclusively through the voluntarily donated efforts of other members or officers of the organization;
(b) a bona fide religious, ecclesiastical, or denominational organization if:
(i) the solicitation is made for a church, missionary, religious, or humanitarian purpose; and
(ii) the organization is either:
(A) a lawfully organized corporation, institution, society, church, or established physical place of worship, at which nonprofit religious services and activities are regularly conducted and carried on;
(B) a bona fide religious group:
(I) that does not maintain specific places of worship;
(II) that is not subject to federal income tax; and
(III) not required to file an IRS Form 990 under any circumstance; or
(C) a separate group or corporation that is an integral part of an institution that is an income tax exempt organization under 26 U.S.C. Sec. 501(c)(3) and is not primarily supported by funds solicited outside its own membership or congregation;
(c) a solicitation by a broadcast media owned or operated by an educational institution or governmental entity, or any entity organized solely for the support of that broadcast media;
(d) except as provided in Subsection 13-22-21(1), a solicitation for the relief of any person sustaining a life-threatening illness or injury specified by name at the time of solicitation if the entire amount collected without any deduction is turned over to the named person;
(e) a political party authorized to transact its affairs within this state and any candidate and campaign worker of the party if the content and manner of any solicitation make clear that the solicitation is for the benefit of the political party or candidate;
(f) a political action committee or group soliciting funds relating to issues or candidates on the ballot if the committee or group is required to file financial information with a federal or state election commission;
(g) any school accredited by the state, any accredited institution of higher learning, or club or parent, teacher, or student organization within and authorized by the school in support of the operations or extracurricular activities of the school;
(h) a public or higher education foundation established under Title 53A or 53B;
(i) a television station, radio station, or newspaper of general circulation that donates air time or print space for no consideration as part of a cooperative solicitation effort on behalf of a charitable organization, whether or not that organization is required to register under this chapter;
(j) a volunteer fire department, rescue squad, or local civil defense organization whose financial oversight is under the control of a local governmental entity;
(k) any governmental unit of any state or the United States; and
(l) any corporation:
(i) established by an act of the United States Congress; and
(ii) that is required by federal law to submit an annual report:
(A) on the activities of the corporation, including an itemized report of all receipts and expenditures of the corporation; and
(B) to the United States Secretary of Defense to be:
(I) audited; and
(II) submitted to the United States Congress.
(2) Any organization claiming an exemption under this section bears the burden of proving its eligibility for, or the applicability of, the exemption claimed.
(3) Each organization exempt from registration pursuant to this section that makes a material change in its legal status, officers, address, or similar changes shall file a report informing the division of its current legal status, business address, business phone, officers, and primary contact person within 30 days of the change.
(4) The division may by rule:
(a) require organizations exempt from registration pursuant to this section to file a notice of claim of exemption;
(b) prescribe the contents of the notice of claim; and
(c) require a filing fee for the notice, as determined under Section [63-38-3.2] 63J-1-303.
Section 141. Section 13-22-9 is amended to read:
13-22-9
. Professional fund raiser's or fund raising counsel's or consultant's permit.(1) It is unlawful for any person or entity to act as a professional fund raiser or professional fund raising counsel or consultant, whether or not representing an organization exempt from registration under Section 13-22-8, without first obtaining a permit from the division by complying with all of the following application requirements:
(a) pay an application fee as determined under Section [63-38-3.2] 63J-1-303; and
(b) submit a written application, verified under oath, on a form approved by the division that includes:
(i) the applicant's name, address, telephone number, facsimile number, if any;
(ii) the name and address of any organization or person controlled by, controlling, or affiliated with the applicant;
(iii) the applicant's business, occupation, or employment for the three-year period immediately preceding the date of the application;
(iv) whether it is an individual, joint venture, partnership, limited liability company, corporation, association, or other entity;
(v) the names and residence addresses of any officer or director of the applicant;
(vi) the name and address of the registered agent for service of process and a consent to service of process;
(vii) if a professional fund raiser:
(A) the purpose of the solicitation and use of the contributions to be solicited;
(B) the method by which the solicitation will be conducted and the projected length of time it is to be conducted;
(C) the anticipated expenses of the solicitation, including all commissions, costs of collection, salaries, and any other items;
(D) a statement of what percentage of the contributions collected as a result of the solicitation are projected to remain available to the charitable organization declared in the application, including a satisfactory statement of the factual basis for the projected percentage and projected anticipated revenues provided to the charitable organization, and if a flat fee is charged, documentation to support the reasonableness of the flat fee; and
(E) a statement of total contributions collected or received by the professional fund raiser within the calendar year immediately preceding the date of the application, including a description of the expenditures made from or the use made of the contributions;
(viii) if a professional fund raising counsel or consultant:
(A) the purpose of the plan, management, advise, counsel or preparation of materials for, or respect to the solicitation and use of the contributions solicited;
(B) the method by which the plan, management, advise, counsel, or preparation of materials for, or respect to the solicitation will be organized or coordinated and the projected length of time of the solicitation;
(C) the anticipated expenses of the plan, management, advise, counsel, or preparation of materials for, or respect to the solicitation, including all commissions, costs of collection, salaries, and any other items;
(D) a statement of total fees to be earned or received from the charitable organization declared in the application, and what percentage of the contributions collected as a result of the plan, management, advise, counsel, or preparation of materials for, or respect to the solicitation are projected after deducting the total fees to be earned or received remain available to the charitable organization declared in the application, including a satisfactory statement of the factual basis for the projected percentage and projected anticipated revenues provided to the charitable organization, and if a flat fee is charged, documentation to support the reasonableness of such flat fee; and
(E) a statement of total net fees earned or received within the calendar year immediately preceding the date of the application, including a description of the expenditures made from or the use of the net earned or received fees in the planning, management, advising, counseling, or preparation of materials for, or respect to the solicitation and use of the contributions solicited for the charitable organization;
(ix) disclosure of any injunction, judgment, or administrative order against the applicant or the applicant's conviction of any crime involving moral turpitude;
(x) a copy of any written agreements with any charitable organization;
(xi) the disclosure of any injunction, judgment, or administrative order or conviction of any crime involving moral turpitude with respect to any officer, director, manager, operator, or principal of the applicant;
(xii) a copy of all agreements to which the applicant is, or proposes to be, a party regarding the use of proceeds;
(xiii) an acknowledgment that fund raising in the state will not commence until both the professional fund raiser or professional fund raising counsel or consultant and the charity, its parent foundation, if any, are registered and in compliance with this chapter; and
(xiv) any additional information the division may require by rule.
(2) If any information contained in the application for a permit becomes incorrect or incomplete, the applicant or registrant shall, within 30 days after the information becomes incorrect or incomplete, correct the application or file the complete information required by the division.
(3) In addition to the permit fee, an applicant failing to file a permit application or renewal by the due date or filing an incomplete permit application or renewal shall pay an additional fee of $25 for each month or part of a month after the date on which the permit application or renewal were due to be filed.
Section 142. Section 13-22-12 is amended to read:
13-22-12
. Grounds for denial, suspension, or revocation.(1) The director may, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, issue an order to deny, suspend, or revoke an application, registration, permit, or information card, upon a finding that the order is in the public interest and that:
(a) the application for registration or renewal is incomplete or misleading in any material respect;
(b) the applicant or registrant or any officer, director, agent, or employee of the applicant or registrant has:
(i) violated this chapter or committed any of the prohibited acts and practices described in this chapter;
(ii) been enjoined by any court, or is the subject of an administrative order issued in this or another state, if the injunction or order includes a finding or admission of fraud, breach of fiduciary duty, material misrepresentation, or if the injunction or order was based on a finding of lack of integrity, truthfulness, or mental competence of the applicant;
(iii) been convicted of a crime involving moral turpitude;
(iv) obtained or attempted to obtain a registration or a permit by misrepresentation;
(v) materially misrepresented or caused to be misrepresented the purpose and manner in which contributed funds and property will be used in connection with any solicitation;
(vi) caused or allowed any paid solicitor to violate any rule made or order issued under this chapter by the division;
(vii) failed to take corrective action with its solicitors who have violated this chapter or committed any of the prohibited acts and practices of this chapter;
(viii) used, or attempted to use a name that either is deceptively similar to a name used by an existing registered or exempt charitable organization, or appears reasonably likely to cause confusion of names;
(ix) failed to timely file with the division any report required in this chapter or by rules made under this chapter; or
(x) failed to pay a fine imposed by the division in accordance with Section 13-22-3; or
(c) the applicant for registration or renewal has no charitable purpose.
(2) The director may, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, issue an order to revoke or suspend a claim of exemption filed under Subsection 13-22-8(4), upon a finding that the order is in the public interest and that:
(a) the notice of claim of exemption is incomplete or false or misleading in any material respect; or
(b) any provision of this chapter, or any rule made or order issued by the division under this chapter has been violated in connection with a charitable solicitation by any exempt organization.
Section 143. Section 13-23-5 is amended to read:
13-23-5
. Registration -- Bond, letter of credit, or certificate of deposit required -- Penalties.(1) (a) (i) It is unlawful for any health spa facility to operate in this state unless the facility is registered with the division.
(ii) Registration is effective for one year. If the health spa facility renews its registration, the registration shall be renewed at least 30 days prior to its expiration.
(iii) The division shall provide by rule for the form, content, application process, and renewal process of the registration.
(b) Each health spa registering in this state shall designate a registered agent for receiving service of process. The registered agent shall be reasonably available from 8 a.m. until 5 p.m. during normal working days.
(c) The division shall charge and collect a fee for registration under guidelines provided in Section [63-38-3.2] 63J-1-303.
(d) If an applicant fails to file a registration application or renewal by the due date, or files an incomplete registration application or renewal, the applicant shall pay a fee of $25 for each month or part of a month after the date on which the registration application or renewal were due to be filed, in addition to the registration fee described in Subsection (1)(c).
(2) (a) Each health spa shall obtain and maintain:
(i) a performance bond issued by a surety authorized to transact surety business in this state;
(ii) an irrevocable letter of credit issued by a financial institution authorized to do business in this state; or
(iii) a certificate of deposit.
(b) The bond, letter of credit, or certificate of deposit shall be payable to the division for the benefit of any consumer who incurs damages as the result of:
(i) the health spa's violation of this chapter; or
(ii) the health spa's going out of business or relocating and failing to offer an alternate location within five miles.
(c) (i) The division may recover from the bond, letter of credit, or certificate of deposit the costs of collecting and distributing funds under this section, up to 10% of the face value of the bond, letter of credit, or certificate of deposit but only if the consumers have fully recovered their damages first.
(ii) The total liability of the issuer of the bond, letter of credit, or certificate of deposit may not exceed the amount of the bond, letter of credit, or certificate of deposit.
(iii) The health spa shall maintain a bond, letter of credit, or certificate of deposit in force for one year after it notifies the division in writing that it has ceased all activities regulated by this chapter.
(d) A health spa providing services at more than one location shall comply with the requirements of Subsection (2)(a) for each separate location.
(e) The division may impose a fine against a health spa that fails to comply with the requirements of Subsection (2)(a) of up to $100 per day that the health spa remains out of compliance. All penalties received shall be deposited into the Consumer Protection Education and Training Fund created in Section 13-2-8.
(3) (a) The minimum principal amount of the bond, letter of credit, or certificate of credit required under Subsection (2) shall be based on the number of unexpired contracts for health spa services to which the health spa is a party, in accordance with the following schedule:
Principal Amount of Number of Contracts
Bond, Letter of Credit,
or Certificate of Deposit
$15,000 500 or fewer
35,000 501 to 1,500
50,000 1,500 to 3,000
75,000 3,001 or more
(b) A health spa that is not exempt under Section 13-23-6 shall comply with Subsection (3)(a) with respect to all of the health spa's unexpired contracts for health spa services, regardless of whether a portion of those contracts satisfy the criteria in Section 13-23-6.
(4) Each health spa shall obtain the bond, letter of credit, or certificate of deposit and furnish a certified copy of the bond, letter of credit, or certificate of deposit to the division prior to selling, offering or attempting to sell, soliciting the sale of, or becoming a party to any contract to provide health spa services. A health spa is considered to be in compliance with this section only if the proof provided to the division shows that the bond, letter of credit, or certificate of credit is current.
(5) Each health spa shall:
(a) maintain accurate records of the bond, letter of credit, or certificate of credit and of any payments made, due, or to become due to the issuer; and
(b) open the records to inspection by the division at any time during normal business hours.
(6) If a health spa changes ownership, ceases operation, discontinues facilities, or relocates and fails to offer an alternate location within five miles within 30 days after its closing, the health spa is subject to the requirements of this section as if it were a new health spa coming into being at the time the health spa changed ownership. The former owner may not release, cancel, or terminate the owner's liability under any bond, letter of credit, or certificate of deposit previously filed with the division, unless:
(a) the new owner has filed a new bond, letter of credit, or certificate of deposit for the benefit of consumers covered under the previous owner's bond, letter of credit, or certificate of deposit; or
(b) the former owner has refunded all unearned payments to consumers.
(7) If a health spa ceases operation or relocates and fails to offer an alternative location within five miles, the health spa shall provide the division with 45 days prior notice.
Section 144. Section 13-25a-109 is amended to read:
13-25a-109
. No-call database.(1) (a) In accordance with Subsection (1)(b), the division shall establish and provide for the operation of a no-call database to compile a list of telephone numbers of persons who have provided notice of the person's objection to receiving an unsolicited telephone call.
(b) The no-call database described in Subsection (1)(a) shall consist of the Utah telephone numbers contained in the national "do-not-call" registry established and maintained by the Federal Trade Commission pursuant to 16 C.F.R. 310.4(b)(1)(iii)(B).
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may adopt rules to:
(a) define the improper use of the no-call database;
(b) define administrative fines for the improper use of the no-call database, which may not be greater than those imposed for a violation of the national "do-not-call" registry described in Subsection (1)(b); and
(c) define administrative fines against a person that registers another person to the no-call database without that person's consent.
(3) Information contained in the no-call database maintained under this section shall be classified as private under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and shall be used only for purposes of:
(a) compliance with this chapter; or
(b) a proceeding or action to enforce this chapter.
Section 145. Section 13-26-3 is amended to read:
13-26-3
. Registration and bond required.(1) (a) Unless exempt under Section 13-26-4, each telephone soliciting business shall register annually with the division before engaging in telephone solicitations if:
(i) the telephone soliciting business engages in telephone solicitations that:
(A) originate in Utah; or
(B) are received in Utah; or
(ii) the telephone soliciting business conducts any business operations in Utah.
(b) The registration form shall designate an agent residing in this state who is authorized by the telephone soliciting business to receive service of process in any action brought by this state or a resident of this state.
(c) If a telephone soliciting business fails to designate an agent to receive service or fails to appoint a successor to the agent:
(i) the business' application for an initial or renewal registration shall be denied; and
(ii) any current registration shall be suspended until an agent is designated.
(2) The division may impose an annual registration fee set pursuant to Section [63-38-3.2] 63J-1-303.
(3) (a) Each telephone soliciting business engaging in telephone solicitation or sales in this state shall obtain and maintain the following security:
(i) a performance bond issued by a surety authorized to transact surety business in this state;
(ii) an irrevocable letter of credit issued by a financial institution authorized to do business in this state; or
(iii) a certificate of deposit held in this state in a depository institution regulated by the Department of Financial Institutions.
(b) The bond, letter of credit, or certificate of deposit shall be payable to the division for the benefit of any consumer who incurs damages as the result of any telephone solicitation or sales violation of this chapter.
(c) The division may recover from the bond, letter of credit, or certificate of deposit investigative costs, attorneys' fees, and other costs of collecting and distributing funds under this section and the costs of promoting consumer education, but only if the consumer has first recovered full damages.
(d) A telephone soliciting business shall keep a bond, certificate of deposit, or letter of credit in force for one year after it notifies the division in writing that it has ceased all activities regulated by this chapter.
(e) The amount to be posted in the form of a bond, irrevocable letter of credit, or certificate of deposit shall be:
(i) $25,000 if:
(A) neither the telephone soliciting business nor any affiliated person has violated this chapter within three years preceding the date of the application; and
(B) the telephone soliciting business has fewer than ten employees;
(ii) $50,000 if:
(A) neither the telephone soliciting business nor any affiliated person has violated this chapter within three years preceding the date of the application; and
(B) the telephone soliciting business has ten or more employees; or
(iii) $75,000 if the telephone soliciting business or any affiliated person has violated this chapter within three years preceding the date of the application.
(f) For purposes of Subsection (3)(e) an "affiliated person" means a contractor, director, employee, officer, owner, or partner of the telephone soliciting business.
(4) The division may establish by rule the registration requirements for telephone soliciting businesses under the terms of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. An administrative proceeding conducted by the division under this chapter shall comply with the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(5) The division director may revoke a registration under this section for any violation of this chapter.
Section 146. Section 13-32a-106.5 is amended to read:
13-32a-106.5
. Confidentiality of pawn and purchase transactions.(1) All pawn and purchase transaction records delivered to a local law enforcement official or transmitted to the central database pursuant to Section 13-32a-106 are protected records under Section [63-2-304] 63G-2-305. These records may be used only by law enforcement officials and the division and only for the law enforcement and administrative enforcement purposes of:
(a) investigating possible criminal conduct involving the property delivered to the pawnbroker in a pawn or purchase transaction;
(b) investigating a pawnbroker's possible violation of the record keeping or reporting requirements of this chapter when the local law enforcement official, based on a review of the records and information received, has reason to believe that a violation has occurred;
(c) responding to an inquiry from a person claiming ownership of described property by searching the database to determine if property matching the description has been delivered to a pawnbroker by another person in a pawn or purchase transaction and if so, obtaining from the database:
(i) a description of the property;
(ii) the name and address of the pawnbroker who received the property; and
(iii) the name, address, and date of birth of the conveying person; and
(d) take enforcement action under Section 13-2-5 against a pawnbroker.
(2) (a) A person may not knowingly and intentionally use, release, publish, or otherwise make available to any person or entity any information obtained from the database for any purpose other than those specified in Subsection (1).
(b) Each separate violation of this Subsection (2) is subject to a civil penalty not to exceed $250.
Section 147. Section 13-32a-111 is amended to read:
13-32a-111
. Fees to fund training and central database.(1) On and after January 1, 2005, each pawnshop or secondhand merchandise dealer in operation shall annually pay $250 to the division, to be deposited in the account.
(2) On and after January 1, 2005, each law enforcement agency that participates in the use of the database shall annually pay to the division a fee of $2 per sworn law enforcement officer who is employed by the agency as of January 1 of that year. The fee shall be deposited in the account.
(3) The fees under Subsections (1) and (2) shall be paid to the account annually on or before January 30.
(4) (a) If a law enforcement agency outside Utah requests access to the central database, the requesting agency shall pay a yearly fee of $750 for the fiscal year beginning July 1, 2006, which shall be deposited in the account.
(b) The board may establish the fee amount for fiscal years beginning on and after July 1, 2007 under Section [63-38-3.2] 63J-1-303.
Section 148. Section 13-34-104 is amended to read:
13-34-104
. Prohibited acts -- Exceptions -- Responsibilities of proprietary schools.(1) Except as provided in this chapter, a proprietary school may not offer, sell, or award a degree or any other type of educational credential unless the student has enrolled in and successfully completed a prescribed program of study as outlined in the proprietary school's catalogue.
(2) The prohibition described in Subsection (1) does not apply to:
(a) honorary credentials clearly designated as such on the front side of a diploma; or
(b) certificates and awards by a proprietary school that offers other educational credentials requiring enrollment in and successful completion of a prescribed program of study in compliance with the requirements of this chapter.
(3) A proprietary school must provide bona fide instruction through student-faculty interaction.
(4) A proprietary school may not enroll a student in a program unless the proprietary school has made a good-faith determination that the student has the ability to benefit from the program.
(5) A proprietary school may not make or cause to be made any oral, written, or visual statement or representation that an institution described in Subsection 13-34-107(2)(a)(ii) knows or should know to be:
(a) false;
(b) deceptive;
(c) substantially inaccurate; or
(d) misleading.
(6) The division shall establish standards and criteria by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the following:
(a) the awarding of educational credentials;
(b) bona fide instruction through student-faculty interaction; and
(c) determination of the ability of a student to benefit from a program.
Section 149. Section 13-34-107 is amended to read:
13-34-107
. Advertising, recruiting, or operating a proprietary school -- Required registration statement or exemption -- Certificate of registration -- Registration does not constitute endorsement.(1) (a) Unless an institution complies with Subsection (1)(b), the institution may not do any of the following in this state:
(i) advertise a proprietary school;
(ii) recruit students for a proprietary school; or
(iii) operate a proprietary school.
(b) An institution may not engage in an activity described in Subsection (1)(a) unless the institution:
(i) (A) files with the division a registration statement relating to the proprietary school that is in compliance with:
(I) applicable rules made by the division; and
(II) the requirements set forth in this chapter; and
(B) obtains a certificate of registration; or
(ii) establishes an exemption with the division.
(2) (a) The registration statement or exemption described in Subsection (1) shall be:
(i) verified by the oath or affirmation of the owner or a responsible officer of the proprietary school filing the registration statement or exemption; and
(ii) include a certification as to whether any of the following has violated laws, federal regulations, or state rules as determined in a criminal, civil, or administrative proceeding:
(A) the proprietary school; or
(B) any of the following with respect to the proprietary school:
(I) an owner;
(II) an officer;
(III) a director;
(IV) an administrator;
(V) a faculty member;
(VI) a staff member; or
(VII) an agent.
(b) The proprietary school shall:
(i) make available, upon request, a copy of the registration statement, showing the date upon which it was filed; and
(ii) display the certificate of registration obtained from the division in a conspicuous place on the proprietary school's premises.
(3) (a) A registration statement and the accompanying certificate of registration are not transferable.
(b) In the event of a change in ownership or in the governing body of the proprietary school, the new owner or governing body, within 30 days after the change, shall file a new registration statement.
(4) Except as provided in Subsection (3)(b), a registration statement or a renewal statement and the accompanying certificate of registration are effective for a period of two years after the date of filing and issuance.
(5) (a) The division shall establish a graduated fee structure for the filing of registration statements by various classifications of institutions pursuant to Section [63-38-3.2] 63J-1-303.
(b) Fees are not refundable.
(c) Fees shall be deposited in the Commerce Service Fund pursuant to Section 13-1-2.
(6) (a) Each proprietary school shall:
(i) demonstrate fiscal responsibility at the time the proprietary school files its registration statement as prescribed by rules of the division; and
(ii) provide evidence to the division that the proprietary school:
(A) is financially sound; and
(B) can reasonably fulfill commitments to and obligations the proprietary school has incurred with students and creditors.
(b) A proprietary school applying for an initial certificate of registration to operate shall prepare and submit financial statements and supporting documentation as requested by the division.
(c) A proprietary school applying for renewal of a certificate of registration to operate or renewal under new ownership must provide audited financial statements.
(d) The division may require evidence of financial status at other times when it is in the best interest of students to require such information.
(7) (a) A proprietary school applying for an initial certificate of registration or seeking renewal shall provide in a form approved by the division:
(i) a surety bond;
(ii) a certificate of deposit; or
(iii) an irrevocable letter of credit.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules providing for:
(i) the amount of the bond, certificate, or letter of credit required under Subsection (7)(a), not to exceed in amount the anticipated tuition and fees to be received by the proprietary school during a school year;
(ii) the execution of the bond, certificate, or letter of credit;
(iii) cancellation of the bond, certificate, or letter of credit during or at the end of the registration term; and
(iv) any other matters related to providing the bond, certificate, or letter of credit required under Subsection (7)(a).
(c) The bond, certificate, or letter of credit shall be used as a protection against loss of advanced tuition, book fees, supply fees, or equipment fees:
(i) collected by the proprietary school from a student or a student's parent, guardian, or sponsor prior to the completion of the program or courses for which it was collected; or
(ii) for which the student is liable.
(8) (a) Except as provided in Section 13-34-113, the division may not refuse acceptance of a registration statement that is:
(i) tendered for filing and, based on a preliminary review, appears to be in compliance with Subsections (1), (2), and (6); and
(ii) accompanied by:
(A) the required fee; and
(B) one of the following required by Subsection (7):
(I) surety bond;
(II) certificate of deposit; or
(III) irrevocable letter of credit.
(b) A certificate of registration is effective upon the date of issuance.
(c) The responsibility of compliance is upon the proprietary school and not upon the division.
(d) (i) If it appears to the division that a registration statement on file may not be in compliance with this chapter, the division may advise the proprietary school as to the apparent deficiencies.
(ii) After a proprietary school has been notified of a deficiency under Subsection (8)(d)(i), a new or amended statement may be presented for filing by the proprietary school, accompanied by:
(A) the required fee; and
(B) one of the following required by Subsection (7):
(I) surety bond;
(II) certificate of deposit; or
(III) irrevocable letter of credit.
(9) The following does not constitute and may not be represented by any person to constitute, an endorsement or approval of the proprietary school by either the division or the state:
(a) an acceptance of:
(i) a registration statement;
(ii) a renewal statement; or
(iii) an amended registration statement; and
(b) issuance of a certificate of registration.
Section 150. Section 13-34-113 is amended to read:
13-34-113
. Denial, suspension, or revocation of a certificate of registration -- Limitations.(1) In accordance with Chapter 2, Division of Consumer Protection, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may initiate proceedings to deny, suspend, or revoke a certificate of registration to operate a proprietary school under this chapter if:
(a) the division finds that the order is in the public interest; and
(b) (i) the registration statement or renewal statement is incomplete, false, or misleading in any respect;
(ii) the division determines that the educational credential associated with the proprietary school represents the undertaking or completion of educational achievement that has not been undertaken and earned; or
(iii) the proprietary school or an individual described in Subsection 13-34-107(2)(a)(ii)(B) has:
(A) violated any provision of:
(I) this chapter;
(II) the rules made by the division pursuant to this chapter; or
(III) a commitment made in a registration statement for a certificate of registration to operate the proprietary school;
(B) caused or allowed to occur a violation of any provision of:
(I) this chapter;
(II) the rules made by the division pursuant to this chapter; or
(III) a commitment made in a registration statement for a certificate of registration to operate the proprietary school;
(C) been enjoined by any court, or is the subject of an administrative or judicial order issued in this or another state, if the injunction or order:
(I) includes a finding or admission of fraud, breach of fiduciary duty, or material misrepresentation; or
(II) was based on a finding of lack of integrity, truthfulness, or mental competence;
(D) been convicted of a crime involving moral turpitude;
(E) obtained or attempted to obtain a certificate of registration under this chapter by misrepresentation;
(F) failed to timely file with the division any report required by:
(I) this chapter; or
(II) rules made by the division pursuant to this chapter;
(G) failed to furnish information requested by the division; or
(H) failed to pay an administrative fine imposed by the division in accordance with this chapter.
(2) Division staff may place reasonable limits upon a proprietary school's continued certificate of registration to operate if:
(a) there are serious concerns about the proprietary school's ability to provide the training in the manner approved by the division; and
(b) limitation is warranted to protect the students' interests.
(3) The division may:
(a) conduct a criminal background check on an individual described in Subsection 13-34-107(2)(a)(ii)(B); and
(b) require a proprietary school to provide to the division any information necessary to conduct a criminal background check on an individual described in Subsection 13-34-107(2)(a)(ii)(B).
Section 151. Section 13-35-104 is amended to read:
13-35-104
. Powers and duties of the advisory board and the executive director.(1) (a) Except as provided in Subsection 13-35-106(3), the advisory board shall make recommendations to the executive director on the administration and enforcement of this chapter, including adjudicative and rulemaking proceedings.
(b) The executive director shall:
(i) consider the advisory board's recommendations; and
(ii) issue any final decision by the department.
(2) The executive director, in consultation with the advisory board, shall make rules for the administration of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) An adjudicative proceeding under this chapter shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) In an adjudicative proceeding under this chapter, any order issued by the executive director:
(i) shall comply with Section [63-46b-10] 63G-4-208, whether the proceeding is a formal or an informal adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(ii) if the order modifies or rejects a finding of fact in a recommendation from the advisory board, shall be made on the basis of information learned from the executive director's:
(A) personal attendance at the hearing; or
(B) review of the record developed at the hearing.
Section 152. Section 13-35-105 is amended to read:
13-35-105
. Registration -- Fees.(1) A franchisee or franchisor doing business in this state shall:
(a) annually register or renew its registration with the department in a manner established by the department; and
(b) pay an annual registration fee in an amount determined by the department in accordance with Sections 13-1-2 and [63-38-3.2] 63J-1-303.
(2) The department shall register or renew the registration of a franchisee or franchisor if the franchisee or franchisor complies with this chapter and rules made by the department under this chapter.
(3) A franchisee or franchisor registered under this section shall comply with this chapter and any rules made by the department under this chapter including any amendments to this chapter or the rules made after a franchisee or franchisor enter into a franchise agreement.
(4) The fee imposed under Subsection (1)(b) shall be collected by the department and deposited into the Commerce Service Fund.
(5) Notwithstanding Subsection (1), an agent, officer, or field or area representative of a franchisor does not need to be registered under this section if the franchisor is registered under this section.
Section 153. Section 13-35-106 is amended to read:
13-35-106
. Administrative proceedings commenced by the agency.(1) Except as provided in Subsection (3), after a hearing and after receipt of the advisory board's recommendation, if the executive director finds that a person has violated this chapter or any rule made under this chapter, the executive director may:
(a) issue a cease and desist order; and
(b) assess an administrative fine.
(2) (a) In determining the amount and appropriateness of an administrative fine under Subsection (1), the executive director shall consider:
(i) the gravity of the violation;
(ii) any history of previous violations; and
(iii) any attempt made by the person to retaliate against another person for seeking relief under this chapter or other federal or state law relating to the motor vehicle industry.
(b) In addition to any other action permitted under Subsection (1), the department may file an action with a court seeking to enforce the executive director's order and pursue the executive director's assessment of a fine in an amount not to exceed $5,000 for each day a person violates an order of the executive director.
(3) (a) In addition to the grounds for issuing an order on an emergency basis listed in Subsection [63-46b-20] 63G-4-502(1), the executive director may issue an order on an emergency basis if the executive director determines that irreparable damage is likely to occur if immediate action is not taken.
(b) In issuing an emergency order under Subsection (3)(a), the executive director shall comply with the requirements of Subsections [63-46b-20] 63G-4-502(2) and (3).
Section 154. Section 13-35-107 is amended to read:
13-35-107
. Administrative proceedings -- Request for agency action.(1) (a) A person may commence an adjudicative proceeding in accordance with this chapter and with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to:
(i) remedy a violation of this chapter;
(ii) obtain approval of an act regulated by this chapter; or
(iii) obtain any determination that this chapter specifically authorizes that person to request.
(b) A person shall commence an adjudicative proceeding by filing a request for agency action in accordance with Section [63-46b-3] 63G-4-201.
(2) After receipt of the advisory board's recommendation, the executive director shall apportion in a fair and equitable manner between the parties any costs of the adjudicative proceeding, including reasonable attorney's fees.
Section 155. Section 13-39-201 is amended to read:
13-39-201
. Establishment of child protection registry.(1) The division shall:
(a) establish and operate a child protection registry to compile and secure a list of contact points the division has received pursuant to this section; or
(b) contract with a third party to establish and secure the registry described in Subsection (1)(a).
(2) (a) The division shall implement the registry described in this section with respect to email addresses beginning on July 1, 2005.
(b) The division shall implement the registry described in this section with respect to instant message identities.
(c) The division shall implement the registry described in this section with respect to mobile or other telephone numbers.
(3) (a) A person may register a contact point with the division pursuant to rules established by the division under Subsection 13-39-203(1) if:
(i) the contact point belongs to a minor;
(ii) a minor has access to the contact point; or
(iii) the contact point is used in a household in which a minor is present.
(b) A school or other institution that primarily serves minors may register its domain name with the division pursuant to rules made by the division under Subsection 13-39-203(1).
(c) The division shall provide a disclosure in a confirmation message sent to a person who registers a contact point under this section that reads: "No solution is completely secure. The most effective way to protect children on the Internet is to supervise use and review all email messages and other correspondence. Under law, theft of a contact point from the Child Protection Registry is a second degree felony. While every attempt will be made to secure the Child Protection Registry, registrants and their guardians should be aware that their contact points may be at a greater risk of being misappropriated by marketers who choose to disobey the law."
(4) A person desiring to send a communication described in Subsection 13-39-202(1) to a contact point or domain shall:
(a) use a mechanism established by rule made by the division under Subsection 13-39-203(2); and
(b) pay a fee for use of the mechanism described in Subsection (4)(a) determined by the division in accordance with Section [63-38-3.2] 63J-1-303.
(5) The division may implement a program to offer discounted compliance fees to senders who meet enhanced security conditions established and verified by the division, the third party registry provider, or a designee.
(6) The contents of the registry, and any complaint filed about a sender who violates this chapter, are not subject to public disclosure under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(7) The state shall promote the registry on the state's official Internet website.
Section 156. Section 13-39-203 is amended to read:
13-39-203
. Rulemaking authority.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules to establish procedures under which:
(1) (a) a person may register a contact point with the division under Section 13-39-201, including:
(i) the information necessary to register an instant message identity; and
(ii) for purposes of Subsection 13-39-102(1)(b)(iv), an electronic address that is similar to a contact point listed in Subsection 13-39-102(1); and
(b) a school or other institution that primarily serves minors may register its domain name with the division under Section 13-39-201;
(2) the division shall:
(a) provide a mechanism under which a person described in Subsection 13-39-201(4) may verify compliance with the registry to remove registered contact points from the person's communications; and
(b) establish the mechanism described in Subsection (2)(a) in a manner that protects the privacy and security of a contact point registered with the division under Section 13-39-201; and
(3) the division may:
(a) implement a program offering discounted fees to a sender who meets enhanced security conditions established and verified by the division, the third party registry provider, or a designee; and
(b) allow the third party registry provider to assist in any public or industry awareness campaign promoting the registry.
Section 157. Section 13-41-102 is amended to read:
13-41-102
. Definitions.For purposes of this chapter:
(1) "Consumer" means a person who acquires a good or service for consumption.
(2) "Division" means the Division of Consumer Protection.
(3) (a) "Emergency territory" means the geographical area:
(i) for which there has been a state of emergency declared; and
(ii) that is directly affected by the events giving rise to a state of emergency.
(b) "Emergency territory" does not include a geographical area that is affected by the events giving rise to a state of emergency only by economic market forces.
(4) "Excessive price" means a price for a good or service that exceeds by more than 10% the average price charged by that person for that good or service in the 30-day period immediately preceding the day on which the state of emergency is declared.
(5) "Good" means any personal property displayed, held, or offered for sale by a merchant that is necessary for consumption or use as a direct result of events giving rise to a state of emergency.
(6) "Retail" means the level of distribution where a good or service is typically sold directly, or otherwise provided, to a member of the public who is an end-user and does not resell the good or service.
(7) "Service" means any activity that is performed in whole or in part for the purpose of financial gain including, but not limited to, personal service, professional service, rental, leasing, or licensing for use that is necessary for consumption or use as a direct result of events giving rise to a state of emergency.
(8) "State of emergency" means a declaration of:
(a) an emergency or major disaster by the President of the United States of America; or
(b) a state of emergency by the governor under Section [63-5a-5] 63K-4-203.
Section 158. Section 13-42-105 is amended to read:
13-42-105
. Application for registration -- Form, fee, and accompanying documents.(1) An application for registration as a provider must be in a form prescribed by the administrator.
(2) Subject to adjustment of dollar amounts pursuant to Subsection 13-42-132(6), an application for registration as a provider must be accompanied by:
(a) the fee established by the administrator in accordance with Section [63-38-3.2] 63J-1-303;
(b) the bond required by Section 13-42-113;
(c) identification of all trust accounts required by Section 13-42-122 and an irrevocable consent authorizing the administrator to review and examine the trust accounts;
(d) evidence of insurance in the amount of $250,000:
(i) against the risks of dishonesty, fraud, theft, and other misconduct on the part of the applicant or a director, employee, or agent of the applicant;
(ii) issued by an insurance company authorized to do business in this state and rated at least A by a nationally recognized rating organization;
(iii) with no deductible;
(iv) payable to the applicant, the individuals who have agreements with the applicant, and this state, as their interests may appear; and
(v) not subject to cancellation by the applicant without the approval of the administrator;
(e) a record consenting to the jurisdiction of this state containing:
(i) the name, business address, and other contact information of its registered agent in this state for purposes of service of process; or
(ii) the appointment of the administrator as agent of the provider for purposes of service of process; and
(f) if the applicant is organized as a not-for-profit entity or is exempt from taxation, evidence of not-for-profit and tax-exempt status applicable to the applicant under the Internal Revenue Code, 26 U.S.C. Section 501.
Section 159. Section 13-42-109 is amended to read:
13-42-109
. Certification of registration -- Issuance or denial.(1) Except as otherwise provided in Subsections (2) and (3), the administrator shall issue a certificate of registration as a provider to a person that complies with Sections 13-42-105 and 13-42-106.
(2) The administrator may deny registration if:
(a) the application contains information that is materially erroneous or incomplete;
(b) an officer, director, or owner of the applicant has been convicted of a crime, or suffered a civil judgment, involving dishonesty or the violation of state or federal securities laws;
(c) the applicant or any of its officers, directors, or owners has defaulted in the payment of money collected for others; or
(d) the administrator finds that the financial responsibility, experience, character, or general fitness of the applicant or its owners, directors, employees, or agents does not warrant belief that the business will be operated in compliance with this chapter.
(3) The administrator shall deny registration if:
(a) the application is not accompanied by the fee established by the administrator in accordance with Section [63-38-3.2] 63J-1-303; or
(b) with respect to an applicant that is organized as a not-for-profit entity or has obtained tax-exempt status under the Internal Revenue Code, 26 U.S.C. Section 501, the applicant's board of directors is not independent of the applicant's employees and agents.
(4) Subject to adjustment of the dollar amount pursuant to Subsection 13-42-132(6), a board of directors is not independent for purposes of Subsection (3) if more than one-fourth of its members:
(a) are affiliates of the applicant, as defined in Subsection 13-42-102(2)(a) or 13-42-102(2)(b)(i), (ii), (iv), (v), (vi), or (vii); or
(b) after the date ten years before first becoming a director of the applicant, were employed by or directors of a person that received from the applicant more than $25,000 in either the current year or the preceding year.
Section 160. Section 13-42-110 is amended to read:
13-42-110
. Certificate of registration -- Timing.(1) The administrator shall approve or deny an initial registration as a provider within 120 days after an application is filed. In connection with a request pursuant to Subsection 13-42-106(19) for additional information, the administrator may extend the 120-day period for not more than 60 days. Within seven days after denying an application, the administrator, in a record, shall inform the applicant of the reasons for the denial.
(2) If the administrator denies an application for registration as a provider or does not act on an application within the time prescribed in Subsection (1), the applicant may appeal and request a hearing pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) Subject to Subsection 13-42-111(4) and Section 13-42-134, a registration as a provider is valid for one year.
Section 161. Section 13-42-111 is amended to read:
13-42-111
. Renewal of registration.(1) A provider must obtain a renewal of its registration annually.
(2) An application for renewal of registration as a provider must be in a form prescribed by the administrator, signed under penalty of perjury, and:
(a) be filed no fewer than 30 and no more than 60 days before the registration expires;
(b) be accompanied by the fee established by the administrator in accordance with Section [63-38-3.2] 63J-1-303 and the bond required by Section 13-42-113;
(c) contain the matter required for initial registration as a provider by Subsections 13-42-106(8) and (9) and a financial statement, audited by an accountant licensed to conduct audits, for the applicant's fiscal year immediately preceding the application;
(d) disclose any changes in the information contained in the applicant's application for registration or its immediately previous application for renewal, as applicable;
(e) supply evidence of insurance in an amount equal to the larger of $250,000 or the highest daily balance in the trust account required by Section 13-42-122 during the six-month period immediately preceding the application:
(i) against risks of dishonesty, fraud, theft, and other misconduct on the part of the applicant or a director, employee, or agent of the applicant;
(ii) issued by an insurance company authorized to do business in this state and rated at least A by a nationally recognized rating organization;
(iii) with no deductible;
(iv) payable to the applicant, the individuals who have agreements with the applicant, and this state, as their interests may appear; and
(v) not subject to cancellation by the applicant without the approval of the administrator;
(f) disclose the total amount of money received by the applicant pursuant to plans during the preceding 12 months from or on behalf of individuals who reside in this state and the total amount of money distributed to creditors of those individuals during that period;
(g) disclose, to the best of the applicant's knowledge, the gross amount of money accumulated during the preceding 12 months pursuant to plans by or on behalf of individuals who reside in this state and with whom the applicant has agreements; and
(h) provide any other information that the administrator reasonably requires to perform the administrator's duties under this section.
(3) Except for the information required by Subsections 13-42-106(7), (14), and (17) and the addresses required by Subsection 13-42-106(4), the administrator shall make the information in an application for renewal of registration as a provider available to the public.
(4) If a registered provider files a timely and complete application for renewal of registration, the registration remains effective until the administrator, in a record, notifies the applicant of a denial and states the reasons for the denial.
(5) If the administrator denies an application for renewal of registration as a provider, the applicant, within 30 days after receiving notice of the denial, may appeal and request a hearing pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. Subject to Section 13-42-134, while the appeal is pending the applicant shall continue to provide debt-management services to individuals with whom it has agreements. If the denial is affirmed, subject to the administrator's order and Section 13-42-134, the applicant shall continue to provide debt-management services to individuals with whom it has agreements until, with the approval of the administrator, it transfers the agreements to another registered provider or returns to the individuals all unexpended money that is under the applicant's control.
Section 162. Section 13-42-112 is amended to read:
13-42-112
. Registration in another state -- Rulemaking.(1) (a) Subject to rules made by the administrator, if a provider holds a license or certificate of registration in another state authorizing it to provide debt-management services, the provider may submit a copy of that license or certificate and the application for it instead of an application in the form prescribed by Subsection 13-42-105(1), Section 13-42-106, or Subsection 13-42-111(2).
(b) The administrator shall accept the application and the license or certificate from the other state as an application for registration as a provider or for renewal of registration as a provider, as appropriate, in this state if:
(i) the application in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this state;
(ii) the applicant provides the information required by Subsections 13-42-106(1), (3), (10), (12), and (13);
(iii) the applicant, under penalty of perjury, certifies that the information contained in the application is current or, to the extent it is not current, supplements the application to make the information current; and
(iv) the applicant files a surety bond or substitute in accordance with Section 13-42-113 or 13-42-114 that is solely payable or available to this state and to individuals who reside in this state.
(2) The administrator, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall make rules designating the states in which a provider may have a license or certificate that may be submitted to the administrator in compliance with this section.
Section 163. Section 13-42-132 is amended to read:
13-42-132
. Powers of administrator.(1) The administrator may act on its own initiative or in response to complaints and may receive complaints, take action to obtain voluntary compliance with this chapter, refer cases to the attorney general, and seek or provide remedies as provided in this chapter.
(2) The administrator may investigate and examine, in this state or elsewhere, by subpoena or otherwise, the activities, books, accounts, and records of a person that provides or offers to provide debt-management services, or a person to which a provider has delegated its obligations under an agreement or this chapter, to determine compliance with this chapter. Information that identifies individuals who have agreements with the provider shall not be disclosed to the public. In connection with the investigation, the administrator may:
(a) charge the person the reasonable expenses necessarily incurred to conduct the examination;
(b) require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated; and
(c) seek a court order authorizing seizure from a bank at which the person maintains a trust account required by Section 13-42-122, any or all money, books, records, accounts, and other property of the provider that is in the control of the bank and relates to individuals who reside in this state.
(3) The administrator may adopt rules to implement the provisions of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) The administrator may enter into cooperative arrangements with any other federal or state agency having authority over providers and may exchange with any of those agencies information about a provider, including information obtained during an examination of the provider.
(5) The administrator shall establish fees in accordance with Section [63-38-3.2] 63J-1-303 to be paid by providers for the expense of administering this chapter.
(6) The administrator, by rule, shall adopt dollar amounts instead of those specified in Sections 13-42-102, 13-42-105, 13-42-109, 13-42-113, 13-42-123, 13-42-133, and 13-42-135 to reflect inflation, as measured by the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers or, if that index is not available, another index adopted by rule by the administrator. The administrator shall adopt a base year and adjust the dollar amounts, effective on July 1 of each year, if the change in the index from the base year, as of December 31 of the preceding year, is at least 10%. The dollar amount must be rounded to the nearest $100, except that the amounts in Section 13-42-123 must be rounded to the nearest dollar.
(7) The administrator shall notify registered providers of any change in dollar amounts made pursuant to Subsection (6) and make that information available to the public.
Section 164. Section 13-42-134 is amended to read:
13-42-134
. Suspension, revocation, or nonrenewal of registration.(1) In this section, "insolvent" means:
(a) having generally ceased to pay debts in the ordinary course of business other than as a result of good-faith dispute;
(b) being unable to pay debts as they become due; or
(c) being insolvent within the meaning of the federal bankruptcy law, 11 U.S.C. Section 101 et seq.
(2) The administrator may suspend, revoke, or deny renewal of a provider's registration if:
(a) a fact or condition exists that, if it had existed when the registrant applied for registration as a provider, would have been a reason for denying registration;
(b) the provider has committed a material violation of this chapter or a rule or order of the administrator under this chapter;
(c) the provider is insolvent;
(d) the provider or an employee or affiliate of the provider has refused to permit the administrator to make an examination authorized by this chapter, failed to comply with Subsection 13-42-132(2)(b) within 15 days after request, or made a material misrepresentation or omission in complying with Subsection 13-42-132(2)(b); or
(e) the provider has not responded within a reasonable time and in an appropriate manner to communications from the administrator.
(3) If a provider does not comply with Subsection 13-42-122(6) or if the administrator otherwise finds that the public health or safety or general welfare requires emergency action, the administrator may order a summary suspension of the provider's registration, effective on the date specified in the order.
(4) If the administrator suspends, revokes, or denies renewal of the registration of a provider, the administrator may seek a court order authorizing seizure of any or all of the money in a trust account required by Section 13-42-122, books, records, accounts, and other property of the provider which are located in this state.
(5) If the administrator suspends or revokes a provider's registration, the provider may appeal and request a hearing pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 165. Section 13-43-203 is amended to read:
13-43-203
. Office of the Property Rights Ombudsman -- Duties.(1) The Office of the Property Rights Ombudsman shall:
(a) develop and maintain expertise in and understanding of takings, eminent domain, and land use law;
(b) assist state agencies and local governments in developing the guidelines required by [Title 63, Chapter 90a] Title 63L, Chapter 4, Constitutional Taking Issues;
(c) at the request of a state agency or local government, assist the state agency or local government, in analyzing actions with potential takings implications or other land use issues;
(d) advise real property owners who have a legitimate potential or actual takings claim against a state or local government entity or have questions about takings, eminent domain, and land use law;
(e) identify state or local government actions that have potential takings implications and, if appropriate, advise those state or local government entities about those implications; and
(f) provide information to private citizens, civic groups, government entities, and other interested parties about takings, eminent domain, and land use law and their rights and responsibilities under the takings, eminent domain, or land use laws through seminars and publications, and by other appropriate means.
(2) The Office of the Property Rights Ombudsman may not represent private property owners, state agencies, or local governments in court or in adjudicative proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) No member of the Office of the Property Rights Ombudsman nor a neutral third party rendering an advisory opinion under Section 13-43-205 or 13-43-206, may be compelled to testify in a civil action filed concerning the subject matter of any review, mediation, or arbitration by, or arranged through, the office.
(4) (a) Except as provided in Subsection (4)(b), evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action.
(b) Subsection (4)(a) does not apply to:
(i) actions brought under authority of Title 78, Chapter 6, Small Claims Courts;
(ii) a judicial confirmation or review of the arbitration itself as authorized in Title 78, Chapter 31a, Utah Uniform Arbitration Act;
(iii) actions for de novo review of an arbitration award or issue brought under the authority of Subsection 13-43-204(3)(a)(i); or
(iv) advisory opinions provided for in Sections 13-43-205 and 13-43-206.
Section 166. Section 13-43-204 is amended to read:
13-43-204
. Office of Property Rights Ombudsman -- Arbitration or mediation of takings or eminent domain disputes.(1) If requested by the private property owner and otherwise appropriate, the Office of the Property Rights Ombudsman shall mediate, or conduct or arrange arbitration for, disputes between private property owners and government entities that involve:
(a) takings or eminent domain issues;
(b) actions for eminent domain under Title 78, Chapter 34, Eminent Domain; or
(c) disputes about relocation assistance under Title 57, Chapter 12, Utah Relocation Assistance Act.
(2) If arbitration or mediation is requested by a private property owner under this section, Section 57-12-14 or 78-34-21, and arranged by the Office of the Property Rights Ombudsman, the government entity or condemning entity shall participate in the mediation or arbitration as if the matter were ordered to mediation or arbitration by a court.
(3) (a) (i) In conducting or arranging for arbitration under Subsection (1), the Office of the Property Rights Ombudsman shall follow the procedures and requirements of Title 78, Chapter 31a, Utah Uniform Arbitration Act.
(ii) In applying Title 78, Chapter 31a, Utah Uniform Arbitration Act, the arbitrator and parties shall treat the matter as if:
(A) it were ordered to arbitration by a court; and
(B) the Office of the Property Rights Ombudsman or other arbitrator chosen as provided for in this section was appointed as arbitrator by the court.
(iii) For the purpose of an arbitration conducted under this section, if the dispute to be arbitrated is not already the subject of legal action, the district court having jurisdiction over the county where the private property involved in the dispute is located is the court referred to in Title 78, Chapter 31a, Utah Uniform Arbitration Act.
(iv) An arbitration award under this chapter may not be vacated under the provisions of Subsection 78-31a-124(1)(e) because of the lack of an arbitration agreement between the parties.
(b) The Office of the Property Rights Ombudsman shall issue a written statement declining to arbitrate or to appoint an arbitrator when, in the opinion of the Office of the Property Rights Ombudsman:
(i) the issues are not ripe for review;
(ii) assuming the alleged facts are true, no cause of action exists under United States or Utah law;
(iii) all issues raised are beyond the scope of the Office of the Property Rights Ombudsman's statutory duty to review; or
(iv) the arbitration is otherwise not appropriate.
(c) (i) The Office of the Property Rights Ombudsman shall appoint another person to arbitrate a dispute when:
(A) either party objects to the Office of the Property Rights Ombudsman serving as the arbitrator and agrees to pay for the services of another arbitrator;
(B) the Office of the Property Rights Ombudsman declines to arbitrate the dispute for a reason other than those stated in Subsection (3)(b) and one or both parties are willing to pay for the services of another arbitrator; or
(C) the Office of the Property Rights Ombudsman determines that it is appropriate to appoint another person to arbitrate the dispute with no charge to the parties for the services of the appointed arbitrator.
(ii) In appointing another person to arbitrate a dispute, the Office of the Property Rights Ombudsman shall appoint an arbitrator who is agreeable to:
(A) both parties; or
(B) the Office of the Property Rights Ombudsman and the party paying for the arbitrator.
(iii) The Office of the Property Rights Ombudsman may, on its own initiative or upon agreement of both parties, appoint a panel of arbitrators to conduct the arbitration.
(iv) The Department of Commerce may pay an arbitrator per diem and reimburse expenses incurred in the performance of the arbitrator's duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(d) In arbitrating a dispute, the arbitrator shall apply the relevant statutes, case law, regulations, and rules of Utah and the United States in conducting the arbitration and in determining the award.
(e) The property owner and government entity may agree in advance of arbitration that the arbitration is binding and that no de novo review may occur.
(f) Arbitration by or through the Office of the Property Rights Ombudsman is not necessary before bringing legal action to adjudicate any claim.
(g) The lack of arbitration by or through the Office of the Property Rights Ombudsman does not constitute, and may not be interpreted as constituting, a failure to exhaust available administrative remedies or as a bar to bringing legal action.
(h) Arbitration under this section is not subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, or Title 78, Chapter 31b, Alternative Dispute Resolution Act.
(i) Within 30 days after an arbitrator issues a final award, and except as provided in Subsection (3)(e), any party may submit the award, or any issue upon which the award is based, to the district court for de novo review.
(4) The filing with the Office of the Property Rights Ombudsman of a request for mediation or arbitration of a constitutional taking issue does not stay any county or municipal land use decision, including the decision of a board of adjustment.
(5) Members of the Office of the Property Rights Ombudsman may not be compelled to testify in a civil action filed concerning the subject matter of any review, mediation, or arbitration by the Office of the Property Rights Ombudsman.
Section 167. Section 13-43-206 is amended to read:
13-43-206
. Advisory opinion -- Process.(1) A request for an advisory opinion under Section 13-43-205 shall be:
(a) filed with the Office of the Property Rights Ombudsman; and
(b) accompanied by a filing fee of $150.
(2) The Office of the Property Rights Ombudsman may establish policies providing for partial fee waivers for a person who is financially unable to pay the entire fee.
(3) A person requesting an advisory opinion need not exhaust administrative remedies, including remedies described under Section 10-9a-801 or 17-27a-801, before requesting an advisory opinion.
(4) The Office of the Property Rights Ombudsman shall:
(a) deliver notice of the request to opposing parties indicated in the request;
(b) inquire of all parties if there are other necessary parties to the dispute; and
(c) deliver notice to all necessary parties.
(5) If a governmental entity is an opposing party, the Office of the Property Rights Ombudsman shall deliver the request in the manner provided for in Section [63-30d-301] 63G-7-301.
(6) (a) The Office of the Property Rights Ombudsman shall promptly determine if the parties can agree to a neutral third party to issue an advisory opinion.
(b) If no agreement can be reached within four business days after notice is delivered pursuant to Subsections (4) and (5), the Office of the Property Rights Ombudsman shall appoint a neutral third party to issue an advisory opinion.
(7) All parties that are the subject of the request for advisory opinion shall:
(a) share equally in the cost of the advisory opinion; and
(b) provide financial assurance for payment that the neutral third party requires.
(8) The neutral third party shall comply with the provisions of Section 78-31a-109, and shall promptly:
(a) seek a response from all necessary parties to the issues raised in the request for advisory opinion;
(b) investigate and consider all responses; and
(c) issue a written advisory opinion within 15 business days after the appointment of the neutral third party under Subsection (6)(b), unless:
(i) the parties agree to extend the deadline; or
(ii) the neutral third party determines that the matter is complex and requires additional time to render an opinion, which may not exceed 30 calendar days.
(9) An advisory opinion shall include a statement of the facts and law supporting the opinion's conclusions.
(10) (a) Copies of any advisory opinion issued by the Office of the Property Rights Ombudsman shall be delivered as soon as practicable to all necessary parties.
(b) A copy of the advisory opinion shall be delivered to the government entity in the manner provided for in Section [63-30d-401] 63G-7-401.
(11) An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to, nor admissible as evidence in, a dispute involving land use law except as provided in Subsection (12).
(12) (a) If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court's resolution.
(b) Nothing in this Subsection (12) is intended to create any new cause of action under land use law.
(13) Unless filed by the local government, a request for an advisory opinion under Section 13-43-205 does not stay the progress of a land use application, or the effect of a land use decision.
Section 168. Section 14-1-18 is amended to read:
14-1-18
. Definitions -- Application of Procurement Code to payment and performance bonds.(1) (a) For purposes of this chapter, "political subdivision" means any county, city, town, school district, local district, special service district, community development and renewal agency, public corporation, institution of higher education of the state, public agency of any political subdivision, and, to the extent provided by law, any other entity which expends public funds for construction.
(b) For purposes of applying Section [63-56-504] 63G-6-505 to a political subdivision, "state" includes "political subdivision."
(2) Section [63-56-504] 63G-6-505 applies to all contracts for the construction, alteration, or repair of any public building or public work of the state or a political subdivision of the state.
Section 169. Section 15-9-103 is amended to read:
15-9-103
. Administration -- Rulemaking -- Service of process -- Athlete Agents Licensing Board.(1) (a) This chapter shall be administered by the Division of Occupational and Professional Licensing and is subject to the requirements of Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, so long as the requirements of Title 58, Chapter 1, are not inconsistent with the requirements of this chapter.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules necessary to implement the provisions of this chapter.
(2) By acting as an athlete agent in this state, a nonresident individual appoints the director of the division as the individual's agent for service of process in any civil action in this state related to the individual's acting as an athlete agent in this state.
(3) (a) There is created the Athlete Agents Licensing Board consisting of four athlete agents and one member of the general public.
(b) The Athlete Agents Licensing Board shall be appointed and serve in accordance with Section 58-1-201.
(c) The duties and responsibilities of the Athlete Agents Licensing Board are in accordance with Sections 58-1-202 and 58-1-203.
(d) In addition, the Athlete Agents Licensing Board shall designate one of its members on a permanent or rotating basis to:
(i) assist the division in reviewing complaints concerning the unlawful or unprofessional conduct of a licensee; and
(ii) advise the division in its investigation of these complaints.
(e) A member of the Athlete Agents Licensing Board who has, under Subsection (3)(d), reviewed a complaint or advised in its investigation may be disqualified from participating with the board when the board serves as a presiding officer in an adjudicative proceeding concerning the complaint.
Section 170. Section 15-9-105 is amended to read:
15-9-105
. Registration as an athlete agent -- Form -- Requirements.(1) An applicant for registration shall submit an application for registration to the division in a form prescribed by the division. An application filed under this section is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. The application must be in the name of an individual and, except as otherwise provided in Subsection (2), signed or otherwise authenticated by the applicant under penalty of perjury and state or contain:
(a) the name of the applicant and the address of the applicant's principal place of business;
(b) the name of the applicant's business or employer, if applicable;
(c) any business or occupation engaged in by the applicant for the five years immediately preceding the date of submission of the application;
(d) a description of the applicant's:
(i) formal training as an athlete agent;
(ii) practical experience as an athlete agent; and
(iii) educational background relating to the applicant's activities as an athlete agent;
(e) the names and addresses of three individuals not related to the applicant who are willing to serve as references;
(f) the name, sport, and last-known team for each individual for whom the applicant acted as an athlete agent during the five years next preceding the date of submission of the application;
(g) the names and addresses of all persons who are:
(i) with respect to the athlete agent's business if it is not a corporation, the partners, members, officers, managers, associates, or profit-sharers of the business; and
(ii) with respect to a corporation employing the athlete agent, the officers, directors, and any shareholder of the corporation having an interest of 5% or greater;
(h) whether the applicant or any person named pursuant to Subsection (1)(g) has been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony, and identify the crime;
(i) whether there has been any administrative or judicial determination that the applicant or any person named pursuant to Subsection (1)(g) has made a false, misleading, deceptive, or fraudulent representation;
(j) any instance in which the conduct of the applicant or any person named pursuant to Subsection (1)(g) resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event on a student-athlete or educational institution;
(k) any sanction, suspension, or disciplinary action taken against the applicant or any person named pursuant to Subsection (1)(g) arising out of occupational or professional conduct; and
(l) whether there has been any denial of an application for, suspension or revocation of, or refusal to renew, the registration or licensure of the applicant or any person named pursuant to Subsection (1)(g) as an athlete agent in any state.
(2) An individual who has submitted an application for, and holds a certificate of, registration or licensure as an athlete agent in another state, may submit a copy of the application and certificate in lieu of submitting an application in the form prescribed pursuant to Subsection (1). The division shall accept the application and the certificate from the other state as an application for registration in this state if the application to the other state:
(a) was submitted in the other state within six months immediately preceding the submission of the application in this state and the applicant certifies that the information contained in the application is current;
(b) contains information substantially similar to or more comprehensive than that required in an application submitted in this state; and
(c) was signed by the applicant under penalty of perjury.
Section 171. Section 15-9-106 is amended to read:
15-9-106
. Certificate of registration -- Issuance or denial -- Renewal.(1) Except as otherwise provided in Subsection (2), the division shall issue a certificate of registration to an individual who complies with Subsection 15-9-105(1) or whose application has been accepted under Subsection 15-9-105(2).
(2) The division may refuse to issue a certificate of registration if the division determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant's fitness to act as an athlete agent. In making the determination, the division may consider whether the applicant has:
(a) been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony;
(b) made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent;
(c) engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity;
(d) engaged in conduct prohibited by Section 15-9-114;
(e) had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state;
(f) engaged in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student-athlete or educational institution; or
(g) engaged in conduct that significantly, adversely reflects on the applicant's credibility, honesty, or integrity.
(3) In making a determination under Subsection (2), the division shall consider:
(a) how recently the conduct occurred;
(b) the nature of the conduct and the context in which it occurred; and
(c) any other relevant conduct of the applicant.
(4) An athlete agent may apply to renew a registration by submitting an application for renewal in a form prescribed by the division. An application filed under this section is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. The application for renewal must be signed by the applicant under penalty of perjury and must contain current information on all matters required in an original registration.
(5) An individual who has submitted an application for renewal of registration or licensure in another state, in lieu of submitting an application for renewal in the form prescribed pursuant to Subsection (4), may file a copy of the application for renewal and a valid certificate of registration or licensure from the other state. The division shall accept the application for renewal from the other state as an application for renewal in this state if the application to the other state:
(a) was submitted in the other state within six months immediately preceding the filing in this state and the applicant certifies the information contained in the application for renewal is current;
(b) contains information substantially similar to or more comprehensive than that required in an application for renewal submitted in this state; and
(c) was signed by the applicant under penalty of perjury.
(6) A certificate of registration or a renewal of a registration is valid for two years.
Section 172. Section 15-9-107 is amended to read:
15-9-107
. Suspension, revocation, or refusal to renew registration.(1) The division may suspend, revoke, or refuse to renew a registration for conduct that would have justified denial of registration under Subsection 15-9-106(2).
(2) The division may suspend, revoke, or refuse to renew a certificate of registration or licensure only after proper notice and an opportunity for a hearing. [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, applies to this chapter.
Section 173. Section 15-9-109 is amended to read:
15-9-109
. Registration and renewal fees.(1) An application for registration or renewal of registration must be accompanied by a fee in an amount determined by the division in accordance with Section [63-38-3.2] 63J-1-303.
(2) The division shall establish fees for:
(a) an initial application for registration;
(b) an application for registration based upon a certificate of registration or licensure issued by another state;
(c) an application for renewal of registration; and
(d) an application for renewal of registration based upon an application for renewal of registration or licensure submitted in another state.
Section 174. Section 16-6a-107 is amended to read:
16-6a-107
. Fees.(1) Unless otherwise provided by statute, the division shall charge and collect a fee for services established by the division in accordance with Section [63-38-3.2] 63J-1-303 including fees:
(a) for furnishing a certified copy of any document, instrument, or paper relating to a domestic or foreign nonprofit corporation; and
(b) for the certificate and affixing the seal to a certified copy described in Subsection (1)(a).
(2) (a) The division shall provide expedited, 24-hour processing of any item under this section upon request.
(b) The division shall charge and collect additional fees established by the division in accordance with Section [63-38-3.2] 63J-1-303 for expedited service provided under Subsection (2)(a).
(3) (a) The division shall charge and collect a fee determined by the division in accordance with Section [63-38-3.2] 63J-1-303 at the time of any service of process on the director of the division as resident agent of a domestic or foreign nonprofit corporation.
(b) The fee paid under Subsection (3)(a) may be recovered as taxable costs by the party to the suit or action causing the service to be made if the party prevails in the suit or action.
Section 175. Section 16-6a-111 is amended to read:
16-6a-111
. Appeal from division's refusal to file document.If the division refuses to file a document delivered to it for filing, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the following may appeal the refusal to the executive director:
(1) the domestic or foreign nonprofit corporation for which the filing was requested; or
(2) the representative of the domestic or foreign nonprofit corporation for which filing was requested.
Section 176. Section 16-6a-1413 is amended to read:
16-6a-1413
. Appeal from denial of reinstatement.(1) If the division denies a nonprofit corporation's application for reinstatement following administrative dissolution under Section 16-6a-1411, the division shall mail to the nonprofit corporation in the manner provided in Subsection 16-6a-1411(6) written notice:
(a) setting forth the reasons for denying the application; and
(b) stating that the nonprofit corporation has the right to appeal the division's determination to the executive director as provided in Subsection (2).
(2) If the division denies a nonprofit corporation's application for reinstatement following administrative dissolution, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the following may appeal the denial to the executive director:
(a) the nonprofit corporation for which the reinstatement was requested; or
(b) the representative of the nonprofit corporation for which reinstatement was requested.
Section 177. Section 16-6a-1502 is amended to read:
16-6a-1502
. Consequences of conducting affairs without authority.(1) A foreign nonprofit corporation, its successor, or anyone acting on its behalf, conducting affairs in this state without authority may not be permitted to maintain a proceeding in any court in this state until an application for authority to conduct affairs is filed.
(2) (a) A foreign nonprofit corporation or successor that conducts affairs in this state without authority shall be liable to this state in an amount equal to the sum of:
(i) all fees imposed by this chapter or prior law that would have been paid for all years or portions of years during which it conducted affairs in this state without authority; and
(ii) all penalties imposed by the division for failure to pay the fees described in Subsection (2)(a)(i).
(b) An application for authority to conduct affairs may not be filed until payment of the amounts due under this Subsection (2) is made.
(3) (a) A court may stay a proceeding commenced by a foreign nonprofit corporation, its successor, or assignee until it determines whether the foreign nonprofit corporation, its successor, or assignee is required to file an application for authority to conduct affairs.
(b) If the court determines that a foreign nonprofit corporation, its successor, or assignee is required to file an application for authority to conduct affairs, the court may further stay the proceeding until the required application for authority to conduct affairs has been filed with the division.
(4) (a) A foreign nonprofit corporation that conducts affairs in this state without authority is subject to a civil penalty, payable to this state, of $100 for each day in which it transacts business in this state without authority.
(b) Notwithstanding Subsection (4)(a), the civil penalty imposed under Subsection (4)(a) may not exceed a total of $5,000 for each year.
(c) The following are subject to a civil penalty payable to the state not exceeding $1,000:
(i) each officer of a foreign nonprofit corporation who authorizes, directs, or participates in the conducting of affairs in this state without authority; and
(ii) each agent of a foreign nonprofit corporation who transacts business in this state on behalf of a foreign nonprofit corporation that is not authorized.
(d) The division may make rules to carry out the provisions of this Subsection (4), including procedures to request the division to abate for reasonable cause a penalty imposed under this Subsection (4).
(e) If the division imposes a civil penalty under this Subsection (4) on a foreign nonprofit corporation, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the following may appeal the civil penalty to the executive director:
(i) the foreign nonprofit corporation; or
(ii) the representative of the foreign nonprofit corporation.
(5) (a) The civil penalties set forth in Subsection (4) may be recovered in an action brought:
(i) in an appropriate court in Salt Lake County; or
(ii) in any other county in this state in which the foreign nonprofit corporation:
(A) has a registered, principal, or business office; or
(B) has conducted affairs.
(b) Upon a finding by the court that a foreign nonprofit corporation or any of its officers or agents have conducted affairs in this state in violation of this part, in addition to or instead of a civil penalty, the court shall issue an injunction restraining:
(i) the further conducting of affairs of the foreign nonprofit corporation; and
(ii) the further exercise of any corporate rights and privileges in this state.
(c) Upon issuance of the injunction described in Subsection (5)(b), the foreign nonprofit corporation shall be enjoined from conducting affairs in this state until:
(i) all civil penalties have been paid, plus any interest and court costs assessed by the court; and
(ii) the foreign nonprofit corporation has otherwise complied with the provisions of this part.
(6) Notwithstanding Subsections (1) and (2), the failure of a foreign nonprofit corporation to have authority to conduct affairs in this state does not:
(a) impair the validity of its corporate acts; or
(b) prevent the foreign nonprofit corporation from defending any proceeding in this state.
Section 178. Section 16-6a-1517 is amended to read:
16-6a-1517
. Appeal from revocation.If the division revokes the authority of a foreign nonprofit corporation to conduct affairs in this state, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the following may appeal the refusal to the executive director:
(1) the foreign nonprofit corporation; or
(2) the representative of the foreign nonprofit corporation.
Section 179. Section 16-7-11 is amended to read:
16-7-11
. Fees for filing documents and issuing certificates.The division shall charge and collect a fee determined by it pursuant to Section [63-38-3.2] 63J-1-303 for:
(1) filing articles of incorporation of a corporation sole and issuing a certificate of incorporation;
(2) filing articles of amendment and issuing a certificate of amendment;
(3) issuing each additional certificate of incorporation or amendment;
(4) filing a certificate of authorized agent and issuing the agent's certificate;
(5) filing a revocation of authority;
(6) furnishing a certified copy of any document, instrument, or paper relating to a corporation sole and affixing its seal;
(7) issuing a certificate of dissolution; and
(8) issuing a certificate of merger or consolidation.
Section 180. Section 16-10a-122 is amended to read:
16-10a-122
. Fees.Unless otherwise provided by statute, the division shall charge and collect fees for services as provided in Section [63-38-3.2] 63J-1-303.
Section 181. Section 16-10a-1423 is amended to read:
16-10a-1423
. Appeal from denial of reinstatement.If the division denies a corporation's application for reinstatement under Section 16-10a-1422 following administrative dissolution, the division shall mail to the corporation in the manner provided in Subsection 16-10a-1421(6) written notice:
(1) setting forth the reasons for denying the application; and
(2) stating that the corporation has the right to appeal the division's determination to the executive director of the Department of Commerce in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 182. Section 16-12-3 is amended to read:
16-12-3
. Declaration of trust -- Filing fee.An original and one copy of the declaration of trust of a real estate investment trust shall be delivered to the Division of Corporations and Commercial Code, and he shall endorse on the original and one copy the word "filed." The Division of Corporations and Commercial Code shall file the original in his office, and shall return the copy to the trustees or their representatives. The Division of Corporations and Commercial Code may charge a fee pursuant to Section [63-38-3.2] 63J-1-303 for the filing.
Section 183. Section 16-13-12 is amended to read:
16-13-12
. Licensing, supervision, and examination by commissioner of financial institutions -- Fees.A development corporation shall be licensed, supervised, and examined by the commissioner of financial institutions and shall make such report of its condition from time to time as the commissioner shall require. A development corporation shall pay a fee determined by the commissioner pursuant to Section [63-38-3.2] 63J-1-303 for a license and for each examination.
Section 184. Section 16-15-105 is amended to read:
16-15-105
. Filing of certificate -- Fees.(1) A business trust is registered when two copies of the certificate of registration are filed with the division. The documents to be filed shall be true copies made by photographic, xerographic, electronic, or other process that provides similar copy accuracy of a document that has been properly executed.
(2) The division shall endorse the original and one copy of a certificate of registration and:
(a) file the original in the division office; and
(b) return the copy to the trustee or the trustee's representative.
(3) The division may charge a fee in accordance with Section [63-38-3.2] 63J-1-303 for the filing.
Section 185. Section 16-15-107 is amended to read:
16-15-107
. Expiration of filing -- Notice.(1) A filing under this chapter shall be effective for a period of three years from the date of filing plus the notice period provided in Subsection (2).
(2) (a) If no new filing is made by or on behalf of the trust who made the original filing within three years of the date of filing, the division shall send a notice by regular mail, postage prepaid, to the address shown for the registered office in the filing indicating that it will expire 30 days after the division mailed the notice.
(b) If no new filing is made within 30 days after the date of the division mailing the notice, the business trust's registration expires.
(3) If the registration of a business trust has expired or has been canceled for failure to maintain a registered agent, the business trust may not conduct business in this state until it has newly registered with the division under this chapter.
(4) The division may charge a fee in accordance with Section [63-38-3.2] 63J-1-303 for the renewal of a registration.
Section 186. Section 16-15-108 is amended to read:
16-15-108
. When amendments are required.(1) An amended certificate shall be filed with the division not later than 30 days after any change in:
(a) any person acting as a trustee of the trust, or the address of any trustee;
(b) the registered agent of the trust;
(c) the registered office of the business trust; or
(d) in any information required to be filed with the division under this chapter.
(2) The amended certificate shall be signed by each trustee of the business trust and filed in the same manner as a certificate of registration under Section 16-15-105.
(3) The division may charge a fee in accordance with Section [63-38-3.2] 63J-1-303 for amending a certificate of registration.
Section 187. Section 17-15-24 is amended to read:
17-15-24
. Procurement -- Use of recycled goods.The procurement officer or other person responsible for purchasing supplies for each county and each entity created by a county or joined by a county shall:
(1) maintain for reference a copy of the current listing of recycled items available on a state contract as issued by the chief procurement officer appointed under Section [63-56-204] 63G-6-204; and
(2) give recycled items consideration when inviting bids and purchasing supplies, in compliance with Section 11-37-101.
Section 188. Section 17-16-21 is amended to read:
17-16-21
. Fees of county officers.(1) As used in this section, "county officer" means all of the county officers enumerated in Section 17-53-101 except county recorders, county constables, and county sheriffs.
(2) (a) Each county officer shall collect, in advance, for exclusive county use and benefit:
(i) all fees established by the county legislative body under Section 17-53-211; and
(ii) any other fees authorized or required by law.
(b) As long as the displaced homemaker program is authorized by Section 35A-3-114, the county clerk shall:
(i) assess $20 in addition to whatever fee for a marriage license is established under authority of this section; and
(ii) transmit $20 from each marriage license fee to the Division of Finance to be credited to the displaced homemaker program.
(c) As long as the Children's Legal Defense Account is authorized by Section [63-63a-8] 51-9-408, the county clerk shall:
(i) assess $10 in addition to whatever fee for a marriage license is established under authority of this section and in addition to the $20 assessed for the displaced homemaker program; and
(ii) transmit $10 from each marriage license fee to the Division of Finance for deposit in the Children's Legal Defense Account.
(3) This section does not apply to any fees currently being assessed by the state but collected by county officers.
Section 189. Section 17-16a-4 is amended to read:
17-16a-4
. Prohibited use of official position -- Exception.(1) Except as provided in Subsection (3), it is an offense for an elected or appointed officer, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to:
(a) disclose confidential information acquired by reason of his official position or use that information to secure special privileges or exemptions for himself or others;
(b) use or attempt to use his official position to secure special privileges for himself or others; or
(c) knowingly receive, accept, take, seek or solicit, directly or indirectly, any gift or loan for himself or another if the gift or loan tends to influence him in the discharge of his official duties.
(2) This section is inapplicable to:
(a) an occasional nonpecuniary gift having a value of less than $50;
(b) an award publicly presented;
(c) any bona fide loan made in the ordinary course of business; or
(d) political campaign contributions actually used in a political campaign.
(3) A member of a county legislative body who is also a member of the governing board of a provider of mental health or substance abuse services under contract with the county does not commit an offense under Subsection (1)(a) or (b) by discharging, in good faith, the duties and responsibilities of each position, if the county legislative body member does not participate in the process of selecting the mental health or substance abuse service provider.
Section 190. Section 17-21-17 is amended to read:
17-21-17
. Prohibited acts.(1) Upon acceptance of an instrument entitled to be recorded, the recorder may not:
(a) record the instrument in any manner other than the manner required by this chapter; or
(b) alter, change, obliterate, or insert any new matter in any instrument of record.
(2) A recorder does not violate this section by:
(a) denying access to:
(i) an instrument of record that has been classified as private under Section [63-2-302] 63G-2-302; or
(ii) a portion of an instrument of record that has been classified as private under Section [63-2-302] 63G-2-302; or
(b) placing an endorsement, reference, or other note on a document in the course of the recorder's work.
Section 191. Section 17-21-19 is amended to read:
17-21-19
. Records open to inspection -- Copies.(1) Unless otherwise classified as private under Section [63-2-302] 63G-2-302, all instruments of record and all indexes required by this chapter are open to public inspection during office hours.
(2) Upon payment of the applicable fee, a person may obtain copies of a public record.
Section 192. Section 17-27a-203 is amended to read:
17-27a-203
. Notice of intent to prepare a general plan or comprehensive general plan amendments in certain counties.(1) Before preparing a proposed general plan or a comprehensive general plan amendment, each county of the first or second class shall provide ten calendar days notice of its intent to prepare a proposed general plan or a comprehensive general plan amendment to:
(a) each affected entity;
(b) the Automated Geographic Reference Center created in Section 63F-1-506;
(c) the association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which the county is a member; and
(d) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202.
(2) Each notice under Subsection (1) shall:
(a) indicate that the county intends to prepare a general plan or a comprehensive general plan amendment, as the case may be;
(b) describe or provide a map of the geographic area that will be affected by the general plan or amendment;
(c) be sent by mail, e-mail, or other effective means;
(d) invite the affected entities to provide information for the county to consider in the process of preparing, adopting, and implementing a general plan or amendment concerning:
(i) impacts that the use of land proposed in the proposed general plan or amendment may have; and
(ii) uses of land within the county that the affected entity is considering that may conflict with the proposed general plan or amendment; and
(e) include the address of an Internet website, if the county has one, and the name and telephone number of a person where more information can be obtained concerning the county's proposed general plan or amendment.
Section 193. Section 17-27a-402 is amended to read:
17-27a-402
. Information and technical assistance from the state.Each state official, department, and agency shall:
(1) promptly deliver any data and information requested by a county, unless the disclosure is prohibited by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(2) furnish any other technical assistance and advice that they have available to the county without additional cost to the county.
Section 194. Section 17-43-202 is amended to read:
17-43-202
. Local substance abuse authorities -- Requirements prior to distributing public funds.(1) Each local substance abuse authority shall award all public funds in compliance with:
(a) the requirements of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; or
(b) a county procurement ordinance that requires similar procurement practices.
(2) If all initial bids on the project are rejected, the authority shall publish a new invitation to bid. If no satisfactory bid is received by the authority when the bids received from the second invitation are opened, the authority may execute a contract without requiring competitive bidding.
(3) A local substance abuse authority need not comply with the procurement provisions of this section when it disburses public funds to another political subdivision of the state or an institution of higher education of the state.
(4) Each contract awarded by a local substance abuse authority shall be for a fixed amount and limited period. A contract may be modified due to changes in available funding for the same contract purpose without competition.
Section 195. Section 17-43-302 is amended to read:
17-43-302
. Local mental health authorities -- Requirements prior to distributing public funds.(1) Each local mental health authority shall award all public funds by complying with the requirements of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, or by complying with a county procurement ordinance which requires similar procurement practices.
(2) If all initial bids on the project are rejected, the authority shall publish a new invitation to bid in the manner specified in this section. If no satisfactory bid is received by the authority when the bids received from the second invitation are opened, the authority may execute a contract without requiring competitive bidding.
(3) The local mental health authority need not comply with the procurement provisions of this section when it disburses public funds to another political subdivision of the state or an institution of higher education of the state.
(4) Each contract awarded by a local mental health authority shall be for a fixed amount and limited period. A contract may be modified due to changes in available funding for the same contract purpose without competition.
Section 196. Section 17-50-302 is amended to read:
17-50-302
. General county powers.(1) A county may:
(a) as prescribed by statute, levy, assess, and collect taxes, borrow money, and levy and collect special assessments for benefits conferred; and
(b) provide services, exercise powers, and perform functions that are reasonably related to the safety, health, morals, and welfare of their inhabitants, except as limited or prohibited by statute.
(2) (a) A county may:
(i) sue and be sued;
(ii) subject to Subsection (2)(c), acquire real property by tax sale, purchase, lease, contract, or gift, and hold the real property as necessary and proper for county purposes;
(iii) (A) subject to Subsection (2)(b), acquire real property by condemnation, as provided in Title 78, Chapter 34, Eminent Domain; and
(B) hold the real property as necessary and proper for county purposes;
(iv) as may be necessary to the exercise of its powers, acquire personal property by purchase, lease, contract, or gift, and hold such personal property; and
(v) manage and dispose of its property as the interests of its inhabitants may require.
(b) (i) For purposes of Subsection (2)(a)(iii), water rights that are not appurtenant to land do not constitute real property that may be acquired by the county through condemnation.
(ii) Nothing in Subsection (2)(a)(iii) may be construed to authorize a county to acquire by condemnation the rights to water unless the land to which those water rights are appurtenant is acquired by condemnation.
(c) (i) Except as provided in Subsection (2)(c)(iv), each county intending to acquire real property for the purpose of expanding the county's infrastructure or other facilities used for providing services that the county offers or intends to offer shall provide written notice, as provided in this Subsection (2)(c), of its intent to acquire the property if:
(A) the property is located:
(I) outside the boundaries of the unincorporated area of the county; and
(II) in a county of the first or second class; and
(B) the intended use of the property is contrary to:
(I) the anticipated use of the property under the general plan of the county in whose unincorporated area or the municipality in whose boundaries the property is located; or
(II) the property's current zoning designation.
(ii) Each notice under Subsection (2)(c)(i) shall:
(A) indicate that the county intends to acquire real property;
(B) identify the real property; and
(C) be sent to:
(I) each county in whose unincorporated area and each municipality in whose boundaries the property is located; and
(II) each affected entity.
(iii) A notice under this Subsection (2)(c) is a protected record as provided in Subsection [63-2-304] 63G-2-305(7).
(iv) (A) The notice requirement of Subsection (2)(c)(i) does not apply if the county previously provided notice under Section 17-27a-203 identifying the general location within the municipality or unincorporated part of the county where the property to be acquired is located.
(B) If a county is not required to comply with the notice requirement of Subsection (2)(c)(i) because of application of Subsection (2)(c)(iv)(A), the county shall provide the notice specified in Subsection (2)(c)(i) as soon as practicable after its acquisition of the real property.
Section 197. Section 17-50-401 is amended to read:
17-50-401
. Review of claims by county executive -- Auditor review -- Attorney review -- Claim requirements -- Approval or disapproval of claim -- Written explanation of claim process.(1) Subject to Subsection (3), each county executive shall review each claim against the county and disapprove or, if payment appears to the county executive to be just, lawful, and properly due and owing, approve the claim.
(2) Upon receiving a notice of claim under Section [63-30d-401] 63G-7-401, the county clerk shall deliver the notice of claim to the county executive.
(3) (a) The county executive shall forward all claims regarding liability to the county attorney, or, in a county that has a district attorney but not a county attorney, to the district attorney for the attorney's review and recommendation to the county executive regarding liability and payment.
(b) Except as provided in Section 17-50-405, the county executive shall forward all claims requesting payment for goods or services to the county auditor for the auditor's review and recommendation to the county executive.
(4) Each claim for goods or services against a county shall:
(a) itemize the claim, giving applicable names, dates, and particular goods provided or services rendered;
(b) if the claim is for service of process, state the character of process served, upon whom served, the number of days engaged, and the number of miles traveled;
(c) be duly substantiated as to its correctness and as to the fact that it is justly due;
(d) if the claim is for materials furnished, state to whom the materials were furnished, by whom ordered, and the quantity and price agreed upon; and
(e) be presented to the county executive within a year after the last item of the account or credit accrued.
(5) If the county executive refuses to hear or consider a claim because it is not properly made out, the county executive shall cause notice of the refusal to be given to the claimant or the claimant's agent and shall allow a reasonable amount of time for the claim to be properly itemized and substantiated.
(6) Each county shall prepare and make available to a person submitting or intending to submit a claim under this part a written explanation, in simple and easy to understand language, of how to submit a claim to the county and of the county's process for receiving, reviewing, and deciding a claim.
(7) Nothing in this section may be construed to modify the requirements of Section [63-30d-401] 63G-7-401.
Section 198. Section 17-53-225 is amended to read:
17-53-225
. County legislative body may adopt Utah Procurement Code -- Retention of records.(1) A county legislative body may adopt any or all of the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, or the rules promulgated pursuant to that code.
(2) Whenever any county is required by law to receive bids for purchases, construction, repairs, or any other purpose requiring the expenditure of funds, that county shall keep on file all bids received, together with proof of advertisement by publication or otherwise, for:
(a) at least three years following the letting of any contract pursuant to those bids; or
(b) three years following the first advertisement for the bids, if all bids pursuant to that advertisement are rejected.
Section 199. Section 17-53-311 is amended to read:
17-53-311
. Contracting for management, maintenance, operation, or construction of jails.(1) (a) With the approval of the sheriff, a county executive may contract with private contractors for management, maintenance, operation, and construction of county jails.
(b) A county executive may include a provision in the contract that allows use of a building authority created under the provisions of Title 17A, Chapter 3, Part 9, Municipal Building Authorities, to construct or acquire a jail facility.
(c) A county executive may include a provision in the contract that requires that any jail facility meet any federal, state, or local standards for the construction of jails.
(2) If a county executive contracts only for the management, maintenance, or operation of a jail, the county executive shall include provisions in the contract that:
(a) require the private contractor to post a performance bond in the amount set by the county legislative body;
(b) establish training standards that must be met by jail personnel;
(c) require the private contractor to provide and fund training for jail personnel so that the personnel meet the standards established in the contract and any other federal, state, or local standards for the operation of jails and the treatment of jail prisoners;
(d) require the private contractor to indemnify the county for errors, omissions, defalcations, and other activities committed by the private contractor that result in liability to the county;
(e) require the private contractor to show evidence of liability insurance protecting the county and its officers, employees, and agents from liability arising from the construction, operation, or maintenance of the jail, in an amount not less than those specified in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah;
(f) require the private contractor to:
(i) receive all prisoners committed to the jail by competent authority; and
(ii) provide them with necessary food, clothing, and bedding in the manner prescribed by the governing body; and
(g) prohibit the use of inmates by the private contractor for private business purposes of any kind.
(3) A contractual provision requiring the private contractor to maintain liability insurance in an amount not less than the liability limits established by [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, may not be construed as waiving the limitation on damages recoverable from a governmental entity or its employees established by that chapter.
Section 200. Section 17-53-313 is amended to read:
17-53-313
. Hiring of professional architect, engineer, or surveyor.Notwithstanding the adoption of some or all of the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, under Section 17-53-225, each county executive that engages the services of a professional architect, engineer, or surveyor and considers more than one such professional for the engagement:
(1) shall consider, as a minimum, in the selection process:
(a) the qualifications, experience, and background of each firm submitting a proposal;
(b) the specific individuals assigned to the project and the time commitments of each to the project; and
(c) the project schedule and the approach to the project that the firm will take; and
(2) may engage the services of a professional architect, engineer, or surveyor based on the criteria under Subsection (1) rather than solely on lowest cost.
Section 201. Section 17B-1-106 is amended to read:
17B-1-106
. Notice before preparing or amending a long-range plan or acquiring certain property.(1) As used in this section:
(a) (i) "Affected entity" means each county, municipality, local district under this title, special service district, school district, interlocal cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, and specified public utility:
(A) whose services or facilities are likely to require expansion or significant modification because of an intended use of land; or
(B) that has filed with the local district a copy of the general or long-range plan of the county, municipality, local district, school district, interlocal cooperation entity, or specified public utility.
(ii) "Affected entity" does not include the local district that is required under this section to provide notice.
(b) "Specified public utility" means an electrical corporation, gas corporation, or telephone corporation, as those terms are defined in Section 54-2-1.
(2) (a) If a local district under this title located in a county of the first or second class prepares a long-range plan regarding its facilities proposed for the future or amends an already existing long-range plan, the local district shall, before preparing a long-range plan or amendments to an existing long-range plan, provide written notice, as provided in this section, of its intent to prepare a long-range plan or to amend an existing long-range plan.
(b) Each notice under Subsection (2)(a) shall:
(i) indicate that the local district intends to prepare a long-range plan or to amend a long-range plan, as the case may be;
(ii) describe or provide a map of the geographic area that will be affected by the long-range plan or amendments to a long-range plan;
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries is located the land on which the proposed long-range plan or amendments to a long-range plan are expected to indicate that the proposed facilities will be located;
(B) each affected entity;
(C) the Automated Geographic Reference Center created in Section 63F-1-506;
(D) each association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or municipality described in Subsection (2)(b)(iii)(A) is a member; and
(E) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202;
(iv) with respect to the notice to counties and municipalities described in Subsection (2)(b)(iii)(A) and affected entities, invite them to provide information for the local district to consider in the process of preparing, adopting, and implementing the long-range plan or amendments to a long-range plan concerning:
(A) impacts that the use of land proposed in the proposed long-range plan or amendments to a long-range plan may have on the county, municipality, or affected entity; and
(B) uses of land that the county, municipality, or affected entity is planning or considering that may conflict with the proposed long-range plan or amendments to a long-range plan; and
(v) include the address of an Internet website, if the local district has one, and the name and telephone number of a person where more information can be obtained concerning the local district's proposed long-range plan or amendments to a long-range plan.
(3) (a) Except as provided in Subsection (3)(d), each local district intending to acquire real property in a county of the first or second class for the purpose of expanding the district's infrastructure or other facilities used for providing the services that the district is authorized to provide shall provide written notice, as provided in this Subsection (3), of its intent to acquire the property if the intended use of the property is contrary to:
(i) the anticipated use of the property under the county or municipality's general plan; or
(ii) the property's current zoning designation.
(b) Each notice under Subsection (3)(a) shall:
(i) indicate that the local district intends to acquire real property;
(ii) identify the real property; and
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries the property is located; and
(B) each affected entity.
(c) A notice under this Subsection (3) is a protected record as provided in Subsection [63-2-304] 63G-2-305(7).
(d) (i) The notice requirement of Subsection (3)(a) does not apply if the local district previously provided notice under Subsection (2) identifying the general location within the municipality or unincorporated part of the county where the property to be acquired is located.
(ii) If a local district is not required to comply with the notice requirement of Subsection (3)(a) because of application of Subsection (3)(d)(i), the local district shall provide the notice specified in Subsection (3)(a) as soon as practicable after its acquisition of the real property.
Section 202. Section 17B-1-108 is amended to read:
17B-1-108
. Restrictions on local district procurement of architect-engineer services.(1) As used in this section:
(a) "Architect-engineer services" means those professional services within the scope of the practice of architecture as defined in Section 58-3a-102.
(b) "Engineer services" means those professional services within the scope of the practice of professional engineering as defined in Section 58-22-102.
(2) When a local district elects to obtain architect services or engineering services by using a competitive procurement process and has provided public notice of its competitive procurement process:
(a) a higher education entity, or any part of one, may not submit a proposal in response to the local district's competitive procurement process; and
(b) the local district may not award a contract to perform the architect services or engineering services solicited in the competitive procurement process to a higher education entity or any part of one.
(3) Notwithstanding Subsection [63-56-102] 63G-6-104(3)(d), each local district board that engages the services of a professional architect, engineer, or surveyor and considers more than one such professional for the engagement:
(a) shall consider, as a minimum, in the selection process:
(i) the qualifications, experience, and background of each firm submitting a proposal;
(ii) the specific individuals assigned to the project and the time commitments of each to the project; and
(iii) the project schedule and the approach to the project that the firm will take; and
(b) may engage the services of a professional architect, engineer, or surveyor based on the criteria under Subsection (3)(a) rather than solely on lowest cost.
Section 203. Section 17B-2a-818 is amended to read:
17B-2a-818
. Requirements applicable to public transit district contracts.(1) If the expenditure required to construct district facilities or works exceeds $25,000, the construction shall be let as provided in [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(2) (a) The board of trustees of a public transit district shall advertise each bid or proposal through public notice as the board determines.
(b) A notice under Subsection (2)(a) may:
(i) include publication in:
(A) a newspaper of general circulation in the district;
(B) a trade journal; or
(C) other method determined by the board; and
(ii) be made at least once, not less than ten days before the expiration of the period within which bids or proposals are received.
(3) (a) The board of trustees may, in its discretion:
(i) reject any or all bids or proposals; and
(ii) readvertise or give notice again.
(b) If, after rejecting bids or proposals, the board of trustees determines and declares by a two-thirds vote of all members present that in the board's opinion the supplies, equipment, and materials may be purchased at a lower price in the open market, the board may purchase the supplies, equipment, and materials in the open market, notwithstanding any provisions requiring contracts, bids, proposals, advertisement, or notice.
(4) The board of trustees of a public transit district may let a contract without advertising for or inviting bids if:
(a) the board finds, upon a two-thirds vote of all members present, that a repair, alteration, or other work or the purchase of materials, supplies, equipment, or other property is of urgent necessity; or
(b) the district's general manager certifies by affidavit that there is only one source for the required supplies, equipment, materials, or construction items.
(5) If a public transit district retains or withholds any payment on a contract with a private contractor to construct facilities under this section, the board shall retain or withhold and release the payment as provided in Section 13-8-5.
Section 204. Section 17C-2-602 is amended to read:
17C-2-602
. Prerequisites to the acquisition of property by eminent domain -- Civil action authorized -- Record of good faith negotiations to be retained.(1) Before an agency may acquire property by eminent domain, the agency shall:
(a) negotiate in good faith with the affected record property owner;
(b) provide to each affected record property owner a written declaration that includes:
(i) an explanation of the eminent domain process and the reasons for using it, including:
(A) the need for the agency to obtain an independent appraisal that indicates the fair market value of the property and how the fair market value was determined;
(B) a statement that the agency may adopt a resolution authorizing the agency to make an offer to the record property owner to purchase the property for the fair market value amount determined by the appraiser and that, if the offer is rejected, the agency has the right to acquire the property through an eminent domain proceeding; and
(C) a statement that the agency will prepare an offer that will include the price the agency is offering for the property, an explanation of how the agency determined the price being offered, the legal description of the property, conditions of the offer, and the time at which the offer will expire;
(ii) an explanation of the record property owner's relocation rights under Title 57, Chapter 12, Utah Relocation Assistance Act, and how to receive relocation assistance; and
(iii) a statement that the owner has the right to receive just compensation and an explanation of how to obtain it; and
(c) provide to the affected record property owner or the owner's designated representative a notice that is printed in a type size of at least ten-point type that contains:
(i) a description of the property to be acquired;
(ii) the name of the agency acquiring the property and the agency's contact person and telephone number; and
(iii) a copy of Title 57, Chapter 12, Utah Relocation Assistance Act.
(2) A person may bring a civil action against an agency for a violation of Subsection (1)(b) that results in damage to that person.
(3) Each agency shall keep a record and evidence of the good faith negotiations required under Subsection (1)(a) and retain the record and evidence as provided in:
(a) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; or
(b) an ordinance or policy that the agency had adopted under Section [63-2-701] 63G-2-701.
(4) A record property owner whose property is being taken by an agency through the exercise of eminent domain may elect to receive for the real property being taken:
(a) fair market value; or
(b) replacement property under Section 57-12-7.
Section 205. Section 19-1-201 is amended to read:
19-1-201
. Powers of department.(1) The department shall:
(a) enter into cooperative agreements with the Department of Health to delineate specific responsibilities to assure that assessment and management of risk to human health from the environment are properly administered;
(b) consult with the Department of Health and enter into cooperative agreements, as needed, to ensure efficient use of resources and effective response to potential health and safety threats from the environment, and to prevent gaps in protection from potential risks from the environment to specific individuals or population groups; and
(c) coordinate implementation of environmental programs to maximize efficient use of resources by developing, with local health departments, a Comprehensive Environmental Service Delivery Plan that:
(i) recognizes that the department and local health departments are the foundation for providing environmental health programs in the state;
(ii) delineates the responsibilities of the department and each local health department for the efficient delivery of environmental programs using federal, state, and local authorities, responsibilities, and resources;
(iii) provides for the delegation of authority and pass through of funding to local health departments for environmental programs, to the extent allowed by applicable law, identified in the plan, and requested by the local health department; and
(iv) is reviewed and updated annually.
(2) The department may:
(a) investigate matters affecting the environment;
(b) investigate and control matters affecting the public health when caused by environmental hazards;
(c) prepare, publish, and disseminate information to inform the public concerning issues involving environmental quality;
(d) establish and operate programs, as authorized by this title, necessary for protection of the environment and public health from environmental hazards;
(e) use local health departments in the delivery of environmental health programs to the extent provided by law;
(f) enter into contracts with local health departments or others to meet responsibilities established under this title;
(g) acquire real and personal property by purchase, gift, devise, and other lawful means;
(h) prepare and submit to the governor a proposed budget to be included in the budget submitted by the governor to the Legislature;
(i) (i) establish a schedule of fees that may be assessed for actions and services of the department according to the procedures and requirements of Section [63-38-3.2] 63J-1-303; and
(ii) in accordance with Section [63-38-3.2] 63J-1-303, all fees shall be reasonable, fair, and reflect the cost of services provided;
(j) prescribe by rule reasonable requirements not inconsistent with law relating to environmental quality for local health departments;
(k) perform the administrative functions of the boards established by Section 19-1-106, including the acceptance and administration of grants from the federal government and from other sources, public or private, to carry out the board's functions; and
(l) upon the request of any board or the executive secretary, provide professional, technical, and clerical staff and field and laboratory services, the extent of which are limited by the funds available to the department for the staff and services.
Section 206. Section 19-1-301 is amended to read:
19-1-301
. Adjudicative proceedings.The department and its boards shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 207. Section 19-1-305 is amended to read:
19-1-305
. Administrative enforcement proceedings -- Tolling of limitation period.Issuing a notice of a violation, an order, or a notice of agency action under this title tolls the running of the period of limitation for commencing a civil action to assess or collect a penalty until the sooner of:
(1) the day on which the notice of violation, order, or agency action becomes final under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; or
(2) three years from the day on which the department issues a notice or order described in this section.
Section 208. Section 19-1-306 is amended to read:
19-1-306
. Records of the department.(1) Except as provided in this section, records of the department shall be subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) (a) The standards of the federal Freedom of Information Act, 5 U.S.C. Sec. 552, and not the standards of Subsections [63-2-304] 63G-2-305(1) and (2), shall govern access to records of the department for which business confidentiality has been claimed under Section [63-2-308] 63G-2-309, to the extent those records relate to a program:
(i) that is delegated, authorized, or for which primacy has been granted to the state;
(ii) for which the state is seeking delegation, authorization, or primacy; or
(iii) under the federal Comprehensive Environmental Response, Compensation, and Liability Act.
(b) The regulation of the United States Environmental Protection Agency interpreting the federal Freedom of Information Act, as it appeared at 40 C.F.R. Part 2 on January 1, 1992, shall also apply to the records described in Subsection (1).
(3) (a) The department may, upon request, make trade secret and confidential business records available to the United States Environmental Protection Agency insofar as they relate to a delegated program, to a program for which the state is seeking delegation, or to a program under the federal Comprehensive Environmental Response, Compensation and Liability Act.
(b) In the event a record is released to the United States Environmental Protection Agency under Subsection (3)(a), the department shall convey any claim of confidentiality to the United States Environmental Protection Agency and shall notify the person who submitted the information of its release.
(4) Trade secret and confidential business records under Subsection (2) shall be managed as protected records under the Government Records Access and Management Act, and all provisions of that act shall apply except Subsections [63-2-304] 63G-2-305(1) and (2).
(5) Records obtained from the United States Environmental Protection Agency and requested by that agency to be kept confidential shall be managed as protected records under the Government Records Access and Management Act, and all provisions of that act shall apply except to the extent they conflict with this subsection.
Section 209. Section 19-1-403 is amended to read:
19-1-403
. Clean Fuels and Vehicle Technology Fund -- Contents -- Loans or grants made with fund monies.(1) (a) There is created a revolving fund known as the Clean Fuels and Vehicle Technology Fund.
(b) The fund consists of:
(i) appropriations to the fund;
(ii) other public and private contributions made under Subsection (1)(d);
(iii) interest earnings on cash balances; and
(iv) all monies collected for loan repayments and interest on loans.
(c) All money appropriated to the fund is nonlapsing.
(d) The department may accept contributions from other public and private sources for deposit into the fund.
(2) (a) Except as provided in Subsection (3), the department may make a loan or a grant with monies available in the fund for:
(i) the conversion of a private sector business vehicle or a government vehicle to use a clean fuel, if certified by the Air Quality Board under Subsection 19-1-405(1)(a);
(ii) the purchase of:
(A) an OEM vehicle for use as a private sector business vehicle or government vehicle; or
(B) a vehicle, certified by the Air Quality Board under Subsection 19-1-405(1)(d), for use as a private sector business vehicle or government vehicle;
(iii) the retrofit, certified by the Air Quality Board under Subsection 19-1-405(1)(d), of a private sector business vehicle or government vehicle;
(iv) a fuel system, certified by the Air Quality Board under Subsection 19-1-405(1)(d), for a private sector business vehicle or government vehicle; or
(v) a state match of a federal or nonfederal grant for any item under this Subsection (2)(a).
(b) The amount of a loan for any vehicle under Subsection (2)(a)(i) or (2)(a)(ii)(A) may not exceed:
(i) the actual cost of the vehicle conversion;
(ii) the incremental cost of purchasing the OEM vehicle; or
(iii) the cost of purchasing the OEM vehicle if there is no documented incremental cost.
(c) The amount of a grant for any vehicle under Subsection (2)(a)(i) or (2)(a)(ii)(A) may not exceed:
(i) 50% of the actual cost of the vehicle conversion minus the amount of any tax credit claimed under Section 59-7-605 or 59-10-1009 for the vehicle for which a grant is requested; or
(ii) 50% of the incremental cost of purchasing an OEM vehicle minus the amount of any tax credit claimed under Section 59-7-605 or 59-10-1009 for the vehicle for which a grant is requested.
(d) (i) Except as provided in Subsection (3) and subject to the availability of monies in the fund, the department may make a loan for the purchase of vehicle refueling equipment for a private sector business vehicle or a government vehicle.
(ii) The maximum amount loaned per installation of refueling equipment may not exceed the actual cost of the refueling equipment.
(iii) Except as provided in Subsection (3) and subject to the availability of monies in the fund, the department may make a grant for a state match of a federal or nonfederal grant for the purchase of vehicle refueling equipment for a private sector business vehicle or a government vehicle.
(3) The department may not make a loan or grant under this part for an electric-hybrid vehicle.
(4) The department may:
(a) reimburse itself for the costs incurred in administering the fund from:
(i) the fund; or
(ii) application fees; and
(b) establish an application fee for a loan or grant from the fund by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(5) (a) The fund balance may not exceed $10,000,000.
(b) Interest on cash balances and repayment of loans in excess of the amount necessary to maintain the fund balance at $10,000,000 shall be deposited in the General Fund.
(6) (a) Loans made from monies in the fund shall be supported by loan documents evidencing the intent of the borrower to repay the loan.
(b) The original loan documents shall be filed with the Division of Finance and a copy shall be filed with the department.
Section 210. Section 19-1-404 is amended to read:
19-1-404
. Department duties -- Rulemaking -- Loan repayment.(1) The department shall:
(a) administer the fund created in Section 19-1-403 to encourage government officials and private sector business vehicle owners and operators to obtain and use clean fuel vehicles; and
(b) by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules:
(i) specifying the amount of money in the fund to be dedicated annually for grants;
(ii) limiting the amount of a grant given to any person claiming a tax credit under Section 59-7-605 or 59-10-1009 for the motor vehicle for which a grant is requested to assure that the sum of the tax credit and grant does not exceed:
(A) 50% of the incremental cost of the OEM vehicle; or
(B) 50% of the cost of conversion equipment;
(iii) limiting the number of motor vehicles per fleet operator that may be eligible for a grant in a year;
(iv) specifying criteria the department shall consider in prioritizing and awarding loans and grants;
(v) specifying repayment periods;
(vi) specifying procedures for:
(A) awarding loans and grants; and
(B) collecting loans;
(vii) requiring all loan and grant applicants to:
(A) apply on forms provided by the department;
(B) agree in writing to use the clean fuel for which each vehicle is converted or purchased using loan or grant proceeds for a minimum of 70% of the vehicle miles traveled beginning from the time of conversion or purchase of the vehicle;
(C) agree in writing to notify the department if a vehicle converted or purchased using loan or grant proceeds becomes inoperable through mechanical failure or accident and to pursue a remedy outlined in department rules;
(D) provide reasonable data to the department on a vehicle converted or purchased with loan or grant proceeds; and
(E) submit a vehicle converted or purchased with loan or grant proceeds to inspections by the department as required in department rules and as necessary for administration of the loan and grant program; and
(viii) specifying the criteria for awarding a state match under Subsection 19-1-403(2).
(2) (a) When developing repayment schedules for the loans, the department shall consider the projected savings from use of the clean fuel vehicle.
(b) A repayment schedule may not exceed ten years.
(c) The department shall make a loan from the fund for a private sector vehicle at an interest rate equal to the annual return earned in the state treasurer's Public Treasurer's Pool as determined the month immediately preceding the closing date of the loan.
(d) The department shall make a loan from the fund for a government vehicle with no interest rate.
(3) The Division of Finance shall:
(a) collect and account for the loans; and
(b) have custody of all loan documents, including all notes and contracts, evidencing the indebtedness of the fund.
Section 211. Section 19-1-405 is amended to read:
19-1-405
. Air Quality Board duties -- Rulemaking.(1) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Air Quality Board may make rules to:
(a) certify a motor vehicle on which conversion equipment has been installed if:
(i) before the installation of conversion equipment, the motor vehicle does not exceed the emission cut points for:
(A) a transient test driving cycle, as specified in 40 CFR 51, Appendix E to Subpart S; or
(B) an equivalent test for the make, model, and year of the motor vehicle; and
(ii) the motor vehicle's emissions of regulated pollutants, when operating with clean fuel, is less than the emissions were before the installation of conversion equipment;
(b) recognize a test or standard that demonstrates a reduction in emissions;
(c) recognize a certification standard from another state;
(d) certify a fuel, vehicle, retrofit, or fuel system if it is at least as effective in reducing air pollution as fuels under Subsection 19-1-402(1)(a) or vehicles under Subsection 19-1-402(2); or
(e) establish criteria for determining the effectiveness of a fuel, vehicle, retrofit, or fuel system in reducing air pollution.
(2) A reduction in emissions under Subsection (1)(a)(ii) is demonstrated by:
(a) certification of the conversion equipment by the federal Environmental Protection Agency or by a state whose certification standards are recognized by the Air Quality Board;
(b) testing the motor vehicle, before and after the installation of the conversion equipment, in accordance with 40 CFR 86, Control of Air Pollution from New and In-use Motor Vehicle Engines: Certification and Test Procedures, using all fuel the motor vehicle is capable of using; or
(c) any other test or standard recognized by the Air Quality Board in rule.
Section 212. Section 19-2-104 is amended to read:
19-2-104
. Powers of board.(1) The board may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) regarding the control, abatement, and prevention of air pollution from all sources and the establishment of the maximum quantity of air contaminants that may be emitted by any air contaminant source;
(b) establishing air quality standards;
(c) requiring persons engaged in operations which result in air pollution to:
(i) install, maintain, and use emission monitoring devices, as the board finds necessary;
(ii) file periodic reports containing information relating to the rate, period of emission, and composition of the air contaminant; and
(iii) provide access to records relating to emissions which cause or contribute to air pollution;
(d) implementing 15 U.S.C.A. 2601 et seq. Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, and reviewing and approving asbestos management plans submitted by local education agencies under that act;
(e) establishing a requirement for a diesel emission opacity inspection and maintenance program for diesel-powered motor vehicles;
(f) implementing an operating permit program as required by and in conformity with Titles IV and V of the federal Clean Air Act Amendments of 1990;
(g) establishing requirements for county emissions inspection and maintenance programs after obtaining agreement from the counties that would be affected by the requirements;
(h) with the approval of the governor, implementing in air quality nonattainment areas employer-based trip reduction programs applicable to businesses having more than 100 employees at a single location and applicable to federal, state, and local governments to the extent necessary to attain and maintain ambient air quality standards consistent with the state implementation plan and federal requirements under the standards set forth in Subsection (2); and
(i) implementing lead-based paint remediation training, certification, and performance requirements in accordance with 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter IV -- Lead Exposure Reduction, Sections 402 and 406.
(2) When implementing Subsection (1)(h) the board shall take into consideration:
(a) the impact of the business on overall air quality; and
(b) the need of the business to use automobiles in order to carry out its business purposes.
(3) The board may:
(a) hold hearings relating to any aspect of or matter in the administration of this chapter and compel the attendance of witnesses and the production of documents and other evidence, administer oaths and take testimony, and receive evidence as necessary;
(b) issue orders necessary to enforce the provisions of this chapter, enforce the orders by appropriate administrative and judicial proceedings, and institute judicial proceedings to secure compliance with this chapter;
(c) settle or compromise any civil action initiated to compel compliance with this chapter and the rules made under this chapter;
(d) secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise;
(e) prepare and develop a comprehensive plan or plans for the prevention, abatement, and control of air pollution in this state;
(f) encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter;
(g) encourage local units of government to handle air pollution within their respective jurisdictions on a cooperative basis and provide technical and consultative assistance to them;
(h) encourage and conduct studies, investigations, and research relating to air contamination and air pollution and their causes, effects, prevention, abatement, and control;
(i) determine by means of field studies and sampling the degree of air contamination and air pollution in all parts of the state;
(j) monitor the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere in all parts of this state and take appropriate action with respect to them;
(k) collect and disseminate information and conduct educational and training programs relating to air contamination and air pollution;
(l) advise, consult, contract, and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, the federal government, and with interested persons or groups;
(m) consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source in the state concerning the efficacy of any proposed control device, or system for this source, or the air pollution problem which may be related to the source, device, or system, but a consultation does not relieve any person from compliance with this chapter, the rules adopted under it, or any other provision of law;
(n) accept, receive, and administer grants or other funds or gifts from public and private agencies, including the federal government, for the purpose of carrying out any of the functions of this chapter;
(o) require the owner and operator of each new source which directly emits or has the potential to emit 100 tons per year or more of any air contaminant or the owner or operator of each existing source which by modification will increase emissions or have the potential of increasing emissions by 100 tons per year or more of any air contaminant, to pay a fee sufficient to cover the reasonable costs of:
(i) reviewing and acting upon the notice required under Section 19-2-108; and
(ii) implementing and enforcing requirements placed on the sources by any approval order issued pursuant to notice, not including any court costs associated with any enforcement action;
(p) assess and collect noncompliance penalties as required in Section 120 of the federal Clean Air Act, 42 U.S.C. Sec. 7420;
(q) meet the requirements of federal air pollution laws;
(r) establish work practice, certification, and clearance air sampling requirements for persons who:
(i) contract for hire to conduct demolition, renovation, salvage, encapsulation work involving friable asbestos-containing materials, or asbestos inspections;
(ii) conduct work described in Subsection (3)(r)(i) in areas to which the general public has unrestrained access or in school buildings that are subject to the federal Asbestos Hazard Emergency Response Act of 1986;
(iii) conduct asbestos inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or
(iv) conduct lead paint inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter IV -- Lead Exposure Reduction;
(s) establish certification requirements for persons required under 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, to be accredited as inspectors, management planners, abatement project designers, asbestos abatement contractors and supervisors, or asbestos abatement workers;
(t) establish certification requirements for asbestos project monitors, which shall provide for experience-based certification of persons who, prior to establishment of the certification requirements, had received relevant asbestos training, as defined by rule, and had acquired at least 1,000 hours of experience as project monitors;
(u) establish certification procedures and requirements for certification of the conversion of a motor vehicle to a clean-fuel vehicle, certifying the vehicle is eligible for the tax credit granted in Section 59-7-605 or 59-10-1009;
(v) establish a program to certify private sector air quality permitting professionals (AQPP), as described in Section 19-2-109.5; and
(w) establish certification requirements for persons required under 15 U.S.C.A. 2601 et seq., Toxic Control Act, Subchapter IV -- Lead Exposure Reduction, to be accredited as inspectors, risk assessors, supervisors, project designers, or abatement workers.
(4) Any rules adopted under this chapter shall be consistent with provisions of federal laws, if any, relating to control of motor vehicles or motor vehicle emissions.
(5) Nothing in this chapter authorizes the board to require installation of or payment for any monitoring equipment by the owner or operator of a source if the owner or operator has installed or is operating monitoring equipment that is equivalent to equipment which the board would require under this section.
Section 213. Section 19-2-105.3 is amended to read:
19-2-105.3
. Clean fuel requirements for fleets.(1) As used in this section:
(a) "1990 Clean Air Act" means the federal Clean Air Act as amended in 1990.
(b) "Clean fuel" means:
(i) propane, compressed natural gas, or electricity;
(ii) other fuel the Air Quality Board created in Title 19, Chapter 2, Air Conservation Act, determines annually on or before July 1 is at least as effective as fuels under Subsection (1)(b)(i) in reducing air pollution; and
(iii) other fuel that meets the clean fuel vehicle standards in the 1990 Clean Air Act.
(c) "Fleet" means ten or more vehicles:
(i) owned or operated by a single entity as defined by board rule; and
(ii) capable of being fueled or that are fueled at a central location.
(d) "Fleet" does not include motor vehicles that are:
(i) held for lease or rental to the general public;
(ii) held for sale or used as demonstration vehicles by motor vehicle dealers;
(iii) used by motor vehicle manufacturers for product evaluations or tests;
(iv) authorized emergency vehicles as defined in Section 41-6a-102;
(v) registered under Title 41, Chapter 1a, Part 2, Registration, as farm vehicles;
(vi) special mobile equipment as defined in Section 41-1a-102;
(vii) heavy duty trucks with a gross vehicle weight rating of more than 26,000 pounds;
(viii) regularly used by employees to drive to and from work, parked at the employees' personal residences when they are not at their employment, and not practicably fueled at a central location;
(ix) owned, operated, or leased by public transit districts; or
(x) exempted by board rule.
(2) (a) After evaluation of reasonably available pollution control strategies, and as part of the state implementation plan demonstrating attainment of the national ambient air quality standards, the board may by rule, subject to Subsection (2)(c), require fleets in specified geographical areas to use clean fuels if the board determines fleet use of clean fuels is:
(i) necessary to demonstrate attainment of the national ambient air quality standards in any area where they are required; and
(ii) reasonably cost effective when compared to other similarly beneficial control strategies for demonstrating attainment of the national ambient air quality standards.
(b) State implementation plans developed prior to July 1, 1995, may require fleets to use clean fuels no earlier than July 1, 1995, unless the board determines fleet use of clean fuels is necessary prior to July 1, 1995, to demonstrate attainment of the national ambient air quality standards in any area by an attainment date established by federal law.
(c) The board may not require more than 50% of those trucks in a fleet that are heavy duty trucks having a gross vehicle weight rating of more than 8,500 pounds and not more than 26,000 pounds to convert to clean fuels under Subsection (2)(b).
(3) (a) After evaluation of reasonably available pollution control strategies, and as part of a state implementation plan demonstrating only maintenance of the national ambient air quality standards, the board may by rule, subject to Subsection (3)(b), require fleets in specified geographical areas to use clean fuels if the board determines fleet use of clean fuels is:
(i) necessary to demonstrate maintenance of the national ambient air quality standards in any area where they are required; and
(ii) reasonably cost effective as compared with other similarly beneficial control strategies for demonstrating maintenance of the national ambient air quality standards.
(b) Under Subsection (3)(a) the board may require no more than:
(i) 30% of a fleet to use clean fuels before January 1, 1998;
(ii) 50% of a fleet to use clean fuels before January 1, 1999; and
(iii) 70% of a fleet to use clean fuels before January 1, 2000.
(c) The board may not require more than 50% of those trucks in a fleet that are heavy duty trucks having a gross vehicle weight rating of more than 8,500 pounds and not more than 26,000 pounds to convert to clean fuels under Subsection (3)(b).
(4) Rules the board makes under this section may include:
(a) dates by which fleets are required to convert to clean fuels under the provisions of this section;
(b) definitions of fleet owners or operators;
(c) definitions of vehicles exempted from this section by rule;
(d) certification requirements for persons who install clean fuel conversion equipment, including testing and certification standards regarding installers; and
(e) certification fees for installers, established under Section [63-38-3.2] 63J-1-303.
(5) Implementation of this section and rules made under this section are subject to the reasonable availability of clean fuel in the local market as determined by the board.
Section 214. Section 19-2-109.1 is amended to read:
19-2-109.1
. Operating permit required -- Emissions fee -- Implementation.(1) As used in this section and Sections 19-2-109.2 and 19-2-109.3:
(a) "EPA" means the federal Environmental Protection Agency.
(b) "1990 Clean Air Act" means the federal Clean Air Act as amended in 1990.
(c) "Operating permit" means a permit issued by the executive secretary to sources of air pollution that meet the requirements of Titles IV and V of the 1990 Clean Air Act.
(d) "Program" means the air pollution operating permit program established under this section to comply with Title V of the 1990 Clean Air Act.
(e) "Regulated pollutant" has the same meaning as defined in Title V of the 1990 Clean Air Act and implementing federal regulations.
(2) (a) A person may not operate any source of air pollution required to have a permit under Title V of the 1990 Clean Air Act without having obtained an operating permit from the executive secretary under procedures the board establishes by rule.
(b) A person is not required to submit an operating permit application until the governor has submitted an operating permit program to the EPA.
(c) Any operating permit issued under this section may not become effective until the day after the EPA issues approval of the permit program or November 15, 1995, whichever occurs first.
(3) (a) Operating permits issued under this section shall be for a period of five years unless the board makes a written finding, after public comment and hearing, and based on substantial evidence in the record, that an operating permit term of less than five years is necessary to protect the public health and the environment of the state.
(b) The executive secretary may issue, modify, or renew an operating permit only after providing public notice, an opportunity for public comment, and an opportunity for a public hearing.
(c) The executive secretary shall, in conformity with the 1990 Clean Air Act and implementing federal regulations, revise the conditions of issued operating permits to incorporate applicable federal regulations in conformity with Section 502(b)(9) of the 1990 Clean Air Act, if the remaining period of the permit is three or more years.
(d) The executive secretary may terminate, modify, revoke, or reissue an operating permit for cause.
(4) (a) The board shall establish a proposed annual emissions fee that conforms with Title V of the 1990 Clean Air Act for each ton of regulated pollutant, applicable to all sources required to obtain a permit. The emissions fee established under this section is in addition to fees assessed under Section 19-2-108 for issuance of an approval order.
(b) In establishing the fee the board shall comply with the provisions of Section [63-38-3.2] 63J-1-303 that require a public hearing and require the established fee to be submitted to the Legislature for its approval as part of the department's annual appropriations request.
(c) The fee shall cover all reasonable direct and indirect costs required to develop and administer the program and the small business assistance program established under Section 19-2-109.2. The board shall prepare an annual report of the emissions fees collected and the costs covered by those fees under this subsection.
(d) The fee shall be established uniformly for all sources required to obtain an operating permit under the program and for all regulated pollutants.
(e) The fee may not be assessed for emissions of any regulated pollutant if the emissions are already accounted for within the emissions of another regulated pollutant.
(f) An emissions fee may not be assessed for any amount of a regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollutant.
(5) Emissions fees for the period:
(a) of July 1, 1992, through June 30, 1993, shall be based on the most recent emissions inventory prepared by the executive secretary;
(b) on and after July 1, 1993, but prior to issuance of an operating permit, shall be based on the most recent emissions inventory, unless a source elects prior to July 1, 1992, to base the fee on allowable emissions, if applicable for a regulated pollutant.
(6) After an operating permit is issued the emissions fee shall be based on actual emissions for a regulated pollutant unless a source elects, prior to the issuance or renewal of a permit, to base the fee during the period of the permit on allowable emissions for that regulated pollutant.
(7) If the owner or operator of a source subject to this section fails to timely pay an annual emissions fee, the executive secretary may:
(a) impose a penalty of not more than 50% of the fee, in addition to the fee, plus interest on the fee computed at 12% annually; or
(b) revoke the operating permit.
(8) The owner or operator of a source subject to this section may contest an emissions fee assessment or associated penalty in an adjudicative hearing under the [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, as provided in this subsection.
(a) The owner or operator must pay the fee under protest prior to being entitled to a hearing. Payment of an emissions fee or penalty under protest is not a waiver of the right to contest the fee or penalty under this subsection.
(b) A request for a hearing under this subsection shall be made after payment of the emissions fee and within six months after the emissions fee was due.
(9) To reinstate an operating permit revoked under Subsection (7) the owner or operator shall pay all outstanding emissions fees, a penalty of not more than 50% of all outstanding fees, and interest on the outstanding emissions fees computed at 12% annually.
(10) All emissions fees and penalties collected by the department under this section shall be deposited in the General Fund as the Air Pollution Operating Permit Program dedicated credit to be used solely to pay for the reasonable direct and indirect costs incurred by the department in developing and administering the program and the small business assistance program under Section 19-2-109.2.
(11) Failure of the executive secretary to act on any operating permit application or renewal is a final administrative action only for the purpose of obtaining judicial review by any of the following persons to require the executive secretary to take action on the permit or its renewal without additional delay:
(a) the applicant;
(b) any person who participated in the public comment process; or
(c) any other person who could obtain judicial review of that action under applicable law.
Section 215. Section 19-2-109.3 is amended to read:
19-2-109.3
. Public access to information.A copy of each permit application, compliance plan, emissions or compliance monitoring report, certification, and each operating permit issued under this chapter shall be made available to the public in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 216. Section 19-2-109.5 is amended to read:
19-2-109.5
. Private sector air quality permitting professionals certification program.(1) As used in this section, "AQPP" means an air quality permitting professional.
(2) The board may establish a program to certify private sector AQPPs, including consultants and employees of companies that may seek air quality permits from the division. Any program established under this section shall include:
(a) a training program established and operated by the department, which describes and explains the state law and rules regarding the air quality permit application and approval procedure under this chapter;
(b) the requirement to pass an exam to measure qualifications of AQPP applicants;
(c) an option for certification of an AQPP by passing the exam without undergoing any training required under the program;
(d) an application process, including a fee established under Section [63-38-3.2] 63J-1-303 that covers the costs of the training, testing, and application process and the department's maintenance of a list of certified AQPPs;
(e) certification of qualified AQPP applicants;
(f) maintenance by the department of a current list of certified AQPPs, which is available to the public; and
(g) procedures for the expedited review by the department of air quality permit applications submitted by certified AQPPs; and
(h) professional standards for AQPPs.
(3) The board may not require AQPP certification as a condition of preparing or submitting a notice of intent or operating permit application under this chapter.
(4) Any program under this section shall provide for revocation of any certification issued under this section if the department determines, through an administrative hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, that the AQPP:
(a) knowingly or negligently submitted false information or data as part of an air quality permit application;
(b) prepared more than three air quality permit applications in one calendar year in a manner that each did not substantially comply with department application requirements;
(c) prepared any air quality permit application in violation of the professional standards defined by department rule.
Section 217. Section 19-2-112 is amended to read:
19-2-112
. Generalized condition of air pollution creating emergency -- Sources causing imminent danger to health -- Powers of executive director -- Declaration of emergency.(1) (a) [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and any other provision of law to the contrary notwithstanding, if the executive director finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the executive director, with the concurrence of the governor, shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants.
(b) The order shall fix a place and time, not later than 24 hours after its issuance, for a hearing to be held before the governor.
(c) Not more than 24 hours after the commencement of this hearing, and without adjournment of it, the governor shall affirm, modify, or set aside the order of the executive director.
(2) In the absence of a generalized condition of air pollution referred to in Subsection (1), but if the executive director finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to human health or safety, he may commence adjudicative proceedings under Section [63-46b-20] 63G-4-502.
(3) Nothing in this section limits any power that the governor or any other officer has to declare an emergency and act on the basis of that declaration.
Section 218. Section 19-2-115 is amended to read:
19-2-115
. Violations -- Penalties -- Reimbursement for expenses.(1) As used in this section, the terms "knowingly," "willfully," and "criminal negligence" shall mean as defined in Section 76-2-103.
(2) (a) A person who violates this chapter, or any rule, order, or permit issued or made under this chapter is subject in a civil proceeding to a penalty not to exceed $10,000 per day for each violation.
(b) Subsection (2)(a) also applies to rules made under the authority of Section 19-2-104, for implementation of 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response.
(c) Penalties assessed for violations described in 15 U.S.C.A. 2647, Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the amounts specified in that section and shall be used in accordance with that section.
(3) A person is guilty of a class A misdemeanor and is subject to imprisonment under Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person knowingly violates any of the following under this chapter:
(a) an applicable standard or limitation;
(b) a permit condition; or
(c) a fee or filing requirement.
(4) A person is guilty of a third degree felony and is subject to imprisonment under Section 76-3-203 and a fine of not more than $25,000 per day of violation who knowingly:
(a) makes any false material statement, representation, or certification, in any notice or report required by permit; or
(b) renders inaccurate any monitoring device or method required to be maintained by this chapter or applicable rules made under this chapter.
(5) Any fine or penalty assessed under Subsections (2) or (3) is in lieu of any penalty under Section 19-2-109.1.
(6) A person who willfully violates Section 19-2-120 is guilty of a class A misdemeanor.
(7) A person who knowingly violates any requirement of an applicable implementation plan adopted by the board, more than 30 days after having been notified in writing by the executive secretary that the person is violating the requirement, knowingly violates an order issued under Subsection 19-2-110(1)(a), or knowingly handles or disposes of asbestos in violation of a rule made under this chapter is guilty of a third degree felony and subject to imprisonment under Section 76-3-203 and a fine of not more than $25,000 per day of violation in the case of the first offense, and not more than $50,000 per day of violation in the case of subsequent offenses.
(8) (a) As used in this section:
(i) "Hazardous air pollutant" means any hazardous air pollutant listed under 42 USC 7412 or any extremely hazardous substance listed under 42 USC 11002(a)(2).
(ii) "Organization" means a legal entity, other than a government, established or organized for any purpose, and includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons.
(iii) "Serious bodily injury" means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(b) (i) A person is guilty of a class A misdemeanor and subject to imprisonment under Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person with criminal negligence:
(A) releases into the ambient air any hazardous air pollutant; and
(B) places another person in imminent danger of death or serious bodily injury.
(ii) As used in this Subsection (8)(b), "person" does not include an employee who is carrying out the employee's normal activities and who is not a part of senior management personnel or a corporate officer.
(c) A person is guilty of a second degree felony and is subject to imprisonment under Section 76-3-203 and a fine of not more than $50,000 per day of violation if that person:
(i) knowingly releases into the ambient air any hazardous air pollutant; and
(ii) knows at the time that he is placing another person in imminent danger of death or serious bodily injury.
(d) If a person is an organization, it shall, upon conviction of violating Subsection (8)(c), be subject to a fine of not more than $1,000,000.
(e) (i) A defendant who is an individual is considered to have acted knowingly under Subsections (8)(c) and (d), if:
(A) the defendant's conduct placed another person in imminent danger of death or serious bodily injury; and
(B) the defendant was aware of or believed that there was an imminent danger of death or serious bodily injury to another person.
(ii) Knowledge possessed by a person other than the defendant may not be attributed to the defendant.
(iii) Circumstantial evidence may be used to prove that the defendant possessed actual knowledge, including evidence that the defendant took affirmative steps to be shielded from receiving relevant information.
(f) (i) It is an affirmative defense to prosecution under this Subsection (8) that the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of:
(A) an occupation, a business, a profession; or
(B) medical treatment or medical or scientific experimentation conducted by professionally approved methods and the other person was aware of the risks involved prior to giving consent.
(ii) The defendant has the burden of proof to establish any affirmative defense under this Subsection (8)(f) and must prove that defense by a preponderance of the evidence.
(9) (a) Except as provided in Subsection (9)(b), and unless prohibited by federal law, all penalties assessed and collected under the authority of this section shall be deposited in the General Fund.
(b) The department may reimburse itself and local governments from monies collected from civil penalties for extraordinary expenses incurred in environmental enforcement activities.
(c) The department shall regulate reimbursements by making rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
(i) define qualifying environmental enforcement activities; and
(ii) define qualifying extraordinary expenses.
Section 219. Section 19-3-104 is amended to read:
19-3-104
. Registration and licensing of radiation sources by department -- Assessment of fees -- Rulemaking authority and procedure -- Siting criteria.(1) As used in this section:
(a) "Decommissioning" includes financial assurance.
(b) "Source material" and "byproduct material" have the same definitions as in 42 U.S.C.A. 2014, Atomic Energy Act of 1954, as amended.
(2) The board may require the registration or licensing of radiation sources that constitute a significant health hazard.
(3) All sources of ionizing radiation, including ionizing radiation producing machines, shall be registered or licensed by the department.
(4) The board may make rules:
(a) necessary for controlling exposure to sources of radiation that constitute a significant health hazard;
(b) to meet the requirements of federal law relating to radiation control to ensure the radiation control program under this part is qualified to maintain primacy from the federal government;
(c) to establish:
(i) board accreditation requirements and procedures for mammography facilities; and
(ii) certification procedure and qualifications for persons who survey mammography equipment and oversee quality assurance practices at mammography facilities; and
(d) as necessary regarding the possession, use, transfer, or delivery of source and byproduct material and the disposal of byproduct material to establish requirements for:
(i) the licensing, operation, decontamination, and decommissioning, including financial assurances; and
(ii) the reclamation of sites, structures, and equipment used in conjunction with the activities described in this Subsection (4).
(5) (a) On and after January 1, 2003, a fee is imposed for the regulation of source and byproduct material and the disposal of byproduct material at uranium mills or commercial waste facilities, as provided in this Subsection (5).
(b) On and after January 1, 2003 through March 30, 2003:
(i) $6,667 per month for uranium mills or commercial sites disposing of or reprocessing byproduct material; and
(ii) $4,167 per month for those uranium mills the executive secretary has determined are on standby status.
(c) On and after March 31, 2003 through June 30, 2003 the same fees as in Subsection (5)(b) apply, but only if the federal Nuclear Regulatory Commission grants to Utah an amendment for agreement state status for uranium recovery regulation on or before March 30, 2003.
(d) If the Nuclear Regulatory Commission does not grant the amendment for state agreement status on or before March 30, 2003, fees under Subsection (5)(e) do not apply and are not required to be paid until on and after the later date of:
(i) October 1, 2003; or
(ii) the date the Nuclear Regulatory Commission grants to Utah an amendment for agreement state status for uranium recovery regulation.
(e) For the payment periods beginning on and after July 1, 2003, the department shall establish the fees required under Subsection (5)(a) under Section [63-38-3.2] 63J-1-303, subject to the restrictions under Subsection (5)(d).
(f) The department shall deposit fees it receives under this Subsection (5) into the Environmental Quality Restricted Account created in Section 19-1-108.
(6) (a) The department shall assess fees for registration, licensing, and inspection of radiation sources under this section.
(b) The department shall comply with the requirements of Section [63-38-3.2] 63J-1-303 in assessing fees for licensure and registration.
(7) The department shall coordinate its activities with the Department of Health rules made under Section 26-21a-203.
(8) (a) Except as provided in Subsection (9), the board may not adopt rules, for the purpose of the state assuming responsibilities from the United States Nuclear Regulatory Commission with respect to regulation of sources of ionizing radiation, that are more stringent than the corresponding federal regulations which address the same circumstances.
(b) In adopting those rules, the board may incorporate corresponding federal regulations by reference.
(9) (a) The board may adopt rules more stringent than corresponding federal regulations for the purpose described in Subsection (8) only if it makes a written finding after public comment and hearing and based on evidence in the record that corresponding federal regulations are not adequate to protect public health and the environment of the state.
(b) Those findings shall be accompanied by an opinion referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the board's conclusion.
(10) (a) The board shall by rule:
(i) authorize independent qualified experts to conduct inspections required under this chapter of x-ray facilities registered with the division; and
(ii) establish qualifications and certification procedures necessary for independent experts to conduct these inspections.
(b) Independent experts under this Subsection (10) are not considered employees or representatives of the division or the state when conducting the inspections.
(11) (a) The board may by rule establish criteria for siting commercial low-level radioactive waste treatment or disposal facilities, subject to the prohibition imposed by Section 19-3-103.7.
(b) Subject to Subsection 19-3-105(10), any facility under Subsection (11)(a) for which a radioactive material license is required by this section shall comply with those criteria.
(c) Subject to Subsection 19-3-105(10), a facility may not receive a radioactive material license until siting criteria have been established by the board. The criteria also apply to facilities that have applied for but not received a radioactive material license.
(12) The board shall by rule establish financial assurance requirements for closure and postclosure care of radioactive waste land disposal facilities, taking into account existing financial assurance requirements.
Section 220. Section 19-3-106.4 is amended to read:
19-3-106.4
. Generator site access permits.(1) A generator or broker may not transfer radioactive waste to a commercial radioactive waste treatment or disposal facility in the state without first obtaining a generator site access permit from the executive secretary.
(2) The board may make rules pursuant to Section 19-3-104 governing a generator site access permit program.
(3) (a) Except as provided in Subsection (3)(b), the department shall establish fees for generator site access permits in accordance with Section [63-38-3.2] 63J-1-303.
(b) On and after July 1, 2001 through June 30, 2002, the fees are:
(i) $1,300 for generators transferring 1,000 or more cubic feet of radioactive waste per year;
(ii) $500 for generators transferring less than 1,000 cubic feet of radioactive waste per year; and
(iii) $5,000 for brokers.
(c) The department shall deposit fees received under this section into the Environmental Quality Restricted Account created in Section 19-1-108.
(4) This section does not apply to a generator or broker transferring radioactive waste to a uranium mill licensed under 10 C.F.R. Part 40, Domestic Licensing of Source Material.
Section 221. Section 19-3-109 is amended to read:
19-3-109
. Civil penalties -- Appeals.(1) A person who violates any provision of Sections 19-3-104 through 19-3-113, any rule or order issued under the authority of those sections, or the terms of a license, permit, or registration certificate issued under the authority of those sections is subject to a civil penalty not to exceed $5,000 for each violation.
(2) The board may assess and make a demand for payment of a penalty under this section and may compromise or remit that penalty.
(3) In order to make demand for payment of a penalty assessed under this section, the board shall issue a notice of agency action, specifying, in addition to the requirements for notices of agency action contained in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act:
(a) the date, facts, and nature of each act or omission charged;
(b) the provision of the statute, rule, order, license, permit, or registration certificate that is alleged to have been violated;
(c) each penalty that the bureau proposes to impose, together with the amount and date of effect of that penalty; and
(d) that failure to pay the penalty or respond may result in a civil action for collection.
(4) A person notified according to Subsection (3) may request an adjudicative proceeding.
(5) Upon request by the board, the attorney general may institute a civil action to collect a penalty imposed under this section.
(6) (a) Except as provided in Subsection (b), the department shall deposit all monies collected from civil penalties imposed under this section into the General Fund.
(b) The department may reimburse itself and local governments from monies collected from civil penalties for extraordinary expenses incurred in environmental enforcement activities.
(c) The department shall regulate reimbursements by making rules that:
(i) define qualifying environmental enforcement activities; and
(ii) define qualifying extraordinary expenses.
Section 222. Section 19-3-111 is amended to read:
19-3-111
. Impounding of radioactive material.(1) The board may impound the radioactive material of any person if:
(a) the material poses an imminent threat or danger to the public health or safety; or
(b) that person is violating:
(i) any provision of Sections 19-3-104 through 19-3-113;
(ii) any rules or orders enacted or issued under the authority of those sections; or
(iii) the terms of a license, permit, or registration certificate issued under the authority of those sections.
(2) Before any dispositive action may be taken with regard to impounded radioactive materials, the board shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 223. Section 19-3-303 is amended to read:
19-3-303
. Definitions.As used in this part:
(1) "Final judgment" means a final ruling or judgment, including any supporting opinion, that determines the rights of the parties and concerning which all appellate remedies have been exhausted or the time for appeal has expired.
(2) "Goods" means any materials or supplies, whether raw, processed, or manufactured.
(3) "Greater than class C radioactive waste" means low-level radioactive waste that has higher concentrations of specific radionuclides than allowed for class C waste.
(4) "Gross value of the contract" means the totality of the consideration received for any goods, services, or municipal-type services delivered or rendered in the state without any deduction for expense paid or accrued with respect to it.
(5) "High-level nuclear waste" has the same meaning as in Section 19-3-102.
(6) "Municipal-type services" includes, but is not limited to:
(a) fire protection service;
(b) waste and garbage collection and disposal;
(c) planning and zoning;
(d) street lighting;
(e) life support and paramedic services;
(f) water;
(g) sewer;
(h) electricity;
(i) natural gas or other fuel; or
(j) law enforcement.
(7) "Organization" means a corporation, limited liability company, partnership, limited liability partnership, joint venture, consortium, association, trust, or other entity formed to undertake an enterprise, whether or not for profit.
(8) "Placement" means transportation, transfer, storage, decay in storage, treatment, or disposal.
(9) "Political subdivision" means any county, city, town, school district, public transit district, redevelopment agency, special improvement or taxing district, or other governmental subdivision or public corporation.
(10) "Rule" means a rule made by the department under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(11) "Service" or "services" means any work or governmental program which provides a benefit.
(12) "Storage facility" means any facility which stores, holds, or otherwise provides for the emplacement of waste regardless of the intent to recover that waste for subsequent use, processing, or disposal.
(13) "Transfer facility" means any facility which transfers waste from and between transportation modes, vehicles, cars, or other units, and includes rail terminals and intermodal transfer points.
(14) "Waste" or "wastes" means high-level nuclear waste and greater than class C radioactive waste.
Section 224. Section 19-3-308 is amended to read:
19-3-308
. Application fee and annual fees.(1) (a) Any application for a waste transfer, storage, decay in storage, treatment, or disposal facility shall be accompanied by an initial fee of $5,000,000.
(b) The applicant shall subsequently pay an additional fee to cover the costs to the state associated with review of the application, including costs to the state and the state's contractors for permitting, technical, administrative, legal, safety, and emergency response reviews, planning, training, infrastructure, and other impact analyses, studies, and services required to evaluate a proposed facility.
(2) For the purpose of funding the state oversight and inspection of any waste transfer, storage, decay in storage, treatment, or disposal facility, and to establish state infrastructure, including, but not limited to providing for state Department of Environmental Quality, state Department of Transportation, state Department of Public Safety, and other state agencies' technical, administrative, legal, infrastructure, maintenance, training, safety, socio-economic, law enforcement, and emergency resources necessary to respond to these facilities, the owner or operator shall pay to the state a fee as established by department rule under Section [63-38-3.2] 63J-1-303, to be assessed:
(a) per ton of storage cask and high level nuclear waste per year for storage, decay in storage, treatment, or disposal of high level nuclear waste;
(b) per ton of transportation cask and high level nuclear waste for each transfer of high level nuclear waste;
(c) per ton of storage cask and greater than class C radioactive waste for the storage, decay in storage, treatment, or disposal of greater than class C radioactive waste; and
(d) per ton of transportation cask and greater than class C radioactive waste for each transfer of greater than class C radioactive waste.
(3) Funds collected under Subsection (2) shall be placed in the Nuclear Accident and Hazard Compensation Account, created in Subsection 19-3-309(3).
(4) The owner or operator of the facility shall pay the fees imposed under this section to the department on or before the 15th day of the month following the month in which the fee accrued.
(5) Annual fees due under this part accrue on July 1 of each year and shall be paid to the department by July 15 of that year.
Section 225. Section 19-3-315 is amended to read:
19-3-315
. Transportation requirements.(1) A person may not transport wastes in the state, including on highways, roads, rail, by air, or otherwise, without:
(a) having received approval from the state Department of Transportation; and
(b) having demonstrated compliance with rules of the state Department of Transportation.
(2) The Department of Transportation may:
(a) make rules requiring a transport and route approval permit, weight restrictions, tracking systems, and state escort; and
(b) assess appropriate fees as established under Section [63-38-3.2] 63J-1-303 for each shipment of waste, consistent with the requirements and limitations of federal law.
(3) The Department of Environmental Quality shall establish any other transportation rules as necessary to protect the public health, safety, and environment.
(4) Unless expressly authorized by the governor, with the concurrence of the Legislature, an easement or other interest in property may not be granted upon any lands within the state for a right of way for any carrier transportation system that:
(a) is not a class I common or contract rail carrier organized and doing business prior to January 1, 1999; and
(b) transports high level nuclear waste or greater than class C radioactive waste to a storage facility within the state.
Section 226. Section 19-4-104 is amended to read:
19-4-104
. Powers of board.(1) The board may:
(a) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(i) establishing standards that prescribe the maximum contaminant levels in any public water system and provide for monitoring, record-keeping, and reporting of water quality related matters;
(ii) governing design, construction, operation, and maintenance of public water systems;
(iii) granting variances and exemptions to the requirements established under this chapter that are not less stringent than those allowed under federal law;
(iv) protecting watersheds and water sources used for public water systems; and
(v) governing capacity development in compliance with Section 1420 of the federal Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.;
(b) issue orders necessary to enforce the provisions of this chapter, enforce the orders by appropriate administrative and judicial proceedings, and institute judicial proceedings to secure compliance with this chapter;
(c) (i) hold hearings relating to the administration of this chapter and compel the attendance of witnesses, the production of documents and other evidence, administer oaths and take testimony, and receive evidence as necessary; or
(ii) appoint hearing officers and authorize them to exercise powers under this Subsection (1)(c);
(d) require the submission to the executive secretary of plans and specifications for construction of, substantial addition to, or alteration of public water systems for review and approval by the board before that action begins and require any modifications or impose any conditions that may be necessary to carry out the purposes of this chapter;
(e) advise, consult, cooperate with, provide technical assistance to, and enter into agreements, contracts, or cooperative arrangements with state, federal, or interstate agencies, municipalities, local health departments, educational institutions, or others necessary to carry out the purposes of this chapter and to support the laws, ordinances, rules, and regulations of local jurisdictions;
(f) request and accept financial assistance from other public agencies, private entities, and the federal government to carry out the purposes of this chapter;
(g) develop and implement an emergency plan to protect the public when declining drinking water quality or quantity creates a serious health risk and issue emergency orders if a health risk is imminent;
(h) authorize employees or agents of the department, after reasonable notice and presentation of credentials, to enter any part of a public water system at reasonable times to inspect the facilities and water quality records required by board rules, conduct sanitary surveys, take samples, and investigate the standard of operation and service delivered by public water systems;
(i) meet the requirements of federal law related or pertaining to drinking water; and
(j) exercise all other incidental powers necessary to carry out the purpose of this chapter.
(2) (a) The board may adopt and enforce standards and establish fees for certification of operators of any public water system.
(b) The board may not require certification of operators for a water system serving a population of 800 or less except:
(i) to the extent required for compliance with Section 1419 of the federal Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.; and
(ii) for a system that is required to treat its drinking water.
(c) The certification program shall be funded from certification and renewal fees.
(3) Routine extensions or repairs of existing public water systems that comply with the rules and do not alter the system's ability to provide an adequate supply of water are exempt from the provisions of Subsection (1)(d).
(4) (a) The board may adopt and enforce standards and establish fees for certification of persons engaged in administering cross connection control programs or backflow prevention assembly training, repair, and maintenance testing.
(b) The certification program shall be funded from certification and renewal fees.
Section 227. Section 19-4-109 is amended to read:
19-4-109
. Violations -- Penalties -- Reimbursement for expenses.(1) Any person that violates any rule or order made or issued pursuant to this chapter is subject to a civil penalty of not more than $1,000 per day for each day of violation. The board may assess and make a demand for payment of a penalty under this section by directing the executive secretary to issue a notice of agency action under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) (a) Any person that willfully violates any rule or order made or issued pursuant to this chapter, or that willfully fails to take any corrective action required by such an order, is guilty of a class B misdemeanor and subject to a fine of not more than $5,000 per day for each day of violation.
(b) In addition, the person is subject, in a civil proceeding, to a penalty of not more than $5,000 per day for each day of violation.
(3) (a) Except as provided in Subsection (b), all penalties assessed and collected under the authority of this section shall be deposited in the General Fund.
(b) The department may reimburse itself and local governments from monies collected from civil penalties for extraordinary expenses incurred in environmental enforcement activities.
(c) The department shall regulate reimbursements by making rules that:
(i) define qualifying environmental enforcement activities; and
(ii) define qualifying extraordinary expenses.
Section 228. Section 19-5-104 is amended to read:
19-5-104
. Powers and duties of board.(1) The board has the following powers and duties, but the board shall give priority to pollution that results in hazards to the public health:
(a) develop programs for the prevention, control, and abatement of new or existing pollution of the waters of the state;
(b) advise, consult, and cooperate with other agencies of the state, the federal government, other states, and interstate agencies, and with affected groups, political subdivisions, and industries to further the purposes of this chapter;
(c) encourage, participate in, or conduct studies, investigations, research, and demonstrations relating to water pollution and causes of water pollution as the board finds necessary to discharge its duties;
(d) collect and disseminate information relating to water pollution and the prevention, control, and abatement of water pollution;
(e) adopt, modify, or repeal standards of quality of the waters of the state and classify those waters according to their reasonable uses in the interest of the public under conditions the board may prescribe for the prevention, control, and abatement of pollution;
(f) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, taking into account Subsection (2), to:
(i) implement the awarding of construction loans to political subdivisions and municipal authorities under Section 11-8-2, including:
(A) requirements pertaining to applications for loans;
(B) requirements for determination of eligible projects;
(C) requirements for determination of the costs upon which loans are based, which costs may include engineering, financial, legal, and administrative expenses necessary for the construction, reconstruction, and improvement of sewage treatment plants, including major interceptors, collection systems, and other facilities appurtenant to the plant;
(D) a priority schedule for awarding loans, in which the board may consider in addition to water pollution control needs any financial needs relevant, including per capita cost, in making a determination of priority; and
(E) requirements for determination of the amount of the loan;
(ii) implement the awarding of loans for nonpoint source projects pursuant to Section 73-10c-4.5;
(iii) set effluent limitations and standards subject to Section 19-5-116;
(iv) implement or effectuate the powers and duties of the board; and
(v) protect the public health for the design, construction, operation, and maintenance of underground wastewater disposal systems, liquid scavenger operations, and vault and earthen pit privies;
(g) issue, modify, or revoke orders:
(i) prohibiting or abating discharges;
(ii) requiring the construction of new treatment works or any parts of them, or requiring the modification, extension, or alteration of existing treatment works as specified by board rule or any parts of them, or the adoption of other remedial measures to prevent, control, or abate pollution;
(iii) setting standards of water quality, classifying waters or evidencing any other determination by the board under this chapter; and
(iv) requiring compliance with this chapter and with rules made under this chapter;
(h) review plans, specifications, or other data relative to disposal systems or any part of disposal systems, and issue construction permits for the installation or modification of treatment works or any parts of them;
(i) after public notice and opportunity for a public hearing, issue, continue in effect, revoke, modify, or deny discharge permits under reasonable conditions the board may prescribe to control the management of sewage sludge or to prevent or control the discharge of pollutants, including effluent limitations for the discharge of wastes into the waters of the state;
(j) give reasonable consideration in the exercise of its powers and duties to the economic impact of water pollution control on industry and agriculture;
(k) exercise all incidental powers necessary to carry out the purposes of this chapter, including delegation to the department of its duties as appropriate to improve administrative efficiency;
(l) meet the requirements of federal law related to water pollution;
(m) establish and conduct a continuing planning process for control of water pollution including the specification and implementation of maximum daily loads of pollutants;
(n) make rules governing inspection, monitoring, recordkeeping, and reporting requirements for underground injections and require permits for them, to protect drinking water sources, except for wells, pits, and ponds covered by Section 40-6-5 regarding gas and oil, recognizing that underground injection endangers drinking water sources if:
(i) injection may result in the presence of any contaminant in underground water which supplies or can reasonably be expected to supply any public water system, as defined in Section 19-4-102; and
(ii) the presence of the contaminant may result in the public water system not complying with any national primary drinking water standards or may otherwise adversely affect the health of persons;
(o) make rules governing sewage sludge management, including permitting, inspecting, monitoring, recordkeeping, and reporting requirements;
(p) adopt and enforce rules and establish fees to cover the costs of testing for certification of operators of treatment works and sewerage systems operated by political subdivisions;
(q) notwithstanding the provisions of Section 19-4-112, make rules governing design and construction of irrigation systems which convey sewage treatment facility effluent of human origin in pipelines under pressure, unless contained in surface pipes wholly on private property and for agricultural purposes, and which are constructed after May 4, 1998; and
(r) (i) approve, approve in part, approve with conditions, or deny, in writing, an application for water reuse under Title 73, Chapter 3c, Wastewater Reuse Act; and
(ii) issue an operating permit for water reuse under Title 73, Chapter 3c, Wastewater Reuse Act.
(2) In determining eligible project costs and in establishing priorities pursuant to Subsection (1)(f)(i), the board shall take into consideration the availability of federal grants.
(3) In establishing certification rules under Subsection (1)(p), the board shall:
(a) base the requirements for certification on the size, treatment process type, and complexity of the treatment works and sewerage systems operated by political subdivisions;
(b) allow operators until three years after the date of adoption of the rules to obtain initial certification;
(c) allow new operators one year from the date they are hired by a treatment plant or sewerage system or three years after the date of adoption of the rules, whichever occurs later, to obtain certification;
(d) issue certification upon application and without testing, at a grade level comparable to the grade of current certification to operators who are currently certified under the voluntary certification plan for wastewater works operators as recognized by the board; and
(e) issue a certification upon application and without testing that is valid only at the treatment works or sewerage system where that operator is currently employed if the operator:
(i) is in charge of and responsible for the treatment works or sewerage system on March 16, 1991;
(ii) has been employed at least ten years in the operation of that treatment works or sewerage system prior to March 16, 1991; and
(iii) demonstrates to the board his capability to operate the treatment works or sewerage system at which he is currently employed by providing employment history and references as required by the board.
Section 229. Section 19-5-113 is amended to read:
19-5-113
. Power of board to enter property for investigation -- Records and reports required of owners or operators.(1) The board or its authorized representative has, after presentation of credentials, the authority to enter at reasonable times upon any private or public property for the purpose of:
(a) sampling, inspecting, or investigating matters or conditions relating to pollution or the possible pollution of any waters of the state, effluents or effluent sources, monitoring equipment, or sewage sludge; and
(b) reviewing and copying records required to be maintained under this chapter.
(2) (a) The board may require a person managing sewage sludge, or the owner or operator of a disposal system, including a system discharging into publicly-owned treatment works, to:
(i) establish and maintain reasonable records and make reports relating to the operation of the system or the management of the sewage sludge;
(ii) install, use, and maintain monitoring equipment or methods;
(iii) sample, and analyze effluents or sewage sludges; and
(iv) provide other information reasonably required.
(b) The records, reports, and information shall be available to the public except as provided in Subsection 19-1-306(2) or Subsections [63-2-304] 63G-2-305(1) and (2), Government Records Access and Management Act, as appropriate, for other than effluent information.
Section 230. Section 19-5-120 is amended to read:
19-5-120
. Sewage permit program fee.(1) The department may assess a fee established under Section [63-38-3.2] 63J-1-303 against persons required to obtain a permit under Section 19-5-108 for the management of sewage sludge, to be applied to the costs of administering the sewage permit program required by this chapter.
(2) The total of the combined fees assessed against all permittees under this section may not be more than $28,000 annually.
(3) In establishing the fee for each sludge disposal permit holder, the department shall take into account the proportionate size of the population served by the permit holder.
(4) All proceeds from the fee shall be applied to the administering of the sewage permit program required by this chapter.
Section 231. Section 19-5-121 is amended to read:
19-5-121
. Underground wastewater disposal systems -- Certification required to design, inspect, maintain, or conduct percolation or soil tests -- Exemptions -- Rules -- Fees.(1) As used in this section, "maintain" does not include the pumping of an underground wastewater disposal system.
(2) (a) Except as provided in Subsections (2)(b) and (2)(c), beginning January 1, 2002, a person may not design, inspect, maintain, or conduct percolation or soil tests for an underground wastewater disposal system, without first obtaining certification from the board.
(b) An individual is not required to obtain certification from the board to maintain an underground wastewater disposal system that serves a noncommercial, private residence owned by the individual or a member of the individual's family and in which the individual or a member of the individual's family resides or an employee of the individual resides without payment of rent.
(c) The board shall make rules allowing an uncertified individual to conduct percolation or soil tests for an underground wastewater disposal system that serves a noncommercial, private residence owned by the individual and in which the individual resides or intends to reside, or which is intended for use by an employee of the individual without payment of rent, if the individual:
(i) has the capability of properly conducting the tests; and
(ii) is supervised by a certified individual when conducting the tests.
(3) (a) The board shall adopt and enforce rules for the certification and recertification of individuals who design, inspect, maintain, or conduct percolation or soil tests for underground wastewater disposal systems.
(b) (i) The rules shall specify requirements for education and training and the type and duration of experience necessary to obtain certification.
(ii) The rules shall recognize the following in meeting the requirements for certification:
(A) the experience of a contractor licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, who has five or more years of experience installing underground wastewater disposal systems;
(B) the experience of an environmental health scientist licensed under Title 58, Chapter 20a, Environmental Health Scientist Act; or
(C) the educational background of a professional engineer licensed under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act.
(iii) If eligibility for certification is based on experience, the applicant for certification must show proof of experience.
(4) The department may establish fees in accordance with Section [63-38-3.2] 63J-1-303 for the testing and certification of individuals who design, inspect, maintain, or conduct percolation or soil tests for underground wastewater disposal systems.
Section 232. Section 19-5-122 is amended to read:
19-5-122
. Underground wastewater disposal systems -- Fee imposed on new systems.(1) Beginning July 1, 2001, a one-time fee is imposed on each new underground wastewater disposal system installed.
(2) (a) From July 1, 2001 through June 30, 2002, the fee shall be $25.
(b) Beginning July 1, 2002, the fee shall be established by the department in accordance with Section [63-38-3.2] 63J-1-303.
(3) (a) The fee shall be paid when plans and specifications for the construction of a new underground wastewater disposal system are approved by the local health department or the Department of Environmental Quality.
(b) A local health department shall remit the fee revenue to the Division of Finance quarterly.
(4) The fee revenue shall be:
(a) deposited into the Underground Wastewater Disposal Restricted Account created in Section 19-5-123; and
(b) used to pay for costs of underground wastewater disposal system training programs.
Section 233. Section 19-6-102.6 is amended to read:
19-6-102.6
. Legislative participation in landfill siting disputes.(1) (a) Upon the Legislature's receipt of a written request by a county governing body or a member of the Legislature whose district is involved in a landfill siting dispute, the president of the Senate and the speaker of the House shall appoint a committee as described under Subsection (2) and volunteers under Subsection (3) to actively seek an acceptable location for a municipal landfill if there is a dispute between two or more counties regarding the proposed site of a municipal landfill.
(b) The president and the speaker shall consult with the legislators appointed under this subsection regarding their appointment of members of the committee under Subsection (2), and volunteers under Subsection (3).
(2) The committee shall consist of the following members, appointed jointly by the president and the speaker:
(a) two members from the Senate:
(i) one member from the county where the proposed landfill site is located; and
(ii) one member from the other county involved in the dispute, but if more than one other county is involved, still only one senator from one of those counties;
(b) two members from the House:
(i) one member from the county where the proposed landfill site is located; and
(ii) one member from the other county involved in the dispute, but if more than one other county is involved, still only one representative from one of those counties;
(c) one individual whose current principal residence is within a community located within 20 miles of any exterior boundary of the proposed landfill site, but if no community is located within 20 miles of the community, then an individual whose current residence is in the community nearest the proposed landfill site;
(d) two resident citizens from the county where the proposed landfill site is located; and
(e) three resident citizens from the other county involved in the dispute, but if more than one other county is involved, still only three citizen representatives from those counties.
(3) Two volunteers shall be appointed under Subsection (1). The volunteers shall be individuals who agree to assist, as requested, the committee members who represent the interests of the county where the proposed landfill site is located.
(4) (a) Funding and staffing for the committee shall be provided jointly and equally by the Senate and the House.
(b) The Department of Environmental Quality shall, at the request of the committee and as funds are available within the department's existing budget, provide support in arranging for committee hearings to receive public input and secretarial staff to make a record of those hearings.
(5) The committee shall:
(a) appoint a chair from among its members;
(b) meet as necessary, but not less often than once per month, until its work is completed.
(6) The committee shall report in writing the results of its work and any recommendations it may have for legislative action to the interim committees of the Legislature as directed by the Legislative Management Committee.
(7) (a) All action by the division, the executive secretary, or the division board of the Department of Environmental Quality regarding any proposed municipal landfill site, regarding which a request has been submitted under Subsection (1), is tolled for one year from the date the request is submitted, or until the committee completes its work under this section, whichever occurs first. This subsection also tolls the time limits imposed by Subsection 19-6-108(13).
(b) This subsection applies to any proposed landfill site regarding which the department has not granted final approval on or before March 21, 1995.
(c) As used in this subsection, "final approval" means final agency action taken after conclusion of proceedings under Sections [63-46b-9] 63G-4-207 through [63-46b-18] 63G-4-405.
(8) This section does not apply to a municipal solid waste facility that is, on or before March 23, 1994:
(a) operating under an existing permit or the renewal of an existing permit issued by the local health department or other authority granted by the Department of Environmental Quality; or
(b) operating under the approval of the local health department, regardless of whether a formal permit has been issued.
Section 234. Section 19-6-105 is amended to read:
19-6-105
. Rules of board.(1) The board may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) establishing minimum standards for protection of human health and the environment, for the storage, collection, transport, recovery, treatment, and disposal of solid waste, including requirements for the approval of plans for the construction, extension, operation, and closure of solid waste disposal sites;
(b) identifying wastes which are determined to be hazardous, including wastes designated as hazardous under Sec. 3001 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C., Sec. 6921, et seq.;
(c) governing generators and transporters of hazardous wastes and owners and operators of hazardous waste treatment, storage, and disposal facilities, including requirements for keeping records, monitoring, submitting reports, and using a manifest, without treating high-volume wastes such as cement kiln dust, mining wastes, utility waste, gas and oil drilling muds, and oil production brines in a manner more stringent than they are treated under federal standards;
(d) requiring an owner or operator of a treatment, storage, or disposal facility that is subject to a plan approval under Section 19-6-108 or which received waste after July 26, 1982, to take appropriate corrective action or other response measures for releases of hazardous waste or hazardous waste constituents from the facility, including releases beyond the boundaries of the facility;
(e) specifying the terms and conditions under which the board shall approve, disapprove, revoke, or review hazardous wastes operation plans;
(f) governing public hearings and participation under this part;
(g) establishing standards governing underground storage tanks, in accordance with Title 19, Chapter 6, Part 4, Underground Storage Tank Act;
(h) relating to the collection, transportation, processing, treatment, storage, and disposal of infectious waste in health facilities in accordance with the requirements of Section 19-6-106;
(i) defining closure plans as major or minor;
(j) defining modification plans as major or minor; and
(k) prohibiting refuse, offal, garbage, dead animals, decaying vegetable matter, or organic waste substance of any kind to be thrown, or remain upon or in any street, road, ditch, canal, gutter, public place, private premises, vacant lot, watercourse, lake, pond, spring, or well.
(2) If any of the following are determined to be hazardous waste and are therefore subjected to the provisions of this part, the board shall, in the case of landfills or surface impoundments that receive the solid wastes, take into account the special characteristics of the wastes, the practical difficulties associated with applying requirements for other wastes to the wastes, and site specific characteristics, including the climate, geology, hydrology, and soil chemistry at the site, if the modified requirements assure protection of human health and the environment and are no more stringent than federal standards applicable to wastes:
(a) solid waste from the extraction, beneficiation, or processing of ores and minerals, including phosphate rock and overburden from the mining of uranium;
(b) fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels; and
(c) cement kiln dust waste.
(3) The board shall establish criteria for siting commercial hazardous waste treatment, storage, and disposal facilities, including commercial hazardous waste incinerators. Those criteria shall apply to any facility or incinerator for which plan approval is required under Section 19-6-108.
Section 235. Section 19-6-108.3 is amended to read:
19-6-108.3
. Executive secretary to issue written assurances, make determinations, and partition operation plans -- Board to make rules.(1) Based upon risk to human health or the environment from potential exposure to hazardous waste, the executive secretary may:
(a) even if corrective action is incomplete, issue an enforceable written assurance to a person acquiring an interest in real property covered by an operation plan that the person to whom the assurance is issued:
(i) is not a permittee under the operation plan; and
(ii) will not be subject to an enforcement action under this part for contamination that exists or for violations under this part that occurred before the person acquired the interest in the real property covered by the operation plan;
(b) determine that corrective action to the real property covered by the operation plan is:
(i) complete;
(ii) incomplete;
(iii) unnecessary with an environmental covenant; or
(iv) unnecessary without an environmental covenant; and
(c) partition from an operation plan a portion of real property subject to the operation plan after determining that corrective action for that portion of real property is:
(i) complete;
(ii) unnecessary with an environmental covenant; or
(iii) unnecessary without an environmental covenant.
(2) If the executive secretary determines that an environmental covenant is necessary under Subsection (1)(b) or (c), the executive secretary shall require that the real property be subject to an environmental covenant according to Title 57, Chapter 25, Uniform Environmental Covenants Act.
(3) An assurance issued under Subsection (1) protects the person to whom the assurance is issued from any cost recovery and contribution action under state law.
(4) By following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the board may adopt rules to administer this section.
Section 236. Section 19-6-303 is amended to read:
19-6-303
. Rulemaking provisions.The executive director may regulate hazardous substances releases by making rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the substantive requirements of CERCLA, to establish the requirements for remedial investigation studies and remedial action plans.
Section 237. Section 19-6-321 is amended to read:
19-6-321
. Construction with other state and federal laws -- Governmental immunity.(1) Except as provided in Subsection (2), nothing in this part affects or modifies in any way the obligations or liability of any person under a contract or any other provision of this part or state or federal law, including common law, for damages, indemnification, injury, or loss associated with a hazardous material or substance release or a substantial threat of a hazardous material or substance release.
(2) In addition to the governmental immunity granted in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, the state and its political subdivisions are not liable for actions performed under this part except as a result of intentional misconduct or gross negligence including reckless, willful, or wanton misconduct.
(3) Nothing in this part affects, limits, or modifies in any way the authority granted to the state, any state agency, or any political subdivision under other state or federal law.
Section 238. Section 19-6-326 is amended to read:
19-6-326
. Written assurances.(1) Based upon risk to human health or the environment from potential exposure to hazardous substances or materials, the executive director may issue enforceable written assurances to a bona fide prospective purchaser, contiguous property owner, or innocent landowner of real property that no enforcement action under this part may be initiated regarding that real property against the person to whom the assurances are issued.
(2) An assurance granted under Subsection (1) grants the person to whom the assurance is issued protection from imposition of any state law cost recovery and contribution actions under this part.
(3) The executive director may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary for the administration of this section.
Section 239. Section 19-6-403 is amended to read:
19-6-403
. Powers and duties of board.(1) (a) The board shall regulate underground storage tanks and petroleum storage tanks by applying the provisions of this part and by making rules for:
(i) certification of tank installers, inspectors, testers, and removers;
(ii) registration of tanks;
(iii) administration of the petroleum storage tank program;
(iv) format and required information regarding records to be kept by tank owners or operators who are participating in the fund;
(v) voluntary participation in the fund for above ground petroleum storage tanks and tanks exempt from regulation under 40 C.F.R., Part 280, Subpart (B), and specified in Section 19-6-415; and
(vi) certification of underground storage tank consultants, including requirements for minimum education or experience, which rules shall recognize the educational background of a professional engineer licensed under Title 58, Chapter 22, Professional Engineers and Land Surveyors Licensing Act, as meeting the education requirements for certification, but shall require proof of experience that meets certification requirements.
(b) The board shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, adopting requirements for underground storage tanks contained in Subtitle I of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6991c, et seq., and other future applicable final federal regulations.
(2) The board shall ensure that the rules made under the authority of Subsection (1) meet federal requirements for the state's assumption of primacy in the regulation of underground storage tanks, as provided in Section 9004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6991c, et seq.
Section 240. Section 19-6-405.3 is amended to read:
19-6-405.3
. Creation of Petroleum Storage Tank Loan Fund -- Purposes -- Loan eligibility -- Loan restrictions -- Rulemaking.(1) There is created the revolving loan fund entitled the Petroleum Storage Tank Loan Fund.
(2) The sources of monies for the loan fund are:
(a) appropriations to the loan fund;
(b) principal and interest received from the repayment of loans made by the executive secretary under Subsection (3); and
(c) all investment income derived from money in the fund.
(3) The executive secretary may loan, in accordance with this section, monies available in the loan fund to persons to be used for:
(a) upgrading petroleum storage tanks and associated piping with corrosion protection, or spill and overfill prevention equipment as necessary to meet the federal deadline required under 40 CFR 280.21;
(b) replacing underground storage tanks; or
(c) permanently closing underground storage tanks.
(4) A person may apply to the executive secretary for a loan under Subsection (3) if all tanks owned or operated by that person are in substantial compliance with all state and federal requirements or will be brought into substantial compliance using money from the loan fund.
(5) The executive secretary shall consider loan applications under Subsection (4) to meet the following objectives:
(a) support availability of gasoline in rural parts of the state;
(b) support small businesses; and
(c) reduce the threat of a petroleum release endangering the environment.
(6) Loans made under this section shall:
(a) be for no more than $45,000 for all tanks at any one facility;
(b) be for no more than $15,000 per tank;
(c) be for no more than 80% of the total cost of:
(i) upgrading a tank and associated piping to meet requirements of 40 CFR 280.21;
(ii) replacing the underground storage tank; or
(iii) permanently closing the underground storage tank;
(d) have a fixed annual interest rate of 3%;
(e) have a term no longer than ten years;
(f) be made on the condition the loan applicant obtains adequate security for the loan as established by board rule under Subsection (7); and
(g) comply with rules made by the board under Subsection (7).
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules establishing:
(a) form, content, and procedure for loan applications;
(b) criteria and procedures for prioritizing loan applications;
(c) requirements and procedures for securing loans;
(d) procedures for making the loans;
(e) procedures for administering and ensuring repayment of loans, including late payment penalties; and
(f) procedures for recovering on defaulted loans.
(8) The decisions of the executive secretary in loaning money from the loan fund and otherwise administering the loan fund are not subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(9) The Legislature shall appropriate monies for administration of the loan fund to the department from the loan fund.
(10) The executive secretary may enter into agreements with public entities or private organizations to perform any tasks associated with administration of the loan fund.
Section 241. Section 19-6-408 is amended to read:
19-6-408
. Underground storage tank registration fee -- Processing fee for tanks not in the program.(1) The department may assess an annual underground storage tank registration fee against owners or operators of underground storage tanks that have not been closed. These fees shall be:
(a) billed per facility;
(b) due on July 1 annually;
(c) deposited with the department as dedicated credits;
(d) used by the department for the administration of the underground storage tank program outlined in this part; and
(e) established under Section [63-38-3.2] 63J-1-303.
(2) (a) In addition to the fee under Subsection (1), an owner or operator who elects to demonstrate financial assurance through a mechanism other than the Environmental Assurance Program shall pay a processing fee of:
(i) for fiscal year 1997-98, $1,000 for each financial assurance mechanism document submitted to the division for review; and
(ii) on and after July 1, 1998, a processing fee established under Section [63-38-3.2] 63J-1-303.
(b) If a combination of financial assurance mechanisms is used to demonstrate financial assurance, the fee under Subsection (2)(a) shall be paid for each document submitted.
(c) As used in this Subsection (2), "financial assurance mechanism document" may be a single document that covers more than one facility through a single financial assurance mechanism.
(3) Any funds provided for administration of the underground storage tank program under this section that are not expended at the end of the fiscal year lapse into the Petroleum Storage Tank Restricted Account created in Section 19-6-405.5.
(4) The executive secretary shall provide all owners or operators who pay the annual underground storage tank registration fee a certificate of registration.
(5) (a) The executive secretary may issue a notice of agency action assessing a civil penalty of $1,000 per facility if an owner or operator of an underground storage tank facility fails to pay the required fee within 60 days after the July 1 due date.
(b) The registration fee and late payment penalty accrue interest at 12% per annum.
(c) If the registration fee, late payment penalty, and interest accrued under this subsection are not paid in full within 60 days after the July 1 due date any certificate of compliance issued prior to the July 1 due date lapses. The executive secretary may not reissue the certificate of compliance until full payment under this subsection is made to the department.
(d) The executive secretary may waive any penalty assessed under this subsection if no fuel has been dispensed from the tank on or after July 1, 1991.
Section 242. Section 19-6-410.5 is amended to read:
19-6-410.5
. Environmental assurance program -- Participant fee.(1) As used in this section:
(a) "Cash balance" means cash plus investments and current accounts receivable minus current accounts payable, excluding the liabilities estimated by the state risk manager.
(b) "Commission" means the State Tax Commission, as defined in Section 59-1-101.
(2) (a) There is created an Environmental Assurance Program.
(b) The program shall provide to participating owners and operators, upon payment of the fee imposed under Subsection (4), assistance with satisfying the financial responsibility requirements of 40 CFR, Part 280, Subpart H, by providing funds from the Petroleum Storage Tank Trust Fund established in Section 19-6-409, subject to the terms and conditions of Chapter 6, Part 4, Underground Storage Tank Act, and rules implemented under that part.
(3) (a) Subject to Subsection (3)(b), participation in the program is voluntary.
(b) Each owner and operator seeking to satisfy financial responsibility requirements through the program shall use the program for all petroleum underground storage tanks that the owner or operator owns or operates.
(4) (a) There is assessed an environmental assurance fee of 1/2 cent per gallon on the first sale or use of petroleum products in the state.
(b) The environmental assurance fee and any other revenue collected under this section shall be deposited in the Petroleum Storage Tank Trust Fund created in Section 19-6-409 and used solely for the purposes listed in Section 19-6-409.
(5) (a) The commission shall collect the environmental assurance fee and any penalties and interest imposed under this section.
(b) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules to establish:
(i) the method of payment of the environmental assurance fee;
(ii) the procedure for reimbursement or exemption of owners or operators who do not participate in the program, including owners and operators of above ground storage tanks; and
(iii) the procedure for confirming with the department those owners and operators who qualify for reimbursement or exemption under Subsection (5)(b)(ii).
(c) The commission may retain an amount not to exceed 2.5% of fees collected under this section for the cost to it of rendering its services.
(6) (a) The person or entity responsible for payment of the fee under this section shall, by the last day of the month following the month in which the sale occurs:
(i) complete and submit the form prescribed by the commission; and
(ii) pay the fee to the commission.
(b) (i) The penalties and interest for failure to file the form or to pay the environmental assurance fee are the same as the penalties and interest under Sections 59-1-401 and 59-1-402.
(ii) The commission shall deposit penalties and interest collected under this section in the Petroleum Storage Tank Trust Fund.
(c) The commission shall report to the department any person or entity who is delinquent in payment of the fee under this section.
(7) (a) (i) If the cash balance of the Petroleum Storage Tank Trust Fund on June 30 of any year exceeds $20,000,000, the assessment of the environmental assurance fee as provided in Subsection (4) is reduced to 1/4 cent per gallon beginning November 1.
(ii) The reduction shall remain in effect until modified by the Legislature in a general or special session.
(b) The commission shall determine the cash balance of the fund each year as of June 30.
(c) Before September 1 of each year, the department shall provide the commission with the accounts payable of the fund as of June 30.
Section 243. Section 19-6-427 is amended to read:
19-6-427
. Liability of any person under other laws -- Additional state and governmental immunity -- Exceptions.(1) Except as provided in Subsection (2), nothing in this part affects or modifies in any way:
(a) the obligations or liability of any person under any other provision of this part or state or federal law, including common law, for damages, injury, or loss resulting from a release or substantial threat of a release of petroleum from an underground storage tank or a petroleum storage tank; or
(b) the liability of any person for costs incurred except as provided in this part.
(2) In addition to the governmental immunity granted in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, the state and its political subdivisions are not liable for actions performed under this part except as a result of intentional misconduct or gross negligence including reckless, willful, or wanton misconduct.
Section 244. Section 19-6-704 is amended to read:
19-6-704
. Powers and duties of the board.(1) The board shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer this part and to comply with 40 CFR 279, Standards for the Management of Used Oil, to ensure the state's primacy to manage used oil under 40 CFR 279. For these purposes the board shall:
(a) conduct adjudicative hearings as required in this part under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(b) establish by rule conditions and procedures for registration and revocation of registration as a used oil collection center, used oil aggregation point, or DIYer used oil collection center;
(c) provide by rule that used oil aggregation points that do not accept DIYer used oil are required to comply with used oil collection standards under this part, but are not required to be permitted or registered;
(d) establish by rule conditions and fees required to obtain permits and operate as used oil transporters, used oil transfer facilities, used oil processors and rerefiners, and used oil fuel marketers;
(e) establish by rule the amount of liability insurance or other financial responsibility the applicant shall have to qualify for a permit under Subsection (1)(d);
(f) establish by rule the form and amount of reclamation surety required for reclamation of any site or facility required to be permitted under this part;
(g) after public notice and opportunity for a public hearing, hear and act on permit issues appealed under Subsection 19-6-712(2);
(h) establish by rule standards for tracking, analysis, and recordkeeping regarding used oil subject to regulation under this part, including:
(i) manifests for handling and transferring used oil;
(ii) analyses necessary to determine if used oil is on-specification or off-specification;
(iii) records documenting date, quantities, and character of used oil transported, processed, transferred, or sold;
(iv) records documenting persons between whom transactions under this subsection occurred; and
(v) exemption of DIYer used oil collection centers from this subsection except as necessary to verify volumes of used oil picked up by a permitted transporter and the transporter's name and federal EPA identification number;
(i) authorize inspections and audits of facilities, centers, and operations subject to regulation under this part;
(j) establish by rule standards for:
(i) used oil generators;
(ii) used oil collection centers;
(iii) DIYer used oil collection centers;
(iv) aggregation points;
(v) curbside used oil collection programs;
(vi) used oil transporters;
(vii) used oil transfer facilities;
(viii) used oil burners;
(ix) used oil processors and rerefiners; and
(x) used oil marketers;
(k) establish by rule standards for determining on-specification and off-specification used oil and specified mixtures of used oil, subject to Section 19-6-707 regarding rebuttable presumptions;
(l) establish by rule standards for closure, remediation, and response to releases involving used oil; and
(m) establish a public education program to promote used oil recycling and use of used oil collection centers.
(2) The board may:
(a) hold hearings relating to any aspect of or matter in the administration of this part and compel the attendance of witnesses and the production of documents and other evidence, administer oaths and take testimony, and receive evidence as necessary;
(b) require retention and submission of records required under this part; and
(c) require audits of records and recordkeeping procedures required under this part and rules made under this part, except that audits of records regarding the fee imposed and collected by the commission under Sections 19-6-714 and 19-6-715 are the responsibility of the commission under Section 19-6-716.
Section 245. Section 19-6-721 is amended to read:
19-6-721
. Violations -- Proceedings -- Orders.(1) A person who violates any provision of this part or any order, permit, rule, or other requirement issued or adopted under this part is subject in a civil proceeding to a penalty of not more than $10,000 per day for each day of violation, in addition to any fine otherwise imposed for violation of this part.
(2) (a) The board may bring suit in the name of the state to restrain the person from continuing the violation and to require the person to perform necessary remediation.
(b) Suit under Subsection (2)(a) may be brought in any court in the state having jurisdiction in the county of residence of the person charged or in the county where the violation is alleged to have occurred.
(c) The court may grant prohibitory and mandatory injunctions, including temporary restraining orders.
(3) When the executive secretary finds a situation exists in violation of this part that presents an immediate threat to the public health or welfare, the executive secretary may issue an emergency order under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) All penalties collected under this section shall be deposited in the account created in Section 19-6-719.
Section 246. Section 19-6-803 is amended to read:
19-6-803
. Definitions.As used in this part:
(1) "Abandoned waste tire pile" means a waste tire pile regarding which the local department of health has not been able to:
(a) locate the persons responsible for the tire pile; or
(b) cause the persons responsible for the tire pile to remove it.
(2) (a) "Beneficial use" means the use of chipped tires in a manner that is not recycling, storage, or disposal, but that serves as a replacement for another product or material for specific purposes.
(b) "Beneficial use" includes the use of chipped tires:
(i) as daily landfill cover;
(ii) for civil engineering purposes;
(iii) as low-density, light-weight aggregate fill; or
(iv) for septic or drain field construction.
(c) "Beneficial use" does not include the use of waste tires or material derived from waste tires:
(i) in the construction of fences; or
(ii) as fill, other than low-density, light-weight aggregate fill.
(3) "Board" means the Solid and Hazardous Waste Control Board created under Section 19-1-106.
(4) "Chip" or "chipped tire" means a two inch square or smaller piece of a waste tire.
(5) "Commission" means the Utah State Tax Commission.
(6) (a) "Consumer" means a person who purchases a new tire to satisfy a direct need, rather than for resale.
(b) "Consumer" includes a person who purchases a new tire for a motor vehicle to be rented or leased.
(7) "Crumb rubber" means waste tires that have been ground, shredded, or otherwise reduced in size such that the particles are less than or equal to 3/8 inch in diameter and are 98% wire free by weight.
(8) "Disposal" means the deposit, dumping, or permanent placement of any waste tire in or on any land or in any water in the state.
(9) "Dispose of" means to deposit, dump, or permanently place any waste tire in or on any land or in any water in the state.
(10) "Division" means the Division of Solid and Hazardous Waste created in Section 19-1-105, within the Department of Environmental Quality.
(11) "Executive secretary" means the executive secretary of the Solid and Hazardous Waste Control Board created in Section 19-1-106.
(12) "Fund" means the Waste Tire Recycling Fund created in Section 19-6-807.
(13) "Landfill waste tire pile" means a waste tire pile:
(a) located within the permitted boundary of a landfill operated by a governmental entity; and
(b) consisting solely of waste tires brought to a landfill for disposal and diverted from the landfill waste stream to the waste tire pile.
(14) "Local health department" means the local health department, as defined in Section 26A-1-102, with jurisdiction over the recycler.
(15) "Materials derived from waste tires" means tire sections, tire chips, tire shreddings, rubber, steel, fabric, or other similar materials derived from waste tires.
(16) "Mobile facility" means a mobile facility capable of cutting waste tires on site so the waste tires may be effectively disposed of by burial, such as in a landfill.
(17) "New motor vehicle" means a motor vehicle which has never been titled or registered.
(18) "Passenger tire equivalent" means a measure of mixed sizes of tires where each 25 pounds of whole tires or material derived from waste tires is equal to one waste tire.
(19) "Proceeds of the fee" means the money collected by the commission from payment of the recycling fee including interest and penalties on delinquent payments.
(20) "Recycler" means a person who:
(a) annually uses, or can reasonably be expected within the next year to use, a minimum of 100,000 waste tires generated in the state or 1,000 tons of waste tires generated in the state to recover energy or produce energy, crumb rubber, chipped tires, or an ultimate product; and
(b) is registered as a recycler in accordance with Section 19-6-806.
(21) "Recycling fee" means the fee provided for in Section 19-6-805.
(22) "Shredded waste tires" means waste tires or material derived from waste tires that has been reduced to a six inch square or smaller.
(23) (a) "Storage" means the placement of waste tires in a manner that does not constitute disposal of the waste tires.
(b) "Storage" does not include:
(i) the use of waste tires as ballast to maintain covers on agricultural materials or to maintain covers at a construction site; or
(ii) the storage for five or fewer days of waste tires or material derived from waste tires that are to be recycled or applied to a beneficial use.
(24) (a) "Store" means to place waste tires in a manner that does not constitute disposal of the waste tires.
(b) "Store" does not include:
(i) to use waste tires as ballast to maintain covers on agricultural materials or to maintain covers at a construction site; or
(ii) to store for five or fewer days waste tires or material derived from waste tires that are to be recycled or applied to a beneficial use.
(25) "Tire" means a pneumatic rubber covering designed to encircle the wheel of a vehicle in which a person or property is or may be transported or drawn upon a highway.
(26) "Tire retailer" means any person engaged in the business of selling new tires either as replacement tires or as part of a new vehicle sale.
(27) (a) "Ultimate product" means a product that has as a component materials derived from waste tires and that the executive secretary finds has a demonstrated market.
(b) "Ultimate product" includes pyrolized materials derived from:
(i) waste tires; or
(ii) chipped tires.
(c) "Ultimate product" does not include a product regarding which a waste tire remains after the product is disposed of or disassembled.
(28) "Waste tire" means a tire that is no longer suitable for its original intended purpose because of wear, damage, or defect.
(29) "Waste tire pile" means a pile of 1,000 or more waste tires at one location.
(30) (a) "Waste tire transporter" means a person or entity engaged in picking up or transporting at one time more than ten whole waste tires, or the equivalent amount of material derived from waste tires, generated in Utah for the purpose of storage, processing, or disposal.
(b) "Waste tire transporter" includes any person engaged in the business of collecting, hauling, or transporting waste tires or who performs these functions for another person, except as provided in Subsection (30)(c).
(c) "Waste tire transporter" does not include:
(i) a person transporting waste tires generated solely by:
(A) that person's personal vehicles;
(B) a commercial vehicle fleet owned or operated by that person or that person's employer;
(C) vehicles sold, leased, or purchased by a motor vehicle dealership owned or operated by that person or that person's employer; or
(D) a retail tire business owned or operated by that person or that person's employer;
(ii) a solid waste collector operating under a license issued by a unit of local government as defined in Section [63-51-2] 63M-5-103, or a local health department;
(iii) a recycler of waste tires;
(iv) a person transporting tires by rail as a common carrier subject to federal regulation; or
(v) a person transporting processed or chipped tires.
Section 247. Section 19-6-806 is amended to read:
19-6-806
. Registration of waste tire transporters and recyclers.(1) (a) The executive secretary shall register each applicant for registration to act as a waste tire transporter if the applicant meets the requirements of this section.
(b) An applicant for registration as a waste tire transporter shall:
(i) submit an application in a form prescribed by the executive secretary;
(ii) pay a fee as determined by the board under Section [63-38-3.2] 63J-1-303;
(iii) provide the name and business address of the operator;
(iv) provide proof of liability insurance or other form of financial responsibility in an amount determined by board rule, but not more than $300,000, for any liability the waste tire transporter may incur in transporting waste tires; and
(v) meet requirements established by board rule.
(c) The holder of a registration under this section shall advise the executive secretary in writing of any changes in application information provided to the executive secretary within 20 days of the change.
(d) If the executive secretary has reason to believe a waste tire transporter has disposed of tires other than as allowed under this part, the executive secretary shall conduct an investigation and, after complying with the procedural requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, may revoke the registration.
(2) (a) The executive secretary shall register each applicant for registration to act as a waste tire recycler if the applicant meets the requirements of this section.
(b) An applicant for registration as a waste tire recycler shall:
(i) submit an application in a form prescribed by the executive secretary;
(ii) pay a fee as determined by the board under Section [63-38-3.2] 63J-1-303;
(iii) provide the name and business address of the operator of the recycling business;
(iv) provide proof of liability insurance or other form of financial responsibility in an amount determined by board rule, but not more than $300,000, for any liability the waste tire recycler may incur in storing and recycling waste tires;
(v) engage in activities as described under the definition of recycler in Section 19-6-803; and
(vi) meet requirements established by board rule.
(c) The holder of a registration under this section shall advise the executive secretary in writing of any changes in application information provided to the executive secretary within 20 days of the change.
(d) If the executive secretary has reason to believe a waste tire recycler has falsified any information provided in an application for partial reimbursement under this section, the executive secretary shall, after complying with the procedural requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, revoke the registration.
(3) The board shall establish a uniform fee for registration which shall be imposed by any unit of local government or local health department that requires a registration fee as part of the registration of waste tire transporters or waste tire recyclers.
Section 248. Section 19-6-818 is amended to read:
19-6-818
. Local health department rules.(1) In accordance with Section 26A-1-121, the local health department shall make regulations to:
(a) develop an application form; and
(b) establish the procedure to apply for reimbursement.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules to implement this part.
(3) The local health departments shall take into consideration the removal schedule of tire transporters or recyclers in a geographical area when making regulations governing the storage of waste tires at any business that generates waste tires, pending removal of those waste tires for recycling.
Section 249. Section 19-6-819 is amended to read:
19-6-819
. Powers and duties of the board.(1) The board shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer this part. For these purposes the board shall establish by rule:
(a) conditions and procedures for acting to issue or revoke a registration as a waste tire recycler or transporter under Section 19-6-806;
(b) the amount of liability insurance or other financial responsibility the applicant is required to have to qualify for registration under Section 19-6-806, which amount may not be more than $300,000 for any liability the waste tire transporter or recycler may incur in recycling or transporting waste tires;
(c) the form and amount of financial assurance required for a site or facility used to store waste tires, which amount shall be sufficient to ensure the cleanup or removal of waste tires from that site or facility;
(d) standards and required documentation for tracking and record keeping of waste tires subject to regulation under this part, including:
(i) manifests for handling and transferring waste tires;
(ii) records documenting date, quantities, and size or type of waste tires transported, processed, transferred, or sold;
(iii) records documenting persons between whom transactions under this Subsection (1)(d) occurred and the amounts of waste tires involved in those transactions; and
(iv) requiring that documentation under this Subsection (1)(d) be submitted on a quarterly basis, and that this documentation be made available for public inspection;
(e) authorize inspections and audits of waste tire recycling, transportation, or storage facilities and operations subject to this part;
(f) standards for payments authorized under Sections 19-6-809, 19-6-810, 19-6-811, and 19-6-812;
(g) regarding applications to the executive secretary for reimbursements under Section 19-6-811, the content of the reimbursement application form and the procedure to apply for reimbursement;
(h) requirements for the storage of waste tires, including permits for storage;
(i) the types of energy recovery or other appropriate environmentally compatible uses eligible for reimbursement, which:
(i) shall include pyrolization, but not retreading; and
(ii) shall apply to all waste tire recycling and beneficial use reimbursements within the state;
(j) the applications of waste tires that are not eligible for reimbursement;
(k) the applications of waste tires that are considered to be the storage or disposal of waste tires; and
(l) provisions governing the storage or disposal of waste tires, including the process for issuing permits for waste tire storage sites.
(2) The board may:
(a) require retention and submission of the records required under this part;
(b) require audits of the records and record keeping procedures required under this part and rules made under this part, except that audits of records regarding the fee imposed and collected by the commission under Sections 19-6-805 and 19-6-808 are the responsibility of the commission; and
(c) as necessary, make rules requiring additional information as the board determines necessary to effectively administer Section 19-6-812, which rules may not place an undue burden on the operation of landfills.
Section 250. Section 19-6-821 is amended to read:
19-6-821
. Violations -- Civil proceedings and penalties -- Orders.(1) A person who violates any provision of this part or any order, permit, plan approval, or rule issued or adopted under this part is subject to a civil penalty of not more than $10,000 per day for each day of violation as determined in a civil hearing under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except:
(a) any violation of Subsection 19-6-804(1) or (3), regarding landfills, is subject to the penalty under Subsection 19-6-804(4) rather than the penalties under this section; and
(b) any violation of Subsection 19-6-808(1), (2), or (3) regarding payment of the recycling fee by the tire retailer is subject to penalties as provided in Subsection 19-6-808(4) rather than the penalties under this section.
(2) The board may bring an action in the name of the state to restrain a person from continuing a violation of this part and to require the person to perform necessary remediation regarding a violation of this part.
(3) When the executive secretary finds a situation exists in violation of this part that presents an immediate threat to the public health or welfare, the executive secretary may issue an emergency order under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) The executive secretary may revoke the registration of a waste tire recycler or transporter who violates any provision of this part or any order, plan approval, permit, or rule issued or adopted under this part.
(5) The executive secretary may revoke the tire storage permit for a storage facility that is in violation of any provision of this part or any order, plan approval, permit, or rule issued or adopted under this part.
(6) If a person has been convicted of violating a provision of this part prior to a finding by the executive secretary of a violation of the same provision in an administrative hearing, the executive secretary may not assess a civil monetary penalty under this section for the same offense for which the conviction was obtained.
(7) All penalties collected under this section shall be deposited in the fund.
Section 251. Section 19-6-906 is amended to read:
19-6-906
. Decontamination standards -- Specialist certification standards -- Rulemaking.(1) The Department of Health shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, in consultation with the local health departments and the Department of Environmental Quality, to establish:
(a) decontamination and sampling standards and best management practices for the inspection and decontamination of property and the disposal of contaminated debris under this part;
(b) appropriate methods for the testing of buildings and interior surfaces, and furnishings, soil, and septic tanks for contamination; and
(c) when testing for contamination may be required.
(2) The Department of Environmental Quality Solid and Hazardous Waste Control Board shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, in consultation with the Department of Health and local health departments, to establish within the Department of Environmental Quality Division of Environmental Response and Remediation:
(a) certification standards for any private person, firm, or entity involved in the decontamination of contaminated property; and
(b) a process for revoking the certification of a decontamination specialist who fails to maintain the certification standards.
(3) All rules made under this part shall be consistent with other state and federal requirements.
(4) The board has authority to enforce the provisions under Subsection (2).
Section 252. Section 19-6-1003 is amended to read:
19-6-1003
. Board and executive secretary powers.(1) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules:
(a) governing administrative proceedings under this part;
(b) specifying the terms and conditions under which the executive secretary shall approve, disapprove, revoke, or review a plan submitted by a manufacturer; and
(c) governing reports and educational materials required by this part.
(2) These rules shall include:
(a) time requirements for plan submission, review, approval, and implementation;
(b) a public notice and comment period for a proposed plan; and
(c) safety standards for the collection, packaging, transportation, storage, recycling, and disposal of mercury switches.
(3) The board may request the attorney general to bring an action for injunctive relief and enforcement of this part, including, without limitation, imposition of the penalty provided in Section 19-6-1006.
(4) As authorized by the board, the executive secretary may:
(a) review and approve or disapprove plans, specifications, or other data related to mercury switch removal;
(b) enforce a rule by issuing a notice, an order, or both, which may be subsequently amended or revoked by the board; and
(c) initiate an administrative action to compel compliance with this part and any rules adopted under this part.
(5) The executive secretary shall establish a fee to cover the costs of a plan's review by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
Section 253. Section 19-7-103 is amended to read:
19-7-103
. Definitions.As used in this chapter:
(1) "Administrative proceeding" means an adjudicatory proceeding conducted by the department or other government entity with authority to enforce any environmental law, including any notice of violation proceeding, any department proceeding listed in Section 19-1-305, or any proceeding conducted pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) "Environmental audit report" means any document, information, report, finding, communication, note, drawing, graph, chart, photograph, survey, suggestion, or opinion, whether in preliminary, draft, or final form, prepared as the result of or in response to an environmental self-evaluation.
(3) "Environmental law" means any requirement contained in this title, or in rules made under this title, or in any rules, orders, permits, licenses, or closure plans issued or approved by the department, or in any other provision or ordinance addressing protection of the environment.
(4) "Environmental self-evaluation" means a self-initiated assessment, audit, or review, not otherwise expressly required by an environmental law, that is performed to determine whether a person is in compliance with environmental laws. A person may perform an environmental self-evaluation through the use of employees or the use of outside consultants.
Section 254. Section 19-7-104 is amended to read:
19-7-104
. Unlawful disclosure -- Environmental audit report.(1) Information that is divulged, disseminated, or otherwise disclosed in violation of Utah Rules of Evidence, Rule 508, may not be admitted as evidence in an administrative or judicial proceeding.
(2) If any person, including a department employee or a presiding hearing officer, divulges or disseminates any part of the information contained in an environmental audit report and that report is privileged under Utah Rules of Evidence, Rule 508, the privilege is not waived except as provided under Utah Rules of Evidence, Rule 508(d)(1).
(3) An environmental audit report obtained pursuant to an in camera review is a protected record for purposes of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and a department employee or attorney representing the department may not disclose the report except in accordance with the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 255. Section 19-8-112 is amended to read:
19-8-112
. Denial of certificate of completion -- Appeal.(1) If the executive director determines the applicant has not successfully completed a voluntary cleanup in accordance with an agreement entered into under this chapter, the executive director shall:
(a) notify the applicant and the current owner of the property that is the subject of the agreement of the denial of a certificate of completion; and
(b) provide to the applicant a list in writing of the reasons for the denial.
(2) The applicant may appeal the determination of the executive director as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 256. Section 19-8-117 is amended to read:
19-8-117
. Program report and budget allocations -- Fee schedule.(1) (a) For applications submitted on or after May 5, 1997 through June 30, 1998, the application fee under this chapter is $2,000.
(b) Regarding applications submitted on and after July 1, 1998, the executive director shall annually calculate the costs to administer the voluntary cleanup program under this chapter and shall establish the fees for the program under Section [63-38-3.2] 63J-1-303.
(2) All fees under Subsection (1) shall be deposited in the account created under Section 19-8-103.
Section 257. Section 19-8-120 is amended to read:
19-8-120
. Creation of Brownfields Fund -- Purposes -- Loan and grant eligibility -- Loan restrictions -- Rulemaking.(1) As used in this section, "brownfield" has the same meaning as in 42 U.S.C. Sec. 9601(39).
(2) There is created an enterprise fund known as the Brownfields Fund.
(3) The fund is created to enable the state to use federal funding as available to provide capital for a revolving loan fund and to provide funds for grants to carry out cleanup activities at brownfield sites.
(4) The sources of fund monies are:
(a) federal grant monies;
(b) principal and interest received from the repayment of loans made under this section; and
(c) all investment income derived from fund monies.
(5) The executive director may make loans and grants in accordance with this section from the fund to applicants who meet the criteria under the terms of the federal grant monies in the fund.
(6) The executive director shall consider loan and grant applications under Subsection (5) to determine whether the application meets the objectives established by the federal grant.
(7) Loans made under this section shall:
(a) be for no greater amount than allowed by the federal grant;
(b) have a fixed annual interest rate as allowed by the federal grant;
(c) have a term as allowed by the federal grant;
(d) be made on the condition the loan applicant obtains adequate security for the loan as established by administrative rules made under Subsection (9); and
(e) comply with administrative rules made under Subsection (9).
(8) Grants made under this section shall:
(a) be for no greater amount than allowed by the federal grant; and
(b) comply with administrative rules made under Subsection (9).
(9) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the executive director shall make rules establishing:
(a) form, content, and procedure for loan and grant applications;
(b) criteria and procedures for prioritizing loan and grant applications;
(c) requirements and procedures for securing loans and grants;
(d) procedures for making the loans;
(e) procedures for administering and ensuring repayment of loans, including late payment penalties; and
(f) procedures for recovering on defaulted loans.
(10) The decisions of the executive director in loaning money from the fund, making grants, and otherwise administering the fund are not subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(11) Funding for the cost of administration of the fund shall be consistent with the terms of the federal grant.
(12) The executive director may enter into agreements with public entities or private funding organizations to perform any task associated with administration of the fund.
Section 258. Section 19-9-105 is amended to read:
19-9-105
. Powers of authority.The authority is a body corporate and politic that may:
(1) sue and be sued in its own name;
(2) have a seal and alter the seal at will;
(3) borrow money and issue obligations, including refunding obligations, and provide for the rights of holders of those obligations;
(4) establish hazardous waste treatment, disposal, or storage surcharge schedules for facilities operated by, or under authority of, the authority, and require all private facility operators who contract with the authority to collect fees for all hazardous waste received for treatment, disposal, or storage by those private facilities;
(5) promulgate rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing the exercise of its powers and fulfillment of its purposes;
(6) enter into contracts and leases and execute all instruments necessary, convenient, or desirable;
(7) acquire, purchase, hold, lease, use, or dispose of any property or any interest in property that is necessary, convenient, or desirable to carry out the purposes of this chapter, and sell, lease, transfer, and dispose of any property or interest in property at any time required in the exercise of its power, including, but not limited to, the sale, transfer, or disposal of any materials, substances, or sources or forms of energy derived from any activity engaged in by the authority;
(8) contract with experts, advisers, consultants, and agents for needed services;
(9) appoint officers and employees required for the performance of its duties, and fix and determine their qualifications and duties;
(10) make, or contract for, plans, surveys, and studies necessary, convenient, or desirable to effectuate its purposes and powers and prepare any recommendations with respect to those plans, surveys, or studies;
(11) receive and accept aid or contributions from any source, including the United States or the state, in the form of money, property, labor, or other things of value to be held, used, and applied to carry out the purposes of this chapter, subject to the conditions imposed upon that aid or contributions consistent with this chapter;
(12) enter into agreements with any department, agency, or instrumentality of the United States or this state, or any financial institution, or contractor for the purpose of leasing and operating any facility;
(13) consent to the modification of any obligation with the holder of that obligation, to the extent permitted by the obligation, relating to rates of interest or to the time and payment of any installment of principal or interest, or to the modification of any other contract, mortgage, mortgage loan, mortgage loan commitment, or agreement of any kind to which it is a party;
(14) pledge revenues from any hazardous waste treatment, disposal, and storage facility to secure payment of any obligations relating to that facility, including interest on, and redemption of, those obligations;
(15) execute or cause to be executed, mortgages, trust deeds, indentures, pledge agreements, assignments, security agreements, and financing statements that encumber property acquired, constructed, reconstructed, renovated, or repaired with the proceeds from the sale of such obligations;
(16) exercise the power of eminent domain;
(17) do all other things necessary to comply with the requirements of 42 U.S.C. Sections 6901-6986, the Resource Conservation and Recovery Act of 1976, and this part;
(18) contract for the construction, operation, and maintenance of hazardous waste treatment, storage, and disposal facilities, including plants, works, instrumentalities, or parts thereof, for the collection, conveyance, treatment, exchange, storage, and disposal of hazardous waste, subject to approval by the board; and
(19) exercise any other powers or duties necessary or appropriate to carry out and effectuate this chapter.
Section 259. Section 19-10-108 is amended to read:
19-10-108
. Appeals of institutional control decisions.Any determination by the executive director under this chapter may be appealed as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 260. Section 19-11-101, which is renumbered from Section 63-41-1 is renumbered and amended to read:
CHAPTER 11. WESTERN INTERSTATE NUCLEAR COMPACT
Part 1. General Provisions
[63-41-1]. 19-11-101. Title.
This [act shall be known and may be cited] chapter is known as the "Western Interstate Nuclear Compact."
Section 261. Section 19-11-102, which is renumbered from Section 63-41-2 is renumbered and amended to read:
[63-41-2
]. 19-11-102. Definitions.As used in this act:
(1) The words "the compact" or "this compact" mean the Western Interstate Nuclear Compact.
(2) The words "the board" mean the Western Interstate Nuclear Board.
Section 262. Section 19-11-201, which is renumbered from Section 63-41-3 is renumbered and amended to read:
Part 2. Compact
[63-41-3]. 19-11-201. Text of compact.
The Western Interstate Nuclear Compact is hereby enacted into law in the state of Utah and entered into with all other states legally joining therein, in the form substantially as follows:
ARTICLE I. POLICY AND PURPOSE
The party states recognize that the proper employment of scientific and technological discoveries and advances in nuclear and related fields and direct and collateral application and adaptation of processes and techniques developed in connection therewith, properly correlated with the other resources of the region, can assist substantially in the industrial progress of the West and the further development of the economy of the region. They also recognize that optimum benefit from nuclear and related scientific or technological resources, facilities and skills requires systematic encouragement, guidance, assistance, and promotion from the party states on a co-operative basis. It is the policy of the party states to undertake such co-operation on a continuing basis. It is the purpose of this compact to provide the instruments and framework for such a co-operative effort in nuclear and related fields, to enhance the economy of the West and contribute to the individual and community well-being and the region's people.
ARTICLE II. THE BOARD
(a) There is hereby created an agency of the party states to be known as the Western Interstate Nuclear Board. The board shall be composed of one member from each party state designated or appointed in accordance with the law of the state which he represents and serving and subject to removal in accordance with such law. Any member of the board may provide for the discharge of his duties and the performance of his functions thereon (either for the duration of his membership or for any lesser period of time) by a deputy or assistant, if the laws of his state make specific provisions therefor. The federal government may be represented without vote if provision is made by federal law for such representation.
(b) The board members of the party states shall each be entitled to one vote on the board. No action of the board shall be binding unless taken at a meeting at which a majority of all members representing the party states are present and unless a majority of the total number of votes on the board are cast in favor thereof.
(c) The board shall have a seal.
(d) The board shall elect annually, from among its members, a chairman, a vice-chairman, and treasurer. The board shall appoint and fix the compensation of an executive director who shall serve at its pleasure and who shall also act as secretary, and who, together with the treasurer, and such other personnel as the board may direct, shall be bonded in such amounts as the board may require.
(e) The executive director, with the approval of the board, shall appoint and remove or discharge such personnel as may be necessary for the performance of the board's functions irrespective of the civil service, personnel or other merit system laws of any of the party states.
(f) The board may establish and maintain, independently or in conjunction with any one or more of the party states, or its institutions or subdivisions, a suitable retirement system for its full-time employees. Employees of the board shall be eligible for social security coverage in respect of old age and survivors insurance provided that the board takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The board may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.
(g) The board may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.
(h) The board may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm, or corporation, and may receive, utilize, and dispose of the same. The nature, amount and conditions, if any, attendant upon any donation or grant accepted pursuant to this paragraph or upon any borrowing pursuant to paragraph (g) of this Article, together with the identity of the donor, grantor or lender, shall be detailed in the annual report of the board.
(i) The board may establish and maintain such facilities as may be necessary for the transacting of its business. The board may acquire, hold, and convey real and personal property and any interest therein.
(j) The board shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules, and regulations. The board shall publish its bylaws, rules, and regulations in convenient form and shall file a copy thereof, and shall also file a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.
(k) The board annually shall make to the governor of each party state, a report covering the activities of the board for the preceding year, and embodying such recommendations as may have been adopted by the board, which report shall be transmitted to the legislature of said state. The board may issue such additional reports as it may deem desirable.
ARTICLE III. FINANCES
(a) The board shall submit to the governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof.
(b) Each of the board's budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. Each of the board's requests for appropriations pursuant to a budget of estimated expenditures shall be apportioned equally among the party states. Subject to appropriation by their respective legislatures, the board shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the board.
(c) The board may meet any of its obligations in whole or in part with funds available to it under Article II(h) of this compact, provided that the board takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the board makes use of funds available to it under Article II(h) hereof, the board shall not incur any obligation prior to the allotment of funds by the party jurisdictions adequate to meet the same.
(d) Any expenses and any other costs for each member of the board in attending board meetings shall be met by the board.
(e) The board shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the board shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the board shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become a part of the annual report of the board.
(f) The accounts of the board shall be open at any reasonable time for inspection to persons authorized by the board, and duly designated representatives of governments contributing to the board's support.
ARTICLE IV. ADVISORY COMMITTEES
The board may establish such advisory and technical committees as it may deem necessary, membership on which may include but not be limited to private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, medicine, education, voluntary health agencies, and officials of local, state and federal government, and may co-operate with and use the services of any such committees and the organizations which they represent in furthering any of its activities under this compact.
ARTICLE V. POWERS
The board shall have power to:
(a) Encourage and promote co-operation among the party states in the development and utilization of nuclear and related technologies and their application to industry and other fields.
(b) Ascertain and analyze on a continuing basis the position of the West with respect to the employment in industry of nuclear and related scientific findings and technologies.
(c) Encourage the development and use of scientific advances and discoveries in nuclear facilities, energy, materials, products, by-products, and all other appropriate adaptations of scientific and technological advances and discoveries.
(d) Collect, correlate, and disseminate information relating to the peaceful uses of nuclear energy, materials, and products, and other products and processes resulting from the application of related science and technology.
(e) Encourage the development and use of nuclear energy, facilities, installations, and products as part of a balanced economy.
(f) Conduct, or co-operate in conducting, programs of training for state and local personnel engaged in any aspects of:
1. Nuclear industry, medicine, or education, or the promotion or regulation thereof.
2. Applying nuclear scientific advances or discoveries, and any industrial, commercial or other processes resulting therefrom.
3. The formulation or administration of measures designed to promote safety in any matter related to the development, use or disposal of nuclear energy, materials, products, by-products, installations, or wastes, or to safety in the production, use and disposal of any other substances peculiarly related thereto.
(g) Organize and conduct, or assist and co-operate in organizing and conducting, demonstrations or research in any of the scientific, technological or industrial fields to which this compact relates.
(h) Undertake such nonregulatory functions with respect to non-nuclear sources of radiation as may promote the economic development and general welfare of the West.
(i) Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to nuclear fields.
(j) Recommend such changes in, or amendments or additions to the laws, codes, rules, regulations, administrative procedures and practices or local laws or ordinances of the party states or their subdivisions in nuclear and related fields, as in its judgment may be appropriate. Any such recommendations shall be made through the appropriate state agency, with due consideration of the desirability of uniformity but shall also give appropriate weight to any special circumstances which may justify variations to meet local conditions.
(k) Consider and make recommendations designed to facilitate the transportation of nuclear equipment, materials, products, by-products, wastes, and any other nuclear or related substances, in such manner and under such conditions as will make their availability or disposal practicable on an economic and efficient basis.
(l) Consider and make recommendations with respect to the assumption of and protection against liability actually or potentially incurred in any phase of operations in nuclear and related fields.
(m) Advise and consult with the federal government concerning the common position of the party states or assist party states with regard to individual problems where appropriate in respect to nuclear and related fields.
(n) Cooperate with the Atomic Energy Commission, the National Aeronautics and Space Administration, the Office of Science and Technology, or any agencies successor thereto, and other officer or agency of the United States, and any other governmental unit or agency or officer thereof, and with any private persons or agencies in any of the fields of its interest.
(o) Act as licensee, contractor or subcontractor of the United States Government or any party state with respect to the conduct of any research activity requiring such license or contract and operate such research facility or undertake any program pursuant thereto, provided that this power shall be exercised only in connection with the implementation of one or more other powers conferred upon the board by this compact.
(p) Prepare, publish and distribute (with or without charge) such reports, bulletins, newsletters or other materials as it deems appropriate.
(q) Ascertain from time to time such methods, practices, circumstances, and conditions as may bring about the prevention and control of nuclear incidents in the area comprising the party states, to co-ordinate the nuclear incident prevention and control plans and the work relating thereto of the appropriate agencies of the party states and to facilitate the rendering of aid by the party states to each other in coping with nuclear incidents.
The board may formulate and, in accordance with need from time to time, revise a regional plan or regional plans for coping with nuclear incidents within the territory of the party states as a whole or within any subregion or subregions of the geographic area covered by this compact.
Any nuclear incident plan in force pursuant to this paragraph shall designate the official or agency in each party state covered by the plan who shall co-ordinate requests for aid pursuant to Article VI of this compact and the furnishing of aid in response thereto.
Unless the party states concerned expressly otherwise agree, the board shall not administer the summoning and dispatching of aid, but this function shall be undertaken directly by the designated agencies and officers of the party states.
However, the plan or plans of the board in force pursuant to this paragraph shall provide for reports to the board concerning the occurrence of nuclear incidents and the requests for aid on account thereof, together with summaries of the actual working and effectiveness of mutual aid in particular instances.
From time to time, the board shall analyze the information gathered from reports of aid pursuant to Article VI and such other instances of mutual aid as may have come to its attention, so that experience in the rendering of such aid may be available.
(r) Prepare, maintain, and implement a regional plan or regional plans for carrying out the duties, powers, or functions conferred upon the board by this compact.
(s) Undertake responsibilities imposed or necessarily involved with regional participation pursuant to such co-operative programs of the federal government as are useful in connection with the fields covered by this compact.
ARTICLE VI. MUTUAL AID
(a) Whenever a party state, or any state or local governmental authorities therein, request aid from any other party state pursuant to this compact in coping with a nuclear incident, it shall be the duty of the requested state to render all possible aid to the requesting state which is consonant with the maintenance of protection of its own people.
(b) Whenever the officers or employees of any party state are rendering outside aid pursuant to the request of another party state under this compact, the officers or employees of such state shall, under the direction of the authorities of the state to which they are rendering aid, have the same powers, duties, rights, privileges and immunities as comparable officers and employees of the state to which they are rendering aid.
(c) No party state or its officers or employees rendering outside aid pursuant to this compact shall be liable on account of any act or omission on their part while so engaged, or on account of the maintenance or use of any equipment or supplies in connection therewith.
(d) All liability that may arise either under the laws of the requesting state or under the laws of the aiding state or under the laws of a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.
(e) Any party state rendering outside aid pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of all materials, transportation, wages, salaries and maintenance of officers, employees and equipment incurred in connection with such requests: provided that nothing herein contained shall prevent any assisting party state from assuming such loss, damage, expense or other cost or from loaning such equipment or from donating such services to the receiving party state without charge or cost.
(f) Each party state shall provide for the payment of compensation and death benefits to injured officers and employees and the representatives of deceased officers and employees in case officers or employees sustain injuries or death while rendering outside aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within the state by or in which the officer or employee was regularly employed.
ARTICLE VII. SUPPLEMENTARY AGREEMENTS
(a) To the extent that the board has not undertaken an activity or project which would be within its power under the provisions of Article V of this compact, any two or more of the party states (acting by their duly constituted administrative officials) may enter into supplementary agreements for the undertaking and continuance of such an activity or project. Any such agreement shall specify the purpose or purposes; its duration and the procedure for termination thereof or withdrawal therefrom; the method of financing and allocating the costs of the activity or project; and such other matters as may be necessary or appropriate.
No such supplementary agreement entered into pursuant to this article shall become effective prior to its submission to and approval by the board. The board shall give such approval unless it finds that the supplementary agreement or activity or project contemplated thereby is inconsistent with the provisions of this compact or a program or activity conducted by or participated in by the board.
(b) Unless all of the party states participate in a supplementary agreement, any cost or costs thereof shall be borne separately by the states party thereto. However, the board may administer or otherwise assist in the operation of any supplementary agreement.
(c) No party to a supplementary agreement entered into pursuant to this article shall be relieved thereby of any obligation or duty assumed by said party state under or pursuant to this compact, except that timely and proper performance of such obligation or duty by means of the supplementary agreement may be offered as performance pursuant to the compact.
(d) The provisions to this Article shall apply to supplementary agreements and activities thereunder, but shall not be construed to repeal or impair any authority which officers or agencies of party states may have pursuant to other laws to undertake cooperative arrangements or projects.
ARTICLE VIII. OTHER LAWS AND RELATIONS
Nothing in this compact shall be construed to:
(a) Permit or require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force.
(b) Limit, diminish, or otherwise impair jurisdiction exercised by the Atomic Energy Commission, any agency successor thereto, or any other federal department, agency or officer pursuant to and in conformity with any valid and operative act of Congress; nor limit, diminish, affect, or otherwise impair, jurisdiction exercised by any officer or agency of a party state, except to the extent that the provisions of this compact may provide therefor.
(c) Alter the relations between and respective internal responsibilities of the government of a party state and its subdivisions.
(d) Permit or authorize the board to own or operate any facility, reactor, or installation for industrial or commercial purposes.
ARTICLE IX. ELIGIBLE PARTIES,
ENTRY INTO FORCE AND WITHDRAWAL
(a) Any or all of the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming shall be eligible to become party to this compact.
(b) As to any eligible party state, this compact shall become effective when its legislature shall have enacted the same into law: provided, that it shall not become initially effective until enacted into law by five states.
(c) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until two years after the governor of the withdrawing state has given notice in writing of the withdrawal to the governors of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.
(d) Guam and American Samoa, or either of them may participate in the compact to such extent as may be mutually agreed by the board and the duly constituted authorities of Guam or American Samoa, as the case may be. However, such participation shall not include the furnishing or receipt of mutual aid pursuant to Article VI, unless that Article has been enacted or otherwise adopted so as to have the full force and effect of law in the jurisdiction affected. Neither Guam nor American Samoa shall be entitled to voting participation on the board, unless it has become a full party to the compact.
ARTICLE X. SEVERABILITY AND CONSTRUCTION
The provisions of this compact and of any supplementary agreement entered into hereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such supplementary agreement is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact or such supplementary agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact or any supplementary agreement entered into hereunder shall be held contrary to the constitution of any state participating therein, the compact or such supplementary agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. The provisions of this compact and of any supplementary agreement entered into pursuant thereto shall be liberally construed to effectuate the purposes thereof.
Section 263. Section 19-11-301, which is renumbered from Section 63-41-4 is renumbered and amended to read:
Part 3. Utah Board Members
[63-41-4]. 19-11-301. Utah member of board -- Designation.
The member of the board representing the state of Utah shall be designated by the governor of the state of Utah.
Section 264. Section 19-11-302, which is renumbered from Section 63-41-5 is renumbered and amended to read:
[63-41-5
]. 19-11-302. Alternate member.The alternate required pursuant to Article II(a) of the compact shall be designated by the board member representing this state and shall serve at his pleasure.
Section 265. Section 19-11-401, which is renumbered from Section 63-41-6 is renumbered and amended to read:
Part 4. Board Bylaws
[63-41-6]. 19-11-401. Bylaws of board to be filed.
Pursuant to Article II(j) of the compact, the board shall file copies of its bylaws and any amendments thereto with the Division of Archives.
Section 266. Section 20A-1-204 is amended to read:
20A-1-204
. Date of special election -- Legal effect.(1) (a) The governor, Legislature, or the legislative body of a local political subdivision calling a statewide special election or local special election under Section 20A-1-203 shall schedule the special election to be held on:
(i) the fourth Tuesday in June; or
(ii) the first Tuesday after the first Monday in November.
(b) Except as provided in Subsection (1)(c), the governor, Legislature, or the legislative body of a local political subdivision calling a statewide special election or local special election under Section 20A-1-203 may not schedule a special election to be held on any other date.
(c) (i) Notwithstanding the requirements of Subsection (1)(b), the legislative body of a local political subdivision may call a local special election on a date other than those specified in this section if the legislative body:
(A) determines and declares that there is a disaster, as defined in Section [63-5-2] 63K-3-102, requiring that a special election be held on a date other than the ones authorized in statute;
(B) identifies specifically the nature of the disaster, as defined in Section [63-5-2] 63K-3-102, and the reasons for holding the special election on that other date; and
(C) votes unanimously to hold the special election on that other date.
(ii) The legislative body of a local political subdivision may not call a local special election for the date established in Title 20A, Chapter 9, Part 8, Western States Presidential Primary, for Utah's Western States Presidential Primary.
(d) Nothing in this section prohibits:
(i) the governor or Legislature from submitting a matter to the voters at the regular general election if authorized by law; or
(ii) a local government from submitting a matter to the voters at the regular municipal election if authorized by law.
(2) (a) Two or more entities shall comply with Subsection (2)(b) if those entities hold a special election within a county on the same day as:
(i) another special election;
(ii) a regular general election; or
(iii) a municipal general election.
(b) Entities described in Subsection (2)(a) shall, to the extent practicable, coordinate:
(i) polling places;
(ii) ballots;
(iii) election officials; and
(iv) other administrative and procedural matters connected with the election.
Section 267. Section 20A-2-104 is amended to read:
20A-2-104
. Voter registration form -- Registered voter lists -- Fees for copies.(1) Every person applying to be registered shall complete a registration form printed in substantially the following form:
-----------------------------------------------------------------------------------------------------------------
UTAH ELECTION REGISTRATION FORM
Are you a citizen of the United States of America? Yes No
Will you be 18 years old on or before election day? Yes No
If you checked "no" to either of the above two questions, do not complete this form.
Name of Voter _________________________________________________________________
First Middle Last
Driver License or Identification Card Number____________________________
State of issuance of Driver License or Identification Card
Date of Birth ______________________________________________________
Street Address of Principal Place of Residence
____________________________________________________________________________
City County State Zip Code
Telephone Number (optional) _________________________
Last four digits of Social Security Number ______________________
Last former address at which I was registered to vote (if known)__________________________
____________________________________________________________________________
City County State Zip Code
Political Party
(a listing of each registered political party, as defined in Section 20A-8-101 and maintained by the lieutenant governor under Section 67-1a-2, with each party's name preceded by a checkbox)
☐Unaffiliated (no political party preference) ☐Other (Please specify)___________________
I do swear (or affirm), subject to penalty of law for false statements, that the information contained in this form is true, and that I am a citizen of the United States and a resident of the state of Utah, residing at the above address. I will be at least 18 years old and will have resided in Utah for 30 days immediately before the next election. I am not a convicted felon currently incarcerated for commission of a felony.
Signed and sworn
__________________________________________________________
Voter's Signature
_______________(month/day/year).
CITIZENSHIP AFFIDAVIT
Name:
Name at birth, if different:
Place of birth:
Date of birth:
Date and place of naturalization (if applicable):
I hereby swear and affirm, under penalties for voting fraud set forth below, that I am a citizen and that to the best of my knowledge and belief the information above is true and correct.
____________________________
Signature of Applicant
In accordance with Section 20A-2-401, the penalty for willfully causing, procuring, or allowing yourself to be registered to vote if you know you are not entitled to register to vote is up to one year in jail and a fine of up to $2,500.
NOTICE: IN ORDER TO BE ALLOWED TO VOTE IN A VOTING PRECINCT FOR THE FIRST TIME OR TO VOTE DURING THE EARLY VOTING PERIOD BEFORE THE DATE OF THE ELECTION, YOU MUST PRESENT VALID VOTER IDENTIFICATION TO THE POLL WORKER BEFORE VOTING AS FOLLOWS:
(1) A VALID FORM OF PHOTO IDENTIFICATION THAT SHOWS YOUR NAME, PHOTOGRAPH, AND CURRENT ADDRESS; OR
(2) TWO DIFFERENT FORMS OF IDENTIFICATION THAT SHOW YOUR NAME AND CURRENT ADDRESS.
FOR OFFICIAL USE ONLY
Type of I.D. ____________________________
Voting Precinct _________________________
Voting I.D. Number _____________________
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(2) The county clerk shall retain a copy in a permanent countywide alphabetical file, which may be electronic or some other recognized system.
(3) (a) Each county clerk shall retain lists of currently registered voters.
(b) The lieutenant governor shall maintain a list of registered voters in electronic form.
(c) If there are any discrepancies between the two lists, the county clerk's list is the official list.
(d) The lieutenant governor and the county clerks may charge the fees established under the authority of Subsection [63-2-203] 63G-2-203(10) to individuals who wish to obtain a copy of the list of registered voters.
(4) When political parties not listed on the voter registration form qualify as registered political parties under Title 20A, Chapter 8, Political Party Formation and Procedures, the lieutenant governor shall inform the county clerks about the name of the new political party and direct the county clerks to ensure that the voter registration form is modified to include that political party.
(5) Upon receipt of a voter registration form from an applicant, the county clerk or the clerk's designee shall:
(a) review each voter registration form for completeness and accuracy; and
(b) if the county clerk believes, based upon a review of the form, that a person may be seeking to register to vote who is not legally entitled to register to vote, refer the form to the county attorney for investigation and possible prosecution.
Section 268. Section 20A-3-304.1 is amended to read:
20A-3-304.1
. Election officer to provide voting history information and status.(1) As used in this section:
(a) "Qualified absentee ballot application" means an absentee ballot application filed under Section 20A-3-304 from a voter who the election officer determines is eligible to receive an absentee ballot.
(b) "Voting history record" means the information about the existence and status of absentee ballot requests required by this section.
(2) (a) Each election officer shall maintain, in the election officer's office, a voting history record of those voters that have cast a vote by:
(i) absentee ballot; and
(ii) early voting.
(b) The voting history record is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(3) The election officer shall ensure that the voting history record for each voting precinct contains:
(a) for absentee voting:
(i) the name and address of each person who has filed a qualified absentee ballot application;
(ii) the date that the application was received; and
(iii) the current status of each qualified absentee ballot application including specifically:
(A) the date that the absentee ballot was mailed to the voter; and
(B) the date that the voted absentee ballot was received by the election officer; and
(b) for early voting:
(i) the name and address of each person who has voted during the early voting period; and
(ii) the date the person's vote was cast.
(4) (a) Notwithstanding the time limits for response to a request for records under Section [63-2-204] 63G-2-204 or the time limits for a request for records established in any ordinance, the election officer shall ensure that the information required by this section is recorded and made available to the public no later than one business day after its receipt in the election officer's office.
(b) Notwithstanding the fee requirements of Section [63-2-203] 63G-2-203 or the fee requirements established in any ordinance, the election officer shall make copies of the voting history record available to the public for the actual cost of production or copying.
Section 269. Section 20A-3-408.5 is amended to read:
20A-3-408.5
. Electronic registration and voting by military and overseas citizen voters in a hostile fire zone -- Procedures for accepting and processing a federal postcard application form -- Returned ballot.(1) A military voter, an overseas citizen voter, or other voter covered under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) shall be allowed to transmit their federal postcard application form electronically to the county clerk in their county of residence if the voter is currently deployed in:
(a) a hostile fire zone; or
(b) other area where the mail service is unreliable and not sufficient to accommodate timely mail service.
(2) A voter covered under Subsection (1), shall file the federal postcard application form no later than 20 days before the day of the election in accordance with Subsection 20A-3-304(3)(a)(ii).
(3) Upon receiving a federal postcard application form under this section a county clerk shall review the federal postcard application form to verify:
(a) compliance with this section; and
(b) that the form has been properly completed and signed.
(4) Upon a determination of compliance under Subsection (3), a county clerk shall:
(a) register the voter, unless the voter is already registered;
(b) process the absentee ballot request; and
(c) electronically transmit a ballot to the voter who filed the federal postcard application form.
(5) A voter who receives a ballot under this section may transmit the ballot electronically to the county clerk in their county of residence if the voter:
(a) agrees to waive the right to a secret ballot in accordance with this section; and
(b) affirms in writing that the voter is currently deployed in:
(i) a hostile fire zone; or
(ii) other area where the mail service is unreliable and not sufficient to accommodate timely mail service.
(6) The electronically transmitted ballot shall be accompanied by the following statements: "I understand that by electronically transmitting my voted ballot I am voluntarily waiving my right to a secret ballot. Signature of voter ________________ Date _______"; and
"I affirm that I am currently deployed in a hostile fire zone" or
"I affirm that I am currently deployed in an area where mail service is unreliable and not sufficient to accommodate timely mail service."
(7) Notwithstanding the provisions of Subsections (5) and (6), the completed ballot transmitted under this section is considered a private record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(8) A ballot transmitted under Subsection (5) shall be:
(a) transmitted no later than the date that is one day before the election day in accordance with Section 20A-3-406; and
(b) received by the county clerk before the date of the official canvass in accordance with Subsection 20A-3-306(2)(b).
(9) Upon the receipt of an electronically transmitted ballot under this section, a county clerk shall:
(a) verify the voter's signature from the federal postcard application form and ensure that it matches the voter's signature on the return ballot;
(b) duplicate the electronically transmitted ballot onto a regular ballot used by the county for resident voters; and
(c) maintain the electronically transmitted ballot for 22 months in accordance with Subsection 20A-4-202(2).
Section 270. Section 20A-9-206 is amended to read:
20A-9-206
. Fair campaign practices -- Voluntary pledge -- Pledge is a public record -- Retention requirements.(1) Each person seeking to become a candidate for any elective office that is to be filled at the next election shall be provided with a copy of the pledge of fair campaign practices.
(2) The pledge shall be in the following form:
"PLEDGE OF FAIR CAMPAIGN PRACTICES
There are basic principles of decency, honesty, and fair play which every candidate for public office in the State of Utah has a moral obligation to observe and uphold, in order that, after vigorously contested but fairly conducted campaigns, our citizens may exercise their right to a free election, and that the will of the people may be fully and clearly expressed on the issues.
THEREFORE:
I SHALL conduct my campaign openly and publicly, discussing the issues as I see them, presenting my record and policies with sincerity and frankness, and criticizing, without fear or favor, the record and policies of my opponents that I believe merit criticism.
I SHALL NOT use nor shall I permit the use of scurrilous attacks on any candidate or the candidate's immediate family. I shall not participate in or nor shall I permit the use of defamation, libel, or slander against any candidate or the candidate's immediate family. I shall not participate in nor shall I permit the use of any other criticism of any candidate or the candidate's immediate family that I do not believe to be truthful, provable, and relevant to my campaign.
I SHALL NOT use nor shall I permit the use of any practice that tends to corrupt or undermine our American system of free elections, or that hinders or prevents the free expression of the will of the voters, including practices intended to hinder or prevent any eligible person from registering to vote or voting.
I SHALL NOT coerce election help or campaign contributions for myself or for any other candidate from my employees or volunteers.
I SHALL immediately and publicly repudiate support deriving from any individual or group which resorts, on behalf of my candidacy or in opposition to that of an opponent, to methods in violation of the letter or spirit of this pledge. I shall accept responsibility to take firm action against any subordinate who violates any provision of this pledge or the laws governing elections.
I SHALL defend and uphold the right of every qualified American voter to full and equal participation in the electoral process.
I, the undersigned, candidate for election to public office in the State of Utah, hereby voluntarily endorse, subscribe to, and solemnly pledge myself to conduct my campaign in accordance with the above principles and practices."
Name: ________________________________
Signature: _____________________________ Date: _________
(3) The filing officer shall print, or cause to be printed, blank forms of the pledge to be distributed to persons filing a declaration of candidacy.
(4) A pledge that is submitted for filing by a candidate is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(5) The filing officer shall:
(a) accept all signed pledges that are submitted for filing; and
(b) retain each filed pledge for public inspection for 30 calendar days after the election.
(6) A candidate may not be required to subscribe to, endorse, or sign the pledge of fair campaign practices.
Section 271. Section 20A-12-104 is amended to read:
20A-12-104
. Procedures governing meetings of judicial nominating commissions.(1) The Judicial Council shall:
(a) enact rules establishing procedures governing the meetings of the judicial nominating commissions; and
(b) ensure that those procedures include:
(i) a minimum recruitment period of 30 days and a procedure to extend that period for an additional 30 days if fewer than nine applications are received for a judicial vacancy;
(ii) standards for maintaining the confidentiality of the applications and related documents;
(iii) standards governing the release of applicant names before nomination;
(iv) standards for destroying the records of the names of applicants, applications, and related documents upon completion of the nominating process;
(v) an opportunity for public comment concerning the nominating process, qualifications for judicial office, and individual applicants;
(vi) evaluation criteria for the selection of judicial nominees;
(vii) procedures for taking summary minutes at nominating commission meetings;
(viii) procedures for simultaneously forwarding the names of nominees to the governor, the president of the Senate, and the Office of Legislative Research and General Counsel; and
(ix) standards governing a nominating commissioner's disqualification and inability to serve.
(2) (a) (i) Except as provided in this Subsection (2)(a)(ii), if a judicial nominating commission receives 15 or more applications to fill a judicial vacancy, the nominating commission shall submit at least five names to the governor.
(ii) Notwithstanding Subsection (2)(a)(i), if five applicants do not receive the required number of votes as specified in Subsection (2)(c) from the nominating commission, the commission shall submit only the names of applicants that received the required number of votes, but must submit the names of at least three applicants.
(b) In determining whether or not to submit an applicant's name to the governor, a commission may not decline to consider an applicant merely because:
(i) the nominating commission had declined to submit that candidate's name to the governor to fill a previous vacancy;
(ii) a previous nominating commission had declined to submit that candidate's name to the governor; or
(iii) that nominating commission or a previous nominating commission had submitted the applicant's name to the governor and the governor selected someone else to fill the vacancy.
(c) The vote required to submit an applicant's name to the governor is as follows:
(i) if all seven members of the nominating commission are present and considering applicants, a vote in favor of the applicant by four commissioners submits the candidate's name to the governor;
(ii) if only six members of the nominating commission are present and considering applicants because one member is unable to attend, has recused himself or is otherwise disqualified, a vote in favor of the applicant by four commissioners submits the candidate's name to the governor;
(iii) if only five members of the nominating commission are present and considering applicants because two members are unable to attend, have recused themselves, or are otherwise disqualified, a vote in favor of the applicant by three commissioners submits the candidate's name to the governor; and
(iv) if only four members of the nominating commission are present and considering applicants because three members are unable to attend, have recused themselves, or are otherwise disqualified, a vote in favor of the applicant by three commissioners submits the candidate's name to the governor.
(3) A judicial nominating commission may not nominate a justice or judge who was not retained by the voters for the office for which the justice or judge was defeated until after the expiration of that term of office.
(4) Judicial nominating commissions are exempt from the requirements of Title 52, Chapter 4, Open and Public Meetings Act, and [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 272. Section 23-14-2.1 is amended to read:
23-14-2.1
. Procedures -- Adjudicative proceedings.The Division of Wildlife Resources shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 273. Section 23-14-18 is amended to read:
23-14-18
. Establishment of seasons, locations, limits, and regulations by Wildlife Board.(1) To provide an adequate and flexible system of protection, propagation, introduction, increase, control, harvest, management, and conservation of protected wildlife in this state and to provide for the use and development of protected wildlife for public recreation and food supply while maintaining a sustainable population of protected wildlife, the Wildlife Board shall determine the circumstances, time, location, means, and the amounts, and numbers of protected wildlife which may be taken.
(2) The Wildlife Board shall, except as otherwise specified in this code:
(a) fix seasons and shorten, extend, or close seasons on any species of protected wildlife in any locality, or in the entire state, if the board finds that the action is necessary to effectuate proper wildlife management and control;
(b) close or open areas to fishing, trapping, or hunting;
(c) establish refuges and preserves;
(d) regulate and prescribe the means by which protected wildlife may be taken;
(e) regulate the transportation and storage of protected wildlife, or their parts, within the boundaries of the state and the shipment or transportation out of the state;
(f) establish or change bag limits and possession limits;
(g) prescribe safety measures and establish other regulations as may be considered necessary in the interest of wildlife conservation and the safety and welfare of hunters, trappers, fishermen, landowners, and the public;
(h) (i) prescribe when licenses, permits, tags, and certificates of registration shall be required and procedures for their issuance and use; and
(ii) establish forms and fees for licenses, permits, tags, and certificates of registration; and
(i) prescribe rules and regulations as it may consider necessary to control the use and harvest of protected wildlife by private associations, clubs, partnerships, or corporations, provided the rules and regulations do not preclude the landowner from personally controlling trespass upon the owner's properties nor from charging a fee to trespass for purposes of hunting or fishing.
(3) The Wildlife Board may allow a season on protected wildlife to commence on any day of the week except Sunday.
(4) The Wildlife Board shall establish fees for licenses, permits, tags, and certificates of registration in accordance with Section [63-38-3.2] 63J-1-303.
Section 274. Section 23-14-21 is amended to read:
23-14-21
. Transplants of big game, turkeys, wolves, or sensitive species.(1) The division may transplant big game, turkeys, wolves, or sensitive species only in accordance with:
(a) a list of sites for the transplant of a particular species that is prepared and adopted in accordance with Subsections (2) through (5);
(b) a species management plan, such as a deer or elk management plan adopted under Section 23-16-7 or a recovery plan for a threatened or endangered species, provided that:
(i) the plan identifies sites for the transplant of the species or the lands or waters the species are expected to occupy; and
(ii) the public has had an opportunity to comment and make recommendations on the plan; or
(c) a legal agreement between the state and a tribal government that identifies potential transplants; and
(d) the Endangered Species Act of 1973, 16 U.S.C. Sec. 1531 et seq.
(2) The division shall:
(a) consult with the landowner in determining the suitability of a site for the transplant of a species;
(b) prepare a list of proposed sites for the transplant of species;
(c) provide notification of proposed sites for the transplant of species to:
(i) local government officials having jurisdiction over areas that may be affected by a transplant; and
(ii) the Resource Development Coordinating Committee created in Section [63-38d-501] 63J-4-501.
(3) After receiving comments from local government officials and the Resource Development Coordinating Committee, the division shall submit the list of proposed transplant sites, or a revised list, to regional advisory councils for regions that may be affected by the transplants of species.
(4) Each regional advisory council reviewing a list of proposed sites for the transplant of species may submit recommendations to the Wildlife Board.
(5) The Wildlife Board shall approve, modify, or reject each proposal for the transplant of a species.
(6) Each list of proposed transplant sites approved by the Wildlife Board shall have a termination date after which a transplant may not occur.
Section 275. Section 23-16-3.2 is amended to read:
23-16-3.2
. Mitigation review panel.(1) A mitigation review panel may be convened to review the depredation mitigation plans.
(2) Membership of the mitigation review panel shall consist of:
(a) the division director or the director's designee;
(b) (i) the commissioner of the Department of Agriculture and Food or the commissioner's designee; or
(ii) a representative of agricultural interests appointed by the commissioner of the Department of Agriculture and Food; and
(c) a representative of Utah State University Extension Service appointed by the Vice President and Dean for University Extension.
(3) (a) The division director shall convene a mitigation review panel if:
(i) a landowner or lessee appeals a depredation mitigation plan under Subsection 23-16-3.1(2)(b)(ii); or
(ii) the division director requests review of a depredation mitigation plan.
(b) Within five business days of an appeal under Subsection 23-16-3.1(2)(b)(ii) or a division request for review under Subsection 23-16-3.1(3)(b), the mitigation review panel shall review the depredation mitigation plan and approve or modify the plan.
(4) Judicial review of a mitigation review panel action shall be governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 276. Section 23-16-4 is amended to read:
23-16-4
. Compensation for damage to crops, fences, or irrigation equipment -- Limitations -- Appeals.(1) The division may provide compensation to claimants for damage caused by big game to:
(a) cultivated crops from or on cleared and planted land;
(b) fences on private land; or
(c) irrigation equipment on private land.
(2) To be eligible to receive compensation as provided in this section, the claimant:
(a) must notify the division of the damage within 72 hours after the damage is discovered; and
(b) allow division personnel reasonable access to the property to verify and alleviate the depredation problem.
(3) (a) The appraisal of the damage shall be made by the claimant and the division as soon after notification as possible.
(b) In determining damage payment, the division and claimant shall consider:
(i) the extent of damage experienced; and
(ii) any revenue the landowner derives from:
(A) participation in a cooperative wildlife management unit;
(B) use of landowner association permits;
(C) use of mitigation permits; and
(D) charging for hunter access.
(c) In determining how to assess and compensate for damages to cultivated crops, the division's determination shall be based on the:
(i) full replacement value in the local market of the cultivated crops that actually have been or will be damaged or consumed by big game animals; and
(ii) cost of delivery of a replacement crop to the location of the damaged crop or other location that is not farther from the source of the replacement crop.
(d) If the claimant and the division are unable to agree on a fair and equitable damage payment, they shall designate a third party, consisting of one or more persons familiar with the crops, fences, or irrigation equipment and the type of game animals doing the damage, to appraise the damage.
(4) (a) Notwithstanding Section [63-38-3.2] 63J-1-303, the total amount of compensation that may be provided by the division pursuant to this section and the total cost of fencing materials provided by the division to prevent crop damage may not exceed the legislative appropriation for fencing material and compensation for damaged crops, fences, and irrigation equipment.
(b) (i) Any claim of $1,000 or less may be paid after appraisal of the damage as provided in Subsection (3), unless the claim brings the total amount of claims submitted by the claimant in the fiscal year to an amount in excess of $1,000.
(ii) Any claim for damage to irrigation equipment may be paid after appraisal of the damage as provided in Subsection (3).
(c) (i) Any claim in excess of $1,000, or claim that brings the total amount of claims submitted by the claimant in the fiscal year to an amount in excess of $1,000, shall be treated as follows:
(A) $1,000 may be paid pursuant to the conditions of this section; and
(B) the amount in excess of $1,000 may not be paid until the total amount of the approved claims of all the claimants and expenses for fencing materials for the fiscal year are determined.
(ii) If the total exceeds the amount appropriated by the Legislature pursuant to Subsection (4)(a), claims in excess of $1,000, or any claim that brings the total amount of a claimant's claims in a fiscal year to an amount in excess of $1,000, shall be prorated.
(5) The division may deny or limit compensation if the claimant:
(a) has failed to exercise reasonable care and diligence to avoid the loss or minimize the damage; or
(b) has unreasonably restricted hunting on land under the claimant's control or passage through the land to access public lands for the purpose of hunting, after receiving written notification from the division of the necessity of allowing such hunting or access to control or mitigate damage by big game.
(6) (a) The Wildlife Board shall make rules specifying procedures for the appeal of division actions under this section.
(b) Upon the petition of an aggrieved party to a final division action, the Wildlife Board may review the action on the record and issue an order modifying or rescinding the division action.
(c) A qualified hearing examiner may be appointed for purposes of taking evidence and making recommendations for a board order. The board shall consider the recommendations of the examiner in making decisions.
(d) Board review of final agency action and judicial review of final board action shall be governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 277. Section 23-19-9 is amended to read:
23-19-9
. Suspension of license or permit privileges -- Suspension of certificates of registration.(1) As used in this section, "license or permit privileges" means the privilege of applying for, purchasing, and exercising the benefits conferred by a license or permit issued by the division.
(2) A hearing officer, appointed by the division, may suspend a person's license or permit privileges if:
(a) in a court of law, the person:
(i) is convicted of:
(A) violating this title or a rule of the Wildlife Board;
(B) killing or injuring domestic livestock while engaged in an activity regulated under this title; or
(C) violating Section 76-10-508 while engaged in an activity regulated under this title;
(ii) enters into a plea in abeyance agreement, in which the person pleads guilty or no contest to an offense listed in Subsection (2)(a)(i), and the plea is held in abeyance; or
(iii) is charged with committing an offense listed in Subsection (2)(a)(i), and the person enters into a diversion agreement which suspends the prosecution of the offense; and
(b) the hearing officer determines the person committed the offense intentionally, knowingly, or recklessly, as defined in Section 76-2-103.
(3) (a) The Wildlife Board shall make rules establishing guidelines that a hearing officer shall consider in determining:
(i) the type of license or permit privileges to suspend; and
(ii) the duration of the suspension.
(b) The Wildlife Board shall ensure that the guidelines established under Subsection (3)(a) are consistent with Subsections (4), (5), and (6).
(4) Except as provided in Subsections (5) and (6), a hearing officer may suspend a person's license or permit privileges according to Subsection (2) for a period of time not to exceed:
(a) seven years for:
(i) a felony conviction;
(ii) a plea of guilty or no contest to an offense punishable as a felony, which plea is held in abeyance pursuant to a plea in abeyance agreement; or
(iii) being charged with an offense punishable as a felony, the prosecution of which is suspended pursuant to a diversion agreement;
(b) five years for:
(i) a class A misdemeanor conviction;
(ii) a plea of guilty or no contest to an offense punishable as a class A misdemeanor, which plea is held in abeyance pursuant to a plea in abeyance agreement; or
(iii) being charged with an offense punishable as a class A misdemeanor, the prosecution of which is suspended pursuant to a diversion agreement;
(c) three years for:
(i) a class B misdemeanor conviction;
(ii) a plea of guilty or no contest to an offense punishable as a class B misdemeanor when the plea is held in abeyance according to a plea in abeyance agreement; or
(iii) being charged with an offense punishable as a class B misdemeanor, the prosecution of which is suspended pursuant to a diversion agreement; and
(d) one year for:
(i) a class C misdemeanor conviction;
(ii) a plea of guilty or no contest to an offense punishable as a class C misdemeanor, when the plea is held in abeyance according to a plea in abeyance agreement; or
(iii) being charged with an offense punishable as a class C misdemeanor, the prosecution of which is suspended according to a diversion agreement.
(5) The hearing officer may double a suspension period established in Subsection (4) for offenses:
(a) committed in violation of an existing suspension or revocation order issued by the courts, division, or Wildlife Board; or
(b) involving the unlawful taking of a trophy animal, as defined in Section 23-13-2.
(6) (a) A hearing officer may suspend, according to Subsection (2), a person's license or permit privileges for a particular license or permit only once for each single criminal episode, as defined in Section 76-1-401.
(b) If a hearing officer addresses two or more single criminal episodes in a hearing, the suspension periods of any license or permit privileges of the same type suspended, according to Subsection (2), may run consecutively.
(c) If a hearing officer suspends, according to Subsection (2), license or permit privileges of the type that have been previously suspended by a court, a hearing officer, or the Wildlife Board and the suspension period has not expired, the suspension periods may run consecutively.
(7) (a) A hearing officer, appointed by the division, may suspend a person's privilege of applying for, purchasing, and exercising the benefits conferred by a certificate of registration if:
(i) the hearing officer determines the person intentionally, knowingly, or recklessly, as defined in Section 76-2-103, violated:
(A) this title;
(B) a rule or order of the Wildlife Board;
(C) the terms of a certificate of registration; or
(D) the terms of a certificate of registration application or agreement; or
(ii) the person, in a court of law:
(A) is convicted of an offense that the hearing officer determines bears a reasonable relationship to the person's ability to safely and responsibly perform the activities authorized by the certificate of registration;
(B) pleads guilty or no contest to an offense that the hearing officer determines bears a reasonable relationship to the person's ability to safely and responsibly perform the activities authorized by the certificate of registration, and the plea is held in abeyance in accordance with a plea in abeyance agreement; or
(C) is charged with an offense that the hearing officer determines bears a reasonable relationship to the person's ability to safely and responsibly perform the activities authorized by the certificate of registration, and prosecution of the offense is suspended in accordance with a diversion agreement.
(b) All certificates of registration for the harvesting of brine shrimp eggs, as defined in Section 59-23-3, shall be suspended by a hearing officer, if the hearing officer determines the holder of the certificates of registration has violated Section 59-23-5.
(8) (a) The director shall appoint a qualified person as a hearing officer to perform the adjudicative functions provided in this section.
(b) The director may not appoint a division employee who investigates or enforces wildlife violations.
(9) (a) The courts may suspend, in criminal sentencing, a person's privilege to apply for, purchase, or exercise the benefits conferred by a license, permit, or certificate of registration.
(b) The courts shall promptly notify the division of any suspension orders or recommendations entered.
(c) The division, upon receiving notification of suspension from the courts, shall prohibit the person from applying for, purchasing, or exercising the benefits conferred by a license, permit, or certification of registration for the duration and of the type specified in the court order.
(d) The hearing officer shall consider any recommendation made by a sentencing court concerning suspension before issuing a suspension order.
(10) (a) A person may not apply for, purchase, possess, or attempt to exercise the benefits conferred by any permit, license, or certificate of registration specified in an order of suspension while that order is in effect.
(b) Any license possessed or obtained in violation of the order shall be considered invalid.
(c) A person who violates Subsection (10)(a) is guilty of a class B misdemeanor.
(11) Before suspension under this section, a person must be:
(a) given written notice of any action the division intends to take; and
(b) provided with an opportunity for a hearing.
(12) (a) A person may file an appeal of a hearing officer's decision with the Wildlife Board.
(b) The Wildlife Board shall review the hearing officer's findings and conclusions and any written documentation submitted at the hearing.
(c) The Wildlife Board may:
(i) take no action;
(ii) vacate or remand the decision; or
(iii) amend the period or type of suspension.
(13) The division shall suspend and reinstate all hunting, fishing, trapping, and falconry privileges consistent with Title 23, Chapter 25, Wildlife Violator Compact.
(14) The Wildlife Board may make rules to implement this section in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 278. Section 23-19-38.2 is amended to read:
23-19-38.2
. Refunds for armed forces or public health or safety organization members -- Criteria.(1) A member of the United States Armed Forces or public health or public safety organization who is mobilized or deployed on order in the interest of national defense or emergency and is precluded from using a purchased license, certificate, tag, or permit, may, as provided in Subsection (2):
(a) receive a refund from the division; and
(b) if the person has drawn a permit, have all opportunities to draw that permit in a future draw reinstated.
(2) To qualify, the person or a legal representative must:
(a) notify the division within a reasonable amount of time that the person is applying for a refund;
(b) surrender the license, certificate, tag, or permit to the division; and
(c) furnish satisfactory proof to the division that the person:
(i) is a member of:
(A) the United States Armed Forces;
(B) a public health organization; or
(C) a public safety organization; and
(ii) was precluded from using the license, certificate, tag, or permit as a result of being called to active duty.
(3) The Wildlife Board may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to administer this section including allowing retroactive refund to September 11, 2001.
Section 279. Section 23-21-2.3 is amended to read:
23-21-2.3
. Review and adoption of management plans.(1) The division shall submit the draft management plan to the Resource Development Coordinating Committee created in Section [63-38d-501] 63J-4-501 and the Habitat Council created by the division for their review and recommendations.
(2) The division shall submit the draft management plan and any recommendations received from the Resource Development Coordinating Committee and the Habitat Council to:
(a) the regional advisory council for the wildlife region in which the lands covered by the management plan are located; and
(b) the regional advisory council for any wildlife region that may be affected by the management plan.
(3) Each regional advisory council reviewing the draft management plan may make recommendations to the division director.
(4) The division director has authority to adopt the management plan, adopt the plan with amendments, or reject the plan.
(5) At the request of the division director or any member of the Wildlife Board, the Wildlife Board may review a management plan to determine whether the plan is consistent with board policies.
(6) The division director may amend a management plan in accordance with recommendations made by the Wildlife Board.
Section 280. Section 23-24-1 is amended to read:
23-24-1
. Procedure to obtain compensation for livestock damage done by bear, mountain lion, or eagle.(1) As used in this section:
(a) "Damage" means injury or loss to livestock.
(b) "Division" means the Division of Wildlife Resources.
(c) "Livestock" means cattle, sheep, goats, or turkeys.
(2) (a) When livestock are damaged by a bear, mountain lion, or an eagle, the owner may receive compensation for the fair market value of the damage.
(b) To obtain this compensation, the owner of the damaged livestock shall notify the division of the damage as soon as possible, but no later than four days after the damage is discovered.
(c) The owner must notify the division each time any damage is discovered.
(3) The livestock owner shall file a proof of loss form, provided by the division, no later than 30 days after the original notification of damage was given to the division by the owner.
(4) (a) (i) The division, with the assistance of the Department of Agriculture and Food shall:
(A) within 30 days after the owner files the proof of loss form, either accept or deny the claim for damages; and
(B) subject to Subsections (4)(a)(ii) through (4)(a)(iv), pay all accepted claims to the extent money appropriated by the Legislature is available for this purpose.
(ii) Money appropriated from the Wildlife Resources Account may be used to provide compensation for only up to 50% of the fair market value of any damaged livestock.
(iii) Money appropriated from the Wildlife Resources Account may not be used to provide compensation for livestock damaged by an eagle.
(iv) The division may not pay any eagle damage claim until the division has paid all accepted mountain lion and bear damage claims for the fiscal year.
(b) The division may not pay mountain lion, bear, or eagle damage claims to a livestock owner unless the owner has filed a completed livestock form and the appropriate fee as outlined in Section 4-23-7 for the immediately preceding and current year.
(c) (i) Unless the division denies a claim for the reason identified in Subsection (4)(b), the owner may appeal the decision to a panel consisting of one person selected by the owner, one person selected by the division, and a third person selected by the first two panel members.
(ii) The panel shall decide whether the division should pay all of the claim, a portion of the claim, or none of the claim.
(5) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Wildlife Board may make and enforce rules to administer and enforce this section.
Section 281. Section 24-1-19 is amended to read:
24-1-19
. Crime Reduction Assistance Program.(1) There is created the Crime Reduction Assistance Program.
(2) The program shall fund crime prevention and law enforcement activities that have the purpose of:
(a) deterring crime by depriving criminals of the profits and proceeds of their illegal activities;
(b) weakening criminal enterprises by removing the instrumentalities of crime;
(c) reducing crimes involving substance abuse by supporting the creation, administration, or operation of drug court programs throughout the state;
(d) encouraging cooperation between local, state, and multijurisdictional law enforcement agencies;
(e) allowing the costs and expenses of law enforcement to be defrayed by the forfeited proceeds of crime; and
(f) increasing the equitability and accountability of the use of forfeited property used to assist law enforcement in reducing and preventing crime.
(3) (a) When property is forfeited under this chapter and transferred to the fund, the Commission on Criminal and Juvenile Justice shall make awards of monies from the fund to state, local, or multijurisdictional law enforcement agencies or political subdivisions of the state in compliance with this section and to further the program purposes under Subsection (2).
(b) In granting the awards, the Commission on Criminal and Juvenile Justice shall ensure that the amount of each award takes into consideration:
(i) the demonstrated needs of the agency;
(ii) the demonstrated ability of the agency to appropriately use the award;
(iii) the degree to which the agency's need is offset through the agency's participation in federal equitable sharing or through other federal and state grant programs; and
(iv) the agency's cooperation with other state and local agencies and task forces.
(4) Agencies or political subdivisions shall apply for program awards by completing and submitting forms specified by the Commission on Criminal and Juvenile Justice.
(5) Applying agencies or political subdivisions shall demonstrate compliance with all reporting and policy requirements applicable under this chapter and under [Title 63, Chapter 25a] Title 63M, Chapter 7, Criminal Justice and Substance Abuse, in order to qualify as a potential award recipient.
(6) Recipient law enforcement agencies may only use program award monies after approval or appropriation by the agency's legislative body, and the award monies are nonlapsing.
(7) A recipient law enforcement agency or political subdivision shall use program awards only for law enforcement or controlled substance law enforcement purposes as described in Subsection (8), and only as these purposes are specified by the agency or political subdivision in its application for the award.
(8) Permissible law enforcement purposes for which award monies may be used include:
(a) controlled substance interdiction and enforcement activities;
(b) drug court programs;
(c) activities calculated to enhance future investigations;
(d) law enforcement training that includes:
(i) implementation of the Fourth Amendment of the federal constitution and Utah Constitution Article I, Section 7, and addresses the protection of the individual's rights of due process;
(ii) protection of the rights of innocent property holders; and
(iii) the Tenth Amendment of the federal constitution regarding states' sovereignty and the states' reserved rights;
(e) law enforcement or detention facilities;
(f) law enforcement operations or equipment which are not routine costs or operational expenses;
(g) drug, gang, or crime prevention education programs which are sponsored in whole or in part by the law enforcement agency or its legislative body; and
(h) matching funds for other state or federal law enforcement grants.
(9) Law enforcement purposes for which award monies may not be granted or used include:
(a) payment of salaries, retirement benefits, or bonuses to any person;
(b) payment of enforcement expenses not related to law enforcement;
(c) uses not specified in the agency's award application;
(d) uses not approved or appropriated by the agency's legislative body;
(e) payments, transfers, or pass-through funding to entities other than law enforcement agencies; or
(f) uses, payments, or expenses that are not within the scope of the agency's functions.
(10) For each fiscal year, any state, local, or multijurisdictional agency or political subdivision that received a program award shall prepare, and file with the Utah Commission on Criminal and Juvenile Justice and the state auditor, a report in a form specified by the Utah Commission on Criminal and Juvenile Justice. The report shall include the following regarding each award:
(a) the agency's name;
(b) the amount of the award;
(c) the date of the award;
(d) how the award has been used; and
(e) a statement signed by both the agency's or political subdivision's executive officer or designee and by the agency's legal counsel, that:
(i) the agency or political subdivision has complied with all inventory, policy, and reporting requirements of this chapter;
(ii) all program awards were used for crime reduction or law enforcement purposes as specified in the application; and
(iii) and only upon approval or appropriation by the agency's or political subdivision's legislative body.
(11) The Utah Commission on Criminal and Juvenile Justice shall report in writing to the legislative Law Enforcement and Criminal Justice Interim Committee annually regarding the forfeited property transferred to the fund, awards made by the program, uses of program awards, and any equitable share of property forfeited by the federal government as reported by agencies pursuant to Subsection 24-1-15(3).
Section 282. Section 26-1-4.1 is amended to read:
26-1-4.1
. Department procedures -- Adjudicative proceedings.The Department of Health shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 283. Section 26-1-5 is amended to read:
26-1-5
. Rules of department.(1) Except in areas regulated by statutory committees created by this title, the department shall have the power to adopt, amend, or rescind rules necessary to carry out the provisions of this title.
(2) Rules shall have the force and effect of law and may deal with matters which materially affect the security of health or the preservation and improvement of public health in the state, and any matters as to which jurisdiction is conferred upon the department by this title.
(3) Every rule adopted by the department pursuant to this section, or a committee established under Section 26-1-7 or 26-1-7.5, shall be subject to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act and shall become effective at the time and in the manner provided in that act.
(4) If, at the next general session of the legislature following the filing of a rule with the legislative research director, the legislature passes a bill disapproving such rule, the rule shall be null and void.
(5) The department or a committee created under Section 26-1-7 or 26-1-7.5, shall not adopt a rule identical to a rule disapproved under Subsection (4) of this section, before the beginning of the next general session of the legislature following the general session at which the rule was disapproved.
Section 284. Section 26-1-6 is amended to read:
26-1-6
. Fee schedule adopted by department.(1) The department may adopt a schedule of fees that may be assessed for services rendered by the department, provided that the fees are:
(a) reasonable and fair; and
(b) submitted to the Legislature as part of the department's annual appropriations request.
(2) When the department submits a fee schedule to the Legislature, the Legislature, in accordance with Section [63-38-3.2] 63J-1-303, may:
(a) approve the fee;
(b) increase or decrease and approve the fee; or
(c) reject any fee submitted to it.
(3) Fees approved by the Legislature pursuant to this section shall be paid into the state treasury in accordance with Section [63-38-9] 63J-1-404.
Section 285. Section 26-1-7.1 is amended to read:
26-1-7.1
. Committee procedures -- Adjudicative proceedings.All committees created by Section 26-1-7 shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 286. Section 26-1-17.5 is amended to read:
26-1-17.5
. Confidential records.(1) A record classified as confidential under this title shall remain confidential, and be released according to the provisions of this title, notwithstanding Section [63-2-909] 63A-12-109.
(2) In addition to those persons granted access to records described in Subsection [63-2-302] 63G-2-302(1)(b), immunization records may be shared among schools, school districts, and local and state health departments and the state Department of Human Services as necessary to assure compliance with Section 53A-11-301 and to prevent, investigate, and control the causes of epidemic, infectious, communicable, and other diseases affecting the public health.
Section 287. Section 26-1-21 is amended to read:
26-1-21
. Disposal of property by department.(1) The department may dispose of any personal property owned by it or any of the entities created under Section 26-1-13, in the manner provided in [Title 63, Chapter 17] Title 63A, Chapter 9, Part 8, Surplus Property Service.
(2) The department may dispose of any real property owned by it or any of the entities created under Section 26-1-13, in the manner provided in Title 65A, Chapter 4.
Section 288. Section 26-2-22 is amended to read:
26-2-22
. Inspection of vital records.(1) (a) The vital records shall be open to inspection, but only in compliance with the provisions of this chapter, department rules, and Section 78-30-18.
(b) It is unlawful for any state or local officer or employee to disclose data contained in vital records contrary to this chapter or department rule.
(c) A custodian of vital records may permit inspection of a vital record or issue a certified copy of a record or a part of a record when the custodian is satisfied that the applicant has demonstrated a direct, tangible, and legitimate interest.
(2) A direct, tangible, and legitimate interest in a vital record is present only if:
(a) the request is from the subject, a member of the subject's immediate family, the guardian of the subject, or a designated legal representative;
(b) the request involves a personal or property right of the subject of the record;
(c) the request is for official purposes of a state, local, or federal governmental agency;
(d) the request is for a statistical or medical research program and prior consent has been obtained from the state registrar; or
(e) the request is a certified copy of an order of a court of record specifying the record to be examined or copied.
(3) For purposes of Subsection (2):
(a) "immediate family member" means a spouse, child, parent, sibling, grandparent, or grandchild;
(b) a designated legal representative means an attorney, physician, funeral service director, genealogist, or other agent of the subject or the subject's immediate family who has been delegated the authority to access vital records;
(c) except as provided in Title 78, Chapter 30, Adoption, a parent, or the immediate family member of a parent, who does not have legal or physical custody of or visitation or parent-time rights for a child because of the termination of parental rights pursuant to Title 78, Chapter 3a, Juvenile Court Act of 1996, or by virtue of consenting to or relinquishing a child for adoption pursuant to Title 78, Chapter 30, Adoption, may not be considered as having a direct, tangible, and legitimate interest; and
(d) a commercial firm or agency requesting names, addresses, or similar information may not be considered as having a direct, tangible, and legitimate interest.
(4) Upon payment of a fee established in accordance with Section [63-38-3.2] 63J-1-303, the following records shall be available to the public:
(a) except as provided in Subsection 26-2-10(4)(b), a birth record, excluding confidential information collected for medical and health use, if 100 years or more have passed since the date of birth;
(b) a death record if 50 years or more have passed since the date of death; and
(c) a vital record not subject to Subsection (4)(a) or (b) if 75 years or more have passed since the date of the event upon which the record is based.
Section 289. Section 26-6b-1 is amended to read:
26-6b-1
. Applicability of chapter -- Administrative procedures.(1) This chapter applies to involuntary examination, treatment, isolation, and quarantine actions applied to individuals or groups of individuals by the department or a local health department.
(2) The provisions of this chapter supersede the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) The Department of Health may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer the provisions of this chapter.
Section 290. Section 26-8a-104 is amended to read:
26-8a-104
. Committee powers.The committee shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
(1) establish certification and reciprocity requirements under Section 26-8a-302;
(2) establish designation requirements under Section 26-8a-303;
(3) promote the development of a statewide emergency medical services system under Section 26-8a-203;
(4) establish insurance requirements for ambulance providers;
(5) provide guidelines for requiring patient data under Section 26-8a-203;
(6) establish criteria for awarding grants under Section 26-8a-207;
(7) establish requirements for the coordination of emergency medical services and the medical supervision of emergency medical service providers under Section 26-8a-306; and
(8) are necessary to carry out the responsibilities of the committee as specified in other sections of this chapter.
Section 291. Section 26-8a-105 is amended to read:
26-8a-105
. Department powers.The department shall:
(1) coordinate the emergency medical services within the state;
(2) administer this chapter and the rules established pursuant to it;
(3) establish a voluntary task force representing a diversity of emergency medical service providers to advise the department and the committee on rules; and
(4) adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(a) license ambulance providers and paramedic providers;
(b) permit ambulances and emergency response vehicles;
(c) establish application, submission, and procedural requirements for licenses, designations, certificates, and permits; and
(d) establish and implement the programs, plans, and responsibilities as specified in other sections of this chapter.
Section 292. Section 26-8a-207 is amended to read:
26-8a-207
. Emergency medical services grant program.(1) (a) The department shall receive as dedicated credits the amount established in Section [63-63a-3] 51-9-403. That amount shall be transferred to the department by the Division of Finance from funds generated by the surcharge imposed under [Title 63, Chapter 63a] Title 51, Chapter 9, Part 4, Crime Victims Reparations Trust, Public Safety Support Funds, Substance Abuse Prevention Account, and Services for Victims of Domestic Violence Account.
(b) Funds transferred to the department under this section shall be used for improvement of statewide delivery of emergency medical services and administrative costs as described in Subsection (2)(a). Appropriations to the department for the purposes enumerated in this section shall be made from those dedicated credits.
(c) All funding for the program created by this section shall be nonlapsing.
(2) (a) The department may use the funds transferred to it under Subsection (1):
(i) to provide staff support; and
(ii) for other expenses incurred in:
(A) administration of grant funds; and
(B) other department administrative costs under this chapter.
(b) After funding staff support, administrative expenses, and trauma system development, the department and the committee shall make emergency medical services grants from the remaining funds received as dedicated credits under Subsection (1). A recipient of a grant under this Subsection (2)(b) must actively provide emergency medical services within the state.
(i) The department shall distribute 42-1/2% as per capita block grants for use specifically related to the provision of emergency medical services to nonprofit prehospital emergency medical services providers that are either licensed or designated and to emergency medical services that are the primary emergency medical services for a service area. The department shall determine the grant amounts by prorating available funds on a per capita basis by county as described in department rule.
(ii) The committee shall award 42-1/2% of the remaining funds as competitive grants for use specifically related to the provision of emergency medical services based upon rules established by the committee.
(iii) The committee shall use 15% of the remaining funds to fund high school emergency medical training programs.
Section 293. Section 26-8a-310 is amended to read:
26-8a-310
. Criminal background check.(1) At the time of application for, or renewal of, a certificate, the department shall obtain, at the applicant's expense, information from a criminal history record or warrant of arrest information maintained by the Department of Public Safety pursuant to Title 53, Chapter 10, Part 2, Bureau of Criminal Identification, to determine whether the individual has been convicted of a crime that bears upon his fitness to be certified or to have responsibility for the safety and well-being of children, the elderly, or persons with disabilities.
(2) (a) An applicant who has not had residency in the state for the last five years shall submit fingerprints and other identifying information.
(b) The department shall submit fingerprints obtained under Subsection (2)(a) to the Department of Public Safety to be forwarded to the Federal Bureau of Investigation for a nationwide criminal history record check to determine whether the individual has been convicted of a crime that bears upon his fitness to be certified or to have responsibility for the safety and well-being of children, the elderly, or persons with disabilities.
(3) The department shall have access to juvenile court records to determine whether the applicant has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or misdemeanor and that bears upon the applicant's fitness to be certified or to have responsibility for the safety and well-being of children, the elderly, or persons with disabilities if:
(a) the applicant is under the age of 28; or
(b) the applicant is over the age of 28 and has been convicted, has pleaded no contest, or is currently subject to a plea in abeyance or diversion agreement for a felony or misdemeanor.
(4) Information obtained pursuant to Subsections (1) through (3) may be used to:
(a) withhold certification or renewal;
(b) commence or substantiate disciplinary action under Section 26-8a-503;
(c) enforce the provisions of this chapter; and
(d) notify the individual's employer as necessary to protect the public.
(5) The department shall adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under which an applicant who has been convicted of a criminal offense may receive a certification under this chapter.
Section 294. Section 26-8a-404 is amended to read:
26-8a-404
. Ground ambulance and paramedic licenses -- Application and department review.(1) Except as provided in Section 26-8a-413, an applicant for a ground ambulance or paramedic license shall apply to the department for a license only by:
(a) submitting a completed application;
(b) providing information in the format required by the department; and
(c) paying the required fees, including the cost of the hearing officer.
(2) The department shall make rules establishing minimum qualifications and requirements for:
(a) personnel;
(b) capital reserves;
(c) equipment;
(d) a business plan;
(e) operational procedures;
(f) medical direction agreements;
(g) management and control; and
(h) other matters that may be relevant to an applicant's ability to provide ground ambulance or paramedic service.
(3) An application for a license to provide ground ambulance service or paramedic service shall be for all ground ambulance services or paramedic services arising within the geographic service area, except that an applicant may apply for a license for less than all ground ambulance services or all paramedic services arising within an exclusive geographic area if it can demonstrate how the remainder of that area will be served.
(4) (a) A ground ambulance service licensee may apply to the department for a license to provide a higher level of service as defined by department rule if:
(i) the application for the license is limited to non-911 ambulance or paramedic services; and
(ii) the application includes:
(A) a copy of the new treatment protocols for the higher level of service approved by the off-line medical director;
(B) an assessment of field performance by the applicant's off-line director; and
(C) an updated plan of operation demonstrating the ability of the applicant to provide the higher level of service.
(b) If the department determines that the applicant has demonstrated the ability to provide the higher level of service in accordance with Subsection (4)(a), the department shall issue a revised license reflecting the higher level of service and the requirements of Section 26-8a-408 do not apply.
(5) Upon receiving a completed application and the required fees, the department shall review the application and determine whether the application meets the minimum qualifications and requirements for licensure.
(6) The department may deny an application if it finds that it contains any materially false or misleading information, is incomplete, or if the application demonstrates that the applicant fails to meet the minimum qualifications and requirements for licensure under Subsection (2).
(7) If the department denies an application, it shall notify the applicant in writing setting forth the grounds for the denial. A denial may be appealed under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 295. Section 26-8a-405.3 is amended to read:
26-8a-405.3
. Use of competitive sealed proposals -- Procedure -- Appeal rights.(1) (a) Competitive sealed proposals for paramedic or 911 ambulance services under Section 26-8a-405.2 shall be solicited through a request for proposal and the provisions of this section.
(b) The governing body of the political subdivision shall approve the request for proposal prior to the notice of the request for proposals under Subsection (1)(c).
(c) Notice of the request for proposals must be published at least once a week for three consecutive weeks in a newspaper of general circulation published in the county, or if there is no such newspaper, then notice must be posted for at least 20 days in at least five public places in the county.
(2) (a) Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiations.
(b) (i) Subsequent to the published notice, and prior to selecting an applicant, the political subdivision must hold a presubmission conference with interested applicants for the purpose of assuring full understanding of, and responsiveness to, solicitation requirements.
(ii) A political subdivision shall allow at least 90 days from the presubmission conference for the proposers to submit proposals.
(c) Subsequent to the presubmission conference, the political subdivision may issue addenda to the request for proposals. An addenda to a request for proposal must be finalized and posted by the political subdivision at least 45 days prior to the date on which the proposal must be submitted.
(d) Offerors to the request for proposals shall be accorded fair and equal treatment with respect to any opportunity for discussion and revisions of proposals, and revisions may be permitted after submission and before a contract is awarded for the purpose of obtaining best and final offers.
(e) In conducting discussions, there shall be no disclosures of any information derived from proposals submitted by competing offerors.
(3) (a) (i) A political subdivision may select an applicant approved by the department under Section 26-8a-404 to provide 911 ambulance or paramedic services by contract to the most responsible offeror as defined in Subsection [63-56-105] 63G-6-103(24).
(ii) An award under Subsection (3)(a)(i) shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the political subdivision, taking into consideration price and the evaluation factors set forth in the request for proposal.
(b) The applicants who are approved under Section 26-8a-405 and who are selected under this section may be the political subdivision issuing the request for competitive sealed proposals, or any other public entity or entities, any private person or entity, or any combination thereof.
(c) A political subdivision may reject all of the competitive proposals.
(4) In seeking competitive sealed proposals and awarding contracts under this section, a political subdivision:
(a) shall apply the public convenience and necessity factors listed in Subsections 26-8a-408(2) through (6);
(b) shall require the applicant responding to the proposal to disclose how the applicant will meet performance standards in the request for proposal;
(c) may not require or restrict an applicant to a certain method of meeting the performance standards, including:
(i) requiring ambulance medical personnel to also be a firefighter; or
(ii) mandating that offerors use fire stations or dispatch services of the political subdivision;
(d) (i) shall require an applicant to submit the proposal based on full cost accounting in accordance with generally accepted accounting principals; and
(ii) if the applicant is a governmental entity, in addition to the requirements of Subsection (4)(e)(i), in accordance with generally accepted government auditing standards and in compliance with the State of Utah Legal Compliance Audit Guide; and
(e) shall set forth in the request for proposal:
(i) the method for determining full cost accounting in accordance with generally accepted accounting principles, and require an applicant to submit the proposal based on such full cost accounting principles;
(ii) guidelines established to further competition and provider accountability; and
(iii) a list of the factors that will be considered by the political subdivision in the award of the contract, including by percentage, the relative weight of the factors established under this Subsection (4)(e), which may include such things as:
(A) response times;
(B) staging locations;
(C) experience;
(D) quality of care; and
(E) cost, consistent with the cost accounting method in Subsection (4)(e)(i).
(5) (a) Notwithstanding the provisions of Subsection [63-56-102] 63G-6-104(3), the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Part 8, Legal and Contractual Remedies, apply to the procurement process required by this section, except as provided in Subsection (5)(c).
(b) The Procurement Appeals Board created in Section [63-56-807] 63G-6-807 shall have jurisdiction to review and determine an appeal of an offeror under this section in the same manner as provided in Section [63-56-810] 63G-6-810.
(c) (i) An offeror may appeal the solicitation or award as provided by the political subdivision's procedures. After all political subdivision appeal rights are exhausted, the offeror may appeal under the provisions of Subsections (5)(a) and (b).
(ii) The factual determination required by Subsection [63-56-813] 63G-6-813(1) shall be based on whether the solicitation or award was made in accordance with the procedures set forth in this section and Section 26-8a-405.2.
(d) The determination of an issue of fact by the appeals board shall be final and conclusive unless arbitrary and capricious or clearly erroneous as provided in Section [63-56-813] 63G-6-813.
Section 296. Section 26-8a-407 is amended to read:
26-8a-407
. Ground ambulance and paramedic licenses -- Proceedings.(1) The presiding officer shall:
(a) commence an informal adjudicative proceeding within 120 days of receiving a completed application;
(b) meet with the applicant and objecting interested parties and provide no less than 120 days for a negotiated resolution, consistent with the criteria in Section 26-8a-408;
(c) set aside a separate time during the proceedings to accept public comment on the application; and
(d) present a written decision to the executive director if a resolution has been reached that satisfies the criteria in Section 26-8a-408.
(2) At any time during an informal adjudicative proceeding under Subsection (1), any party may request conversion of the informal adjudicative proceeding to a formal adjudicative proceeding in accordance with Section [63-46b-4] 63G-4-202.
(3) Upon conversion to a formal adjudicative proceeding, a hearing officer shall be assigned to the application as provided in Section 26-8a-409. The hearing office shall:
(a) set aside a separate time during the proceedings to accept public comment on the application;
(b) apply the criteria established in Section 26-8a-408; and
(c) present a recommended decision to the executive director in writing.
(4) The executive director may, as set forth in a final written order, accept, modify, reject, or remand the decision of a presiding or hearing officer after:
(a) reviewing the record;
(b) giving due deference to the officer's decision; and
(c) determining whether the criteria in Section 26-8a-408 have been satisfied.
Section 297. Section 26-8a-414 is amended to read:
26-8a-414
. Annexations.(1) A municipality shall comply with the provisions of this section if the municipality is licensed under this chapter and desires to provide service to an area that is:
(a) included in a petition for annexation under Title 10, Chapter 2, Part 4, Annexation; and
(b) currently serviced by another provider licensed under this chapter.
(2) (a) (i) At least 45 days prior to approving a petition for annexation, the municipality shall certify to the department that by the time of the approval of the annexation the municipality can meet or exceed the current level of service provided by the existing licensee for the annexed area by meeting the requirements of Subsections (2)(b)(ii)(A) through (D); and
(ii) no later than three business days after the municipality files a petition for annexation in accordance with Section 10-2-403, provide written notice of the petition for annexation to:
(A) the existing licensee providing service to the area included in the petition of annexation; and
(B) the department.
(b) (i) After receiving a certification under Subsection (2)(a), but prior to the municipality approving a petition for annexation, the department may audit the municipality only to verify the requirements of Subsections (2)(b)(ii)(A) through (D).
(ii) If the department elects to conduct an audit, the department shall make a finding that the municipality can meet or exceed the current level of service provided by the existing licensee for the annexed area if the department finds that the municipality has or will have by the time of the approval of the annexation:
(A) adequate trained personnel to deliver basic and advanced life support services;
(B) adequate apparatus and equipment to deliver emergency medical services;
(C) adequate funding for personnel and equipment; and
(D) appropriate medical controls, such as a medical director and base hospital.
(iii) The department shall submit the results of the audit in writing to the municipal legislative body.
(3) (a) If the department audit finds that the municipality meets the requirements of Subsection (2)(b)(ii), the department shall issue an amended license to the municipality and all other affected licensees to reflect the municipality's new boundaries after the department receives notice of the approval of the petition for annexation from the municipality in accordance with Section 10-2-425.
(b) (i) Notwithstanding the provisions of Subsection [63-46b-1] 63G-4-102(2)(k), if the department audit finds that the municipality fails to meet the requirements of Subsection (2)(b)(ii), the municipality may request an adjudicative proceeding under the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. The municipality may approve the petition for annexation while an adjudicative proceeding requested under this Subsection (3)(b)(i) is pending.
(ii) The department shall conduct an adjudicative proceeding when requested under Subsection (3)(b)(i).
(iii) Notwithstanding the provisions of Sections 26-8a-404 through 26-8a-409, in any adjudicative proceeding held under the provisions of Subsection (3)(b)(i), the department bears the burden of establishing that the municipality cannot, by the time of the approval of the annexation, meet the requirements of Subsection (2)(b)(ii).
(c) If, at the time of the approval of the annexation, an adjudicative proceeding is pending under the provisions of Subsection (3)(b)(i), the department shall issue amended licenses if the municipality prevails in the adjudicative proceeding.
Section 298. Section 26-8a-503 is amended to read:
26-8a-503
. Discipline of emergency medical services personnel.(1) The department may refuse to issue a certificate or renewal, or revoke, suspend, restrict, or place on probation an individual's certificate if:
(a) the individual does not meet the qualifications for certification under Section 26-8a-302;
(b) the individual has engaged in conduct, as defined by committee rule, that:
(i) is unprofessional;
(ii) is adverse to the public health, safety, morals, or welfare; or
(iii) would adversely affect public trust in the emergency medical service system;
(c) the individual has violated Section 26-8a-502 or other provision of this chapter;
(d) a court of competent jurisdiction has determined the individual to be mentally incompetent for any reason; or
(e) the individual is unable to provide emergency medical services with reasonable skill and safety because of illness, drunkenness, use of drugs, narcotics, chemicals, or any other type of material, or as a result of any other mental or physical condition, when the individual's condition demonstrates a clear and unjustifiable threat or potential threat to oneself, coworkers, or the public health, safety, or welfare that cannot be reasonably mitigated.
(2) (a) An action to revoke, suspend, restrict, or place a certificate on probation shall be done in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Notwithstanding Subsection (2)(a), the department may issue a cease and desist order under Section 26-8a-507 to immediately suspend an individual's certificate pending an administrative proceeding to be held within 30 days if there is evidence to show that the individual poses a clear, immediate, and unjustifiable threat or potential threat to the public health, safety, or welfare.
(3) An individual whose certificate has been suspended, revoked, or restricted may apply for reinstatement of the certificate at reasonable intervals and upon compliance with any conditions imposed upon the certificate by statute, committee rule, or the terms of the suspension, revocation, or restriction.
(4) In addition to taking disciplinary action under Subsection (1), the department may impose sanctions in accordance with Section 26-23-6.
Section 299. Section 26-8a-504 is amended to read:
26-8a-504
. Discipline of designated and licensed providers.(1) The department may refuse to issue a license or designation or a renewal, or revoke, suspend, restrict, or place on probation, an emergency medical service provider's license or designation if the provider has:
(a) failed to abide by terms of the license or designation;
(b) violated statute or rule;
(c) failed to provide services at the level or in the exclusive geographic service area required by the license or designation;
(d) failed to submit a renewal application in a timely fashion as required by department rule;
(e) failed to follow operational standards established by the committee; or
(f) committed an act in the performance of a professional duty that endangered the public or constituted gross negligence.
(2) (a) An action to revoke, suspend, restrict, or place a license or designation on probation shall be done in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Notwithstanding Subsection (2)(a), the department may issue a cease and desist order under Section 26-8a-507 to immediately suspend a license or designation pending an administrative proceeding to be held within 30 days if there is evidence to show that the provider or facility poses a clear, immediate, and unjustifiable threat or potential threat to the public health, safety, or welfare.
(3) In addition to taking disciplinary action under Subsection (1), the department may impose sanctions in accordance with Section 26-23-6.
Section 300. Section 26-15a-102 is amended to read:
26-15a-102
. Definitions.(1) "Back country food service establishment" means a federal or state licensed back country guiding or outfitting business that:
(a) provides food services; and
(b) meets department recognized federal or state food service safety regulations for food handlers.
(2) "Certified food safety manager" means a manager of a food service establishment who:
(a) passes successfully a department-approved examination;
(b) successfully completes, every three years, renewal requirements established by department rule consistent with original certification requirements; and
(c) submits to the appropriate local health department the documentation required by Section 26-15a-106.
(3) "Food service establishment" means any place or area within a business or organization where potentially hazardous foods are prepared and intended for individual portion service and consumption by the general public, whether the consumption is on or off the premises, and whether or not a fee is charged for the food.
(4) "Local health department" means a local health department as defined in Subsection 26A-1-102(5).
(5) "Potentially hazardous foods" shall be defined by the department by administrative rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 301. Section 26-15a-104 is amended to read:
26-15a-104
. Food service establishment requirements -- Enforcement -- Right of appeal.(1) Each food service establishment in the state shall be managed by at least one full-time certified food safety manager at each establishment site, who need not be present at the establishment site during all its hours of operation.
(2) Within 60 days of the termination of a certified food safety manager's employment that results in the food service establishment no longer being in compliance with Subsection (1), the food service establishment shall:
(a) employ a new certified food safety manager; or
(b) designate another employee to become the establishment's certified food safety manager who shall commence a department-approved food safety manager training course.
(3) Compliance with the 60-day time period provided in Subsection (2) may be extended by the local health department for reasonable cause, as determined by the department by rule.
(4) (a) The local health department may determine whether a food service establishment is in compliance with this section by visiting the establishment during regular business hours and requesting information and documentation about the employment of a certified food safety manager.
(b) If a violation of this section is identified, the local health department shall propose remedial action to bring the food service establishment into compliance.
(c) A food service establishment receiving notice of a violation and proposed remedial action from a local health department may appeal the notice of violation and proposed remedial action pursuant to procedures established by the local health department, which shall be essentially consistent with the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. Notwithstanding the provisions of Section [63-46b-15] 63G-4-402, an appeal of a local health department decision to a district court shall be conducted as an original, independent proceeding, and not as a review of the proceedings conducted by the local health department. The district court shall give no deference to the findings or conclusions of the local health department.
Section 302. Section 26-15a-105 is amended to read:
26-15a-105
. Exemptions to food service establishment requirements.(1) The following are not subject to the provisions of Section 26-15a-104:
(a) special events sponsored by municipal or nonprofit civic organizations, including food booths at school sporting events and little league athletic events and church functions;
(b) temporary event food services approved by a local health department;
(c) vendors and other food service establishments that serve only commercially prepackaged foods and beverages as defined by the department by rule;
(d) private homes not used as a commercial food service establishment;
(e) health care facilities licensed under Chapter 21, Health Care Facility Licensing and Inspection Act;
(f) bed and breakfast establishments at which the only meal served is a continental breakfast as defined by the department by rule;
(g) residential child care providers;
(h) child care providers and programs licensed under Chapter 39, Utah Child Care Licensing Act;
(i) back country food service establishments; and
(j) a lowest risk or permitted food establishment category determined by a risk assessment evaluation established by the department by administrative rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Nothing in this section may be construed as exempting a food service establishment described in Subsection (1) from any other applicable food safety laws of this state.
Section 303. Section 26-18-3 is amended to read:
26-18-3
. Administration of Medicaid program by department -- Disciplinary measures and sanctions -- Funds collected.(1) The department shall be the single state agency responsible for the administration of the Medicaid program in connection with the United States Department of Health and Human Services pursuant to Title XIX of the Social Security Act.
(2) (a) The department shall implement the Medicaid program through administrative rules in conformity with this chapter, [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the requirements of Title XIX, and applicable federal regulations.
(b) (i) The rules adopted under Subsection (2)(a) shall include, in addition to other rules necessary to implement the program, the standards used by the department for determining eligibility for Medicaid services, the services and benefits to be covered by the Medicaid program, and reimbursement methodologies for providers under the Medicaid program.
(ii) If the department implements a change in the Medicaid State Plan, initiates a new Medicaid waiver, initiates an amendment to an existing Medicaid waiver, or initiates a rate change requiring public notice under state or federal law, the department shall, prior to adopting the change, report to either the Legislative Executive Appropriations Committee or the Legislative Health and Human Services Appropriations Subcommittee and include in the report:
(A) the proposed change in services or reimbursement;
(B) the effect of an increase or decrease in services or benefits on individuals and families;
(C) the degree to which any proposed cut may result in cost-shifting to more expensive services in health or human service programs; and
(D) the effect of any proposed increase of benefits or reimbursement on current and future appropriations from the Legislature to the department.
(iii) Any rules adopted by the department under this Subsection (2) are subject to review and reauthorization by the Legislature in accordance with Section [63-46a-11.5] 63G-3-502.
(3) The department may, in its discretion, contract with the Department of Human Services or other qualified agencies for services in connection with the administration of the Medicaid program, including but not limited to the determination of the eligibility of individuals for the program, recovery of overpayments, and enforcement of fraud and abuse laws, consistent with Section 26-20-13, to the extent permitted by law and quality control services.
(4) The department shall provide, by rule, disciplinary measures and sanctions for Medicaid providers who fail to comply with the rules and procedures of the program, provided that sanctions imposed administratively may not extend beyond:
(a) termination from the program;
(b) recovery of claim reimbursements incorrectly paid; and
(c) those specified in Section 1919 of Title XIX of the federal Social Security Act.
(5) Funds collected as a result of a sanction imposed under Section 1919 of Title XIX of the federal Social Security Act shall be deposited in the General Fund as nonlapsing dedicated credits to be used by the division in accordance with the requirements of that section.
(6) (a) In determining whether an applicant or recipient is eligible for a service or benefit under this part or Chapter 40, Utah Children's Health Insurance Act, the department shall, if Subsection (6)(b) is satisfied, exclude from consideration one passenger vehicle designated by the applicant or recipient.
(b) Before Subsection (6)(a) may be applied:
(i) the federal government must:
(A) determine that Subsection (6)(a) may be implemented within the state's existing public assistance-related waivers as of January 1, 1999;
(B) extend a waiver to the state permitting the implementation of Subsection (6)(a); or
(C) determine that the state's waivers that permit dual eligibility determinations for cash assistance and Medicaid are no longer valid; and
(ii) the department must determine that Subsection (6)(a) can be implemented within existing funding.
(7) (a) For purposes of this Subsection (7):
(i) "aged, blind, or disabled" shall be defined by administrative rule; and
(ii) "spend down" means an amount of income in excess of the allowable income standard that must be paid in cash to the department or incurred through the medical services not paid by Medicaid.
(b) In determining whether an applicant or recipient who is aged, blind, or disabled is eligible for a service or benefit under this chapter, the department shall use 100% of the federal poverty level as:
(i) the allowable income standard for eligibility for services or benefits; and
(ii) the allowable income standard for eligibility as a result of spend down.
Section 304. Section 26-18-103 is amended to read:
26-18-103
. DUR Board -- Responsibilities.The board shall:
(1) develop rules necessary to carry out its responsibilities as defined in this part;
(2) oversee the implementation of a Medicaid retrospective and prospective DUR program in accordance with this part, including responsibility for approving provisions of contractual agreements between the Medicaid program and any other entity that will process and review Medicaid drug claims and profiles for the DUR program in accordance with this part;
(3) develop and apply predetermined criteria and standards to be used in retrospective and prospective DUR, ensuring that the criteria and standards are based on the compendia, and that they are developed with professional input, in a consensus fashion, with provisions for timely revision and assessment as necessary. The DUR standards developed by the board shall reflect the local practices of physicians in order to monitor:
(a) therapeutic appropriateness;
(b) overutilization or underutilization;
(c) therapeutic duplication;
(d) drug-disease contraindications;
(e) drug-drug interactions;
(f) incorrect drug dosage or duration of drug treatment; and
(g) clinical abuse and misuse;
(4) develop, select, apply, and assess interventions and remedial strategies for physicians, pharmacists, and recipients that are educational and not punitive in nature, in order to improve the quality of care;
(5) disseminate information to physicians and pharmacists to ensure that they are aware of the board's duties and powers;
(6) provide written, oral, or electronic reminders of patient-specific or drug-specific information, designed to ensure recipient, physician, and pharmacist confidentiality, and suggest changes in prescribing or dispensing practices designed to improve the quality of care;
(7) utilize face-to-face discussions between experts in drug therapy and the prescriber or pharmacist who has been targeted for educational intervention;
(8) conduct intensified reviews or monitoring of selected prescribers or pharmacists;
(9) create an educational program using data provided through DUR to provide active and ongoing educational outreach programs to improve prescribing and dispensing practices, either directly or by contract with other governmental or private entities;
(10) provide a timely evaluation of intervention to determine if those interventions have improved the quality of care;
(11) publish an annual report, subject to public comment prior to its issuance, and submit that report to the United States Department of Health and Human Services by December 1 of each year. That report shall also be submitted to legislative leadership, the executive director, the president of the Utah Pharmaceutical Association, and the president of the Utah Medical Association by December 1 of each year. The report shall include:
(a) an overview of the activities of the board and the DUR program;
(b) a description of interventions used and their effectiveness, specifying whether the intervention was a result of underutilization or overutilization of drugs, without disclosing the identities of individual physicians, pharmacists, or recipients;
(c) the costs of administering the DUR program;
(d) any fiscal savings resulting from the DUR program;
(e) an overview of the fiscal impact of the DUR program to other areas of the Medicaid program such as hospitalization or long-term care costs;
(f) a quantifiable assessment of whether DUR has improved the recipient's quality of care;
(g) a review of the total number of prescriptions, by drug therapeutic class;
(h) an assessment of the impact of educational programs or interventions on prescribing or dispensing practices; and
(i) recommendations for DUR program improvement;
(12) develop a working agreement with related boards or agencies, including the State Board of Pharmacy, Physicians' Licensing Board, and SURS staff within the division, in order to clarify areas of responsibility for each, where those areas may overlap;
(13) establish a grievance process for physicians and pharmacists under this part, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(14) publish and disseminate educational information to physicians and pharmacists concerning the board and the DUR program, including information regarding:
(a) identification and reduction of the frequency of patterns of fraud, abuse, gross overuse, inappropriate, or medically unnecessary care among physicians, pharmacists, and recipients;
(b) potential or actual severe or adverse reactions to drugs;
(c) therapeutic appropriateness;
(d) overutilization or underutilization;
(e) appropriate use of generics;
(f) therapeutic duplication;
(g) drug-disease contraindications;
(h) drug-drug interactions;
(i) incorrect drug dosage and duration of drug treatment;
(j) drug allergy interactions; and
(k) clinical abuse and misuse;
(15) develop and publish, with the input of the State Board of Pharmacy, guidelines and standards to be used by pharmacists in counseling Medicaid recipients in accordance with this part. The guidelines shall ensure that the recipient may refuse counseling and that the refusal is to be documented by the pharmacist. Items to be discussed as part of that counseling include:
(a) the name and description of the medication;
(b) administration, form, and duration of therapy;
(c) special directions and precautions for use;
(d) common severe side effects or interactions, and therapeutic interactions, and how to avoid those occurrences;
(e) techniques for self-monitoring drug therapy;
(f) proper storage;
(g) prescription refill information; and
(h) action to be taken in the event of a missed dose; and
(16) establish procedures in cooperation with the State Board of Pharmacy for pharmacists to record information to be collected under this part. The recorded information shall include:
(a) the name, address, age, and gender of the recipient;
(b) individual history of the recipient where significant, including disease state, known allergies and drug reactions, and a comprehensive list of medications and relevant devices;
(c) the pharmacist's comments on the individual's drug therapy;
(d) name of prescriber; and
(e) name of drug, dose, duration of therapy, and directions for use.
Section 305. Section 26-18-104 is amended to read:
26-18-104
. Confidentiality of records.(1) Information obtained under this part shall be treated as confidential or controlled information under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) The board shall establish procedures insuring that the information described in Subsection 26-18-103(16) is held confidential by the pharmacist, being provided to the physician only upon request.
(3) The board shall adopt and implement procedures designed to ensure the confidentiality of all information collected, stored, retrieved, assessed, or analyzed by the board, staff to the board, or contractors to the DUR program, that identifies individual physicians, pharmacists, or recipients. The board may have access to identifying information for purposes of carrying out intervention activities, but that identifying information may not be released to anyone other than a member of the board. The board may release cumulative nonidentifying information for research purposes.
Section 306. Section 26-18-304 is amended to read:
26-18-304
. Process and criteria for awarding grants.The department shall establish rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing the application form, process, and criteria it will use in awarding grants under this chapter. In awarding grants, the department shall consider the extent to which the applicant:
(1) demonstrates that the area or a population group to be served under the application has a shortage of primary health care and that the services will be located so that they will provide assistance to the greatest number of persons residing in such area or included in such population group;
(2) utilizes other sources of funding, including private funding, to provide primary health care;
(3) demonstrates the ability and expertise to serve traditionally medically underserved populations including persons of limited English-speaking ability, single heads of households, the elderly, persons with low incomes, and persons with chronic diseases;
(4) demonstrates that it will assume financial risk for a specified number of medically underserved persons within its catchment area for a predetermined level of care on a prepaid capitation basis; and
(5) meets other criteria determined by the department.
Section 307. Section 26-18-504 is amended to read:
26-18-504
. Appeals of division decision -- Rulemaking authority -- Application of act.(1) A decision by the director under this part to deny Medicaid certification for a nursing care facility program or to deny additional bed capacity for an existing certified program is subject to review under the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) The department shall make rules to administer and enforce this part in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) A nursing care facility may receive Medicaid certification under the rules in effect prior to July 1, 2004 if the nursing care facility, prior to May 4, 2004:
(a) paid applicable fees to the department; and
(b) submits construction plans to the department; or
(c) is in a current phase of construction approved by the department.
(4) In the event the department is at risk for a federal disallowance with regard to a Medicaid recipient being served in a nursing care facility program that is not Medicaid certified, the department may grant temporary Medicaid certification to that facility for up to 24 months. The department may place conditions on the certification, such as not allowing additional admissions of Medicaid recipients to the program.
Section 308. Section 26-18a-4 is amended to read:
26-18a-4
. Creation of Kurt Oscarson Children's Organ Transplant Trust Account.(1) There is created a restricted account within the General Fund pursuant to Section 51-5-4 known as the Kurt Oscarson Children's Organ Transplant Trust Account. Private contributions received under this section and Section 59-10-550 shall be deposited into the trust account to be used only for the programs and purposes described in Section 26-18a-3.
(2) Money shall be appropriated from the trust account to the committee in accordance with [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
(3) In addition to funds received under Section 59-10-550, the committee may accept transfers, grants, gifts, bequests, or any money made available from any source to implement this chapter.
Section 309. Section 26-21-5 is amended to read:
26-21-5
. Duties of committee.The committee shall:
(1) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) for the licensing of health-care facilities; and
(b) requiring the submission of architectural plans and specifications for any proposed new health-care facility or renovation to the department for review;
(2) approve the information for applications for licensure pursuant to Section 26-21-9;
(3) advise the department as requested concerning the interpretation and enforcement of the rules established under this chapter; and
(4) advise, consult, cooperate with, and provide technical assistance to other agencies of the state and federal government, and other states and affected groups or persons in carrying out the purposes of this chapter.
Section 310. Section 26-21-9.5 is amended to read:
26-21-9.5
. Criminal background check and Licensing Information System check.(1) For purposes of this section:
(a) "Covered health care facility" means:
(i) home health care agencies;
(ii) hospices;
(iii) nursing care facilities;
(iv) assisted-living facilities;
(v) small health care facilities; and
(vi) end stage renal disease facilities.
(b) "Covered person" includes:
(i) the following people who provide direct patient care:
(A) employees;
(B) volunteers; and
(C) people under contract with the facility; and
(ii) for residential settings, any individual residing in the home where the assisted living or small health care program is to be licensed who:
(A) is 18 years of age or older; or
(B) is a child between the age of 12 and 17 years of age; however, the identifying information required for a child between the age of 12 and 17 does not include fingerprints.
(2) In addition to the licensing requirements of Sections 26-21-8 and 26-21-9, a covered health care facility at the time of initial application for a license and license renewal shall:
(a) submit the name and other identifying information of each covered person at the covered facility who:
(i) provides direct care to a patient; and
(ii) has been the subject of a criminal background check within the preceding three-year period by a public or private entity recognized by the department; and
(b) submit the name and other identifying information, which may include fingerprints, of each covered person at the covered facility who has not been the subject of a criminal background check in accordance with Subsection (1)(a)(ii).
(3) (a) The department shall forward the information received under Subsection (2)(b) to the Criminal Investigations and Technical Services Division of the Department of Public Safety for processing to determine whether the covered individual has been convicted of any crime.
(b) Except for individuals described in Subsection (1)(b)(ii)(B), if an individual has not had residency in Utah for the last five years, the individual shall submit fingerprints for an FBI national criminal history record check. The fingerprints shall be submitted to the FBI through the Criminal Investigations and Technical Services Division. The individual or licensee is responsible for the cost of the fingerprinting and national criminal history check.
(4) The department may determine whether:
(a) an individual whose name and other identifying information has been submitted pursuant to Subsection (2) and who provides direct care to children is listed in the Licensing Information System described in Section 62A-4a-1006 or has a substantiated finding by a court of a severe type of child abuse or neglect under Section 78-3a-320, if identification as a possible perpetrator of child abuse or neglect is relevant to the employment activities of that individual;
(b) an individual whose name and other identifying information has been submitted pursuant to Subsection (2) and who provides direct care to disabled or elder adults, or who is residing in a residential home that is a facility licensed to provide direct care to disabled or elder adults has a substantiated finding of abuse, neglect, or exploitation of a disabled or elder adult by accessing in accordance with Subsection (5) the database created in Section 62A-3-311.1 if identification as a possible perpetrator of disabled or elder adult abuse, neglect, or exploitation is relevant to the employment activities or residence of that person; or
(c) an individual whose name or other identifying information has been submitted pursuant to Subsection (2) has been adjudicated in a juvenile court of committing an act which if committed by an adult would be a felony or a misdemeanor if:
(i) the individual is under the age of 28 years; or
(ii) the individual is over the age of 28 and has been convicted, has pleaded no contest, or is currently subject to a plea in abeyance or diversion agreement for any felony or misdemeanor.
(5) (a) The department shall:
(i) designate two persons within the department to access:
(A) the Licensing Information System described in Section 62A-4a-1006;
(B) court records under Subsection 78-3a-320(6);
(C) the database described in Subsection (4)(b); and
(D) juvenile court records as permitted by Subsection (4)(c); and
(ii) adopt measures to:
(A) protect the security of the Licensing Information System, the court records, and the database; and
(B) strictly limit access to the Licensing Information System, the court records, and the database to those designated under Subsection (5)(a)(i).
(b) Those designated under Subsection (5)(a)(i) shall receive training from the Department of Human Services with respect to:
(i) accessing the Licensing Information System, the court records, and the database;
(ii) maintaining strict security; and
(iii) the criminal provisions in Section 62A-4a-412 for the improper release of information.
(c) Those designated under Subsection (5)(a)(i):
(i) are the only ones in the department with the authority to access the Licensing Information System, the court records, and database; and
(ii) may only access the Licensing Information System, the court records, and the database for the purpose of licensing and in accordance with the provisions of Subsection (4).
(6) Within ten days of initially hiring a covered individual, a covered health care facility shall submit the covered individual's information to the department in accordance with Subsection (2).
(7) The department shall adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under which a person who has been convicted of a criminal offense, or a person described in Subsection (4), may provide direct care to a patient in a covered health care facility, taking into account the nature of the criminal conviction or substantiated finding and its relation to patient care.
(8) The department may, in accordance with Section 26-1-6, assess reasonable fees for a criminal background check processed pursuant to this section.
(9) The department may inform the covered health care facility of information discovered under Subsection (4) with respect to a covered individual.
(10) A covered health care facility is not civilly liable for submitting information to the department as required by this section.
Section 311. Section 26-21-23 is amended to read:
26-21-23
. Licensing of non-Medicaid nursing care facility beds.(1) Notwithstanding the provisions of Section 26-21-2, for purposes of this section "nursing care facility" and "small health care facility":
(a) mean the following facilities licensed by the department under this chapter:
(i) skilled nursing homes;
(ii) intermediate care facilities; or
(iii) small health care facilities with four to sixteen beds functioning as a skilled nursing home; and
(b) does not mean:
(i) an intermediate care facility for the mentally retarded;
(ii) a critical access hospital that meets the criteria of 42 U.S.C. 1395i-4(c)(2) (1998);
(iii) a small health care facility which is hospital based; or
(iv) a small health care facility other than a skilled nursing home with 16 beds or less.
(2) Except as provided in Subsection (5), a new nursing care facility shall be approved for a health facility license only if the applicant proves to the division that:
(a) the facility will be Medicaid certified under the provisions of Section 26-18-503;
(b) the facility will have at least 120 beds; or
(c) (i) the facility's projected Medicare inpatient revenues do not exceed 49% of the facility's revenues;
(ii) the facility has identified projected non-Medicare inpatient revenue sources; and
(iii) the non-Medicare inpatient revenue sources identified in this Subsection (2)(c)(iii) will constitute at least 51% of the revenues as demonstrated through an independently certified feasibility study submitted and paid for by the facility and provided to the division.
(3) The division may not approve the addition of licensed beds in an existing nursing care facility unless the nursing care facility satisfies the criteria established in Subsection (2).
(4) The department may make rules to administer and enforce this part in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(5) The provisions of Subsection (2) do not apply to a nursing care facility that has:
(a) filed an application with the department and paid all applicable fees to the department on or before February 28, 2007; and
(b) submitted to the department the working drawings, as defined by the department by administrative rule, on or before July 1, 2008.
Section 312. Section 26-21a-203 is amended to read:
26-21a-203
. Department rulemaking authority.The department shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(1) establishing quality assurance standards for all facilities performing screening or diagnostic mammography and developing mammogram x-ray films, including procedures for clinical follow-up of abnormal mammograms; and
(2) providing for:
(a) collection and periodic reporting of mammography examinations and clinical follow-up data to the department;
(b) certification and revocation of certification of mammogram facilities;
(c) inspection of mammogram facilities, including entry of agents of the department into the facilities for inspections;
(d) setting fees for certification; and
(e) an appeal process regarding department certification decisions.
Section 313. Section 26-21a-205 is amended to read:
26-21a-205
. Department duties.The department shall:
(1) enforce rules established under this part;
(2) authorize qualified department agents to conduct inspections of mammogram facilities under department rules;
(3) collect and credit fees for certification under Section [63-38-3.2] 63J-1-303; and
(4) provide necessary administrative and staff support to the committee.
Section 314. Section 26-23-2 is amended to read:
26-23-2
. Administrative review of actions of department or director.Any person aggrieved by any action or inaction of the department or its executive director may request an adjudicative proceeding by following the procedures and requirements of [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act.
Section 315. Section 26-23b-110 is amended to read:
26-23b-110
. Information sharing with public safety authorities.(1) For purposes of this section, "public safety authority" means a local, state, or federal law enforcement authority including the Division of Homeland Security, emergency medical services personnel, and firefighters.
(2) Notwithstanding the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act:
(a) whenever a public safety authority suspects a case of a reportable illness or condition under the provisions of this chapter, it shall immediately notify the department;
(b) whenever the department learns of a case of a reportable illness or condition under this chapter that it reasonably believes has the potential to be caused by one of the factors listed in Subsection 26-23b-103(1), it shall immediately notify the appropriate public safety authority; and
(c) sharing of information reportable under the provisions of this chapter between persons authorized by this chapter shall be limited to information necessary for the treatment, control, investigation, and prevention of a public health emergency.
(3) Except to the extent inconsistent with this chapter, Sections 26-6-27 and 26-6-28 apply to this chapter.
Section 316. Section 26-25-2 is amended to read:
26-25-2
. Restrictions on use of data.(1) The information described in Subsection 26-25-1(1) that is provided to the entities described in Subsection 26-25-1(2) shall:
(a) be used and disclosed by the entities described in Subsection 26-25-1(2) in accordance with this chapter; and
(b) is not subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) The Division of Substance Abuse and Mental Health within the Department of Human Services, scientific and health care research organizations affiliated with institutions of higher education, the Utah Medical Association or any of its allied medical societies, peer review committees, professional review organizations, professional societies and associations, or any health facility's in-house staff committee may only use or publish the information or material received or gathered under Section 26-25-1 for the purpose of study and advancing medical research or medical education in the interest of reducing the incidence of disease, morbidity, or mortality, except that a summary of studies conducted in accordance with Section 26-25-1 may be released by those groups for general publication.
Section 317. Section 26-33a-104 is amended to read:
26-33a-104
. Purpose, powers, and duties of the committee.(1) The purpose of the committee is to direct a statewide effort to collect, analyze, and distribute health care data to facilitate the promotion and accessibility of quality and cost-effective health care and also to facilitate interaction among those with concern for health care issues.
(2) The committee shall:
(a) develop and adopt by rule, following public hearing and comment, a health data plan that shall among its elements:
(i) identify the key health care issues, questions, and problems amenable to resolution or improvement through better data, more extensive or careful analysis, or improved dissemination of health data;
(ii) document existing health data activities in the state to collect, organize, or make available types of data pertinent to the needs identified in Subsection (2)(a)(i);
(iii) describe and prioritize the actions suitable for the committee to take in response to the needs identified in Subsection (2)(a)(i) in order to obtain or to facilitate the obtaining of needed data, and to encourage improvements in existing data collection, interpretation, and reporting activities, and indicate how those actions relate to the activities identified under Subsection (2)(a)(ii);
(iv) detail the types of data needed for the committee's work, the intended data suppliers, and the form in which such data are to be supplied, noting the consideration given to the potential alternative sources and forms of such data and to the estimated cost to the individual suppliers as well as to the department of acquiring these data in the proposed manner; the plan shall reasonably demonstrate that the committee has attempted to maximize cost-effectiveness in the data acquisition approaches selected;
(v) describe the types and methods of validation to be performed to assure data validity and reliability;
(vi) explain the intended uses of and expected benefits to be derived from the data specified in Subsection (2)(a)(iv), including the contemplated tabulation formats and analysis methods; the benefits described must demonstrably relate to one or more of the following: promoting quality health care, managing health care costs, or improving access to health care services;
(vii) describe the expected processes for interpretation and analysis of the data flowing to the committee; noting specifically the types of expertise and participation to be sought in those processes; and
(viii) describe the types of reports to be made available by the committee and the intended audiences and uses;
(b) have the authority to collect, validate, analyze, and present health data in accordance with the plan while protecting individual privacy through the use of a control number as the health data identifier;
(c) evaluate existing identification coding methods and, if necessary, require by rule that health data suppliers use a uniform system for identification of patients, health care facilities, and health care providers on health data they submit under this chapter;
(d) report biennially to the governor and the Legislature on how the committee is meeting its responsibilities under this chapter; and
(e) advise, consult, contract, and cooperate with any corporation, association, or other entity for the collection, analysis, processing, or reporting of health data identified by control number only in accordance with the plan.
(3) The committee may adopt rules to carry out the provisions of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) Except for data collection, analysis, and validation functions described in this section, nothing in this chapter shall be construed to authorize or permit the committee to perform regulatory functions which are delegated by law to other agencies of the state or federal governments or to perform quality assurance or medical record audit functions that health care facilities, health care providers, or third party payors are required to conduct to comply with federal or state law. The committee shall not recommend or determine whether a health care provider, health care facility, third party payor, or self-funded employer is in compliance with federal or state laws including but not limited to federal or state licensure, insurance, reimbursement, tax, malpractice, or quality assurance statutes or common law.
(5) Nothing in this chapter shall be construed to require a data supplier to supply health data identifying a patient by name or describing detail on a patient beyond that needed to achieve the approved purposes included in the plan.
(6) No request for health data shall be made of health care providers and other data suppliers until a plan for the use of such health data has been adopted.
(7) If a proposed request for health data imposes unreasonable costs on a data supplier, due consideration shall be given by the committee to altering the request. If the request is not altered, the committee shall pay the costs incurred by the data supplier associated with satisfying the request that are demonstrated by the data supplier to be unreasonable.
(8) After a plan is adopted as provided in Section 26-33a-106.1, the committee may require any data supplier to submit fee schedules, maximum allowable costs, area prevailing costs, terms of contracts, discounts, fixed reimbursement arrangements, capitations, or other specific arrangements for reimbursement to a health care provider.
(9) The committee shall not publish any health data collected under Subsection (8) which would disclose specific terms of contracts, discounts, or fixed reimbursement arrangements, or other specific reimbursement arrangements between an individual provider and a specific payer.
(10) Nothing in Subsection (8) shall prevent the committee from requiring the submission of health data on the reimbursements actually made to health care providers from any source of payment, including consumers.
Section 318. Section 26-35a-106 is amended to read:
26-35a-106
. Restricted account -- Creation -- Deposits.(1) (a) There is created a restricted account in the General Fund known as the "Nursing Care Facilities Account" consisting of:
(i) proceeds from the assessment imposed by Section 26-35a-104 which shall be deposited in the restricted account to be used for the purpose described in Subsection (1)(b);
(ii) money appropriated or otherwise made available by the Legislature; and
(iii) any interest earned on the account.
(b) (i) Money in the account shall only be used:
(A) to the extent authorized by federal law, to obtain federal financial participation in the Medicaid program; and
(B) in the manner described in Subsection (1)(b)(ii).
(ii) The money appropriated from the restricted account to the department:
(A) shall be used only to increase the rates paid prior to the effective date of this act to nursing care facilities for providing services pursuant to the Medicaid program and for administrative expenses as described in Subsection (1)(b)(ii)(C);
(B) may not be used to replace existing state expenditures paid to nursing care facilities for providing services pursuant to the Medicaid program; and
(C) may be used for administrative expenses for implementation of this act, if the administrative expenses for the fiscal year do not exceed 3% of the money deposited into the restricted account during the fiscal year.
(2) Money shall be appropriated from the restricted account to the department for the purposes described in Subsection (1)(b) in accordance with [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
Section 319. Section 26-38-9 is amended to read:
26-38-9
. Enforcement of chapter.(1) The state Department of Health and local health departments shall:
(a) enforce this chapter and shall coordinate their efforts to promote the most effective enforcement of this chapter; and
(b) impose the penalties under Subsection 26-38-8 in accordance with this section.
(2) When enforcing this chapter, the state Department of Health and the local health departments shall notify persons of alleged violations of this chapter, conduct hearings, and impose penalties in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) Civil penalties collected under this section by:
(a) a local health department shall be paid to the treasurer of the county in which the violation was committed; and
(b) the state Department of Health shall be deposited in the General Fund.
Section 320. Section 26-39-108 is amended to read:
26-39-108
. License violations -- Penalties.(1) The department may deny or revoke a license and otherwise invoke disciplinary penalties if it finds:
(a) evidence of committing or of aiding, abetting, or permitting the commission of any illegal act on the premises of the child care facility;
(b) a failure to meet the qualifications for licensure; or
(c) conduct adverse to the public health, morals, welfare, and safety of children under its care.
(2) The department may also place a department representative as a monitor in a facility, and may assess the cost of that monitoring to the facility, until the licensee has remedied the deficiencies that brought about the department action.
(3) The department may impose civil monetary penalties in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if there has been a failure to comply with the provisions of this chapter, or rules promulgated pursuant to this chapter, as follows:
(a) if significant problems exist that are likely to lead to the harm of a child, the department may impose a civil penalty of $50 to $1,000 per day; and
(b) if significant problems exist that result in actual harm to a child, the department may impose a civil penalty of $1,050 to $5,000 per day.
Section 321. Section 26-39-109 is amended to read:
26-39-109
. Investigations -- Records.(1) The department may conduct investigations necessary to enforce the provisions of this chapter.
(2) For purposes of this section:
(a) "Anonymous complainant" means a complainant for whom the department does not have the minimum personal identifying information necessary, including the complainant's full name, to attempt to communicate with the complainant after a complaint has been made.
(b) "Confidential complainant" means a complainant for whom the department has the minimum personal identifying information necessary, including the complainant's full name, to attempt to communicate with the complainant after a complaint has been made, but who elects under Subsection (3)(c) not to be identified to the subject of the complaint.
(c) "Subject of the complaint" means the licensee or certificate holder about whom the complainant is informing the department.
(3) (a) If the department receives a complaint about a child care program or residential child care, the department shall:
(i) solicit information from the complainant to determine whether the complaint suggests actions or conditions which could pose a serious risk to the safety or well-being of a child;
(ii) as necessary:
(A) encourage the complainant to disclose the minimum personal identifying information necessary, including the complainant's full name, for the department to attempt to subsequently communicate with the complainant;
(B) inform the complainant that the department may not investigate an anonymous complaint;
(C) inform the complainant that the identity of a confidential complainant may be withheld from the subject of a complaint only as provided in Subsection (3)(c)(ii); and
(D) inform the complainant that the department may be limited in its use of information provided by a confidential complainant, as provided in Subsection (3)(c)(ii)(B); and
(iii) inform the complainant that a person is guilty of a class B misdemeanor under Section 76-8-506 if the person gives false information to the department with a purpose of inducing a change in that person's or another person's licensing or certification status.
(b) If the complainant elects to be an anonymous complainant, or if the complaint concerns events which occurred more than six weeks before the complainant contacted the department:
(i) shall refer the information in the complaint to the Division of Child and Family Services within the Department of Human Services, law enforcement, or any other appropriate agency, if the complaint suggests actions or conditions which could pose a serious risk to the safety or well-being of a child;
(ii) may not investigate or substantiate the complaint; and
(iii) may, during a regularly scheduled annual survey, inform the licensee or certificate holder who is the subject of the complaint of allegations or concerns raised by:
(A) the anonymous complainant; or
(B) the complainant who reported events more than six weeks after the events occurred.
(c) (i) If the complainant elects to be a confidential complainant, the department shall determine whether the complainant wishes to remain confidential:
(A) only until the investigation of the complaint has been completed; or
(B) indefinitely.
(ii) (A) If the complainant elects to remain confidential only until the investigation of the complaint has been completed, the department shall disclose the name of the complainant to the subject of the complaint at the completion of the investigation, but no sooner.
(B) If the complainant elects to remain confidential indefinitely, the department:
(I) notwithstanding Subsection [63-2-201] 63G-2-201(5)(b), may not disclose the name of the complainant, including to the subject of the complaint; and
(II) may not use information provided by the complainant to substantiate an alleged violation of state law or department rule unless the department independently corroborates the information.
(4) (a) Prior to conducting an investigation of a child care program or residential child care in response to a complaint, a department investigator shall review the complaint with the investigator's supervisor.
(b) The investigator may proceed with the investigation only if:
(i) the supervisor determines the complaint is credible;
(ii) the complaint is not from an anonymous complainant; and
(iii) prior to the investigation, the investigator informs the subject of the complaint of:
(A) except as provided in Subsection (3)(c), the name of the complainant; and
(B) except as provided in Subsection (4)(c), the substance of the complaint.
(c) An investigator is not required to inform the subject of a complaint of the substance of the complaint prior to an investigation if doing so would jeopardize the investigation. However, the investigator shall inform the subject of the complaint of the substance of the complaint as soon as doing so will no longer jeopardize the investigation.
(5) If the department is unable to substantiate a complaint, any record related to the complaint or the investigation of the complaint:
(a) shall be classified under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, as:
(i) a private or controlled record if appropriate under Section [63-2-302] 63G-2-302 or [63-2-303] 63G-2-304; or
(ii) a protected record under Section [63-2-304] 63G-2-305; and
(b) if disclosed in accordance with Subsection [63-2-201] 63G-2-201(5)(b), may not identify an individual child care program, licensee, certificate holder, or complainant.
(6) Any record of the department related to a complaint by an anonymous complainant is a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and, notwithstanding Subsection [63-2-201] 63G-2-201(5)(b), may not be disclosed in a manner that identifies an individual child care program, licensee, certificate holder, or complainant.
Section 322. Section 26-40-103 is amended to read:
26-40-103
. Creation and administration of the Utah Children's Health Insurance Program.(1) There is created the Utah Children's Health Insurance Program to be administered by the department in accordance with the provisions of:
(a) this chapter; and
(b) the State Children's Health Insurance Program, 42 U.S.C. Sec. 1397aa et seq.
(2) The department shall:
(a) prepare and submit the state's children's health insurance plan before May 1, 1998, and any amendments to the federal Department of Health and Human Services in accordance with 42 U.S.C. Sec. 1397ff; and
(b) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act regarding:
(i) eligibility requirements consistent with Subsection 26-18-3(6);
(ii) program benefits;
(iii) the level of coverage for each program benefit;
(iv) cost-sharing requirements for enrollees, which may not:
(A) exceed the guidelines set forth in 42 U.S.C. Sec. 1397ee; or
(B) impose deductible, copayment, or coinsurance requirements on an enrollee for well-child, well-baby, and immunizations; and
(v) the administration of the program.
Section 323. Section 26-40-110 is amended to read:
26-40-110
. Managed care -- Contracting for services.(1) Services provided to enrollees under the program shall be delivered in a managed care system if services are available within 30 paved road miles of where the enrollee lives or resides. Otherwise, the program may provide services to enrollees through fee for service plans.
(2) Before awarding a contract to a managed care system or fee for service plan to provide services under Subsection (1) or determining that no bid or proposal received in response to such a request is acceptable, the executive director shall report that information to and seek recommendations from the Health Advisory Council created in Section 26-1-7.5.
(3) If after seeking the recommendation of the Health Advisory Council under Subsection (2), the executive director determines that no bid or proposal received in response to such a request is acceptable or if no bid or proposal has been received in response to such a request, the department may contract with the Group Insurance Division within the Utah State Retirement Office to provide services under Subsection (1).
(4) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, shall apply to this section.
Section 324. Section 26-41-104 is amended to read:
26-41-104
. Training in use of epinephrine auto-injector.(1) Each primary and secondary school in the state, both public and private, may designate one or more school personnel who volunteers to receive initial and annual refresher training from the school nurse or other qualified person designated by the school district physician, the medical director of the local health department, or the local emergency medical services director regarding the storage and emergency use of an epinephrine auto-injector.
(2) A person who provides training under Subsection (1) or (6) shall include in the training:
(a) techniques for recognizing symptoms of anaphylaxis;
(b) standards and procedures for the storage and emergency use of epinephrine auto-injectors;
(c) emergency follow-up procedures, including calling the emergency 911 number and contacting, if possible, the student's parent and physician; and
(d) written materials covering the information required under this Subsection (2).
(3) A designated person shall retain for reference the written materials prepared in accordance with Subsection (2)(d).
(4) A public school shall permit a student to possess an epinephrine auto-injector or possess and self-administer an epinephrine auto-injector if:
(a) the student's parent or guardian signs a statement:
(i) authorizing the student to possess or possess and self-administer an epinephrine auto-injector; and
(ii) acknowledging that the student is responsible for, and capable of, possessing or possessing and self-administering an epinephrine auto-injector; and
(b) the student's health care provider provides a written statement that states that it is medically appropriate for the student to possess or possess and self-administer an epinephrine auto-injector and the student should be in possession of the epinephrine auto-injector at all times.
(5) The Utah Department of Health, in cooperation with the state superintendent of public instruction, shall design forms to be used by public schools for the parental and health care providers statements described in Subsection (6).
(6) (a) The department:
(i) shall approve educational programs conducted by other persons, to train people under Subsection (6)(b) of this section, regarding the use and storage of emergency epinephrine auto-injectors; and
(ii) may, as funding is available, conduct educational programs to train people regarding the use of and storage of emergency epinephrine auto-injectors.
(b) A person designated to receive training to administer an epinephrine auto-injector under the provisions of this Subsection (6) must demonstrate a need for the training to the department, which may be based upon occupational, volunteer, or family circumstances, and shall include:
(i) camp counselors;
(ii) scout leaders;
(iii) forest rangers;
(iv) tour guides; and
(v) other persons who have or reasonably expect to have responsibility for at least one other person as a result of the person's occupational or volunteer status.
(7) The department shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(a) establish and approve training programs in accordance with this section; and
(b) establish a procedure for determining the need for training under Subsection (6)(b)(v).
Section 325. Section 26-42-104 is amended to read:
26-42-104
. Enforcement by state and local health departments.The state Department of Health and the local health departments shall enforce this chapter under the procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, as an informal adjudicative proceeding, including:
(1) notifying licensees of alleged violations of Section 26-42-103;
(2) conducting hearings;
(3) determining violations of this chapter; and
(4) imposing civil monetary administrative penalties.
Section 326. Section 26-43-103 is amended to read:
26-43-103
. Disclosure of information.Information obtained by the department under this chapter is a public record and may be disclosed in accordance with Section [63-2-201] 63G-2-201 and disseminated generally by the department.
Section 327. Section 26-46-102 is amended to read:
26-46-102
. Creation of program -- Duties of department.(1) There is created within the department the Utah Health Care Workforce Financial Assistance Program to provide professional education scholarships and loan repayment assistance to health care professionals who locate or continue to practice in underserved areas.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules governing the administration of the program, including rules that address:
(a) application procedures;
(b) eligibility criteria;
(c) selection criteria;
(d) service conditions, which at a minimum shall include professional service in an underserved area for a minimum period of time by any person receiving a scholarship or loan repayment assistance;
(e) penalties for failure to comply with service conditions or other terms of a scholarship or loan repayment contract;
(f) criteria for modifying or waiving service conditions or penalties in case of extreme hardship or other good cause; and
(g) administration of contracts entered into before the effective date of this act, between the department and scholarship or loan repayment recipients under Title 26, Chapter 9, Part 2, Physicians and Physician Assistants Grant and Scholarship Program, Title 26, Chapter 9d, Nurse Education Financial Assistance, or Title 26, Chapter 9e, Special Population Health Care Provider Financial Assistance and Retention Act.
(3) The department shall seek and consider the recommendations of the Utah Health Care Workforce Financial Assistance Program Advisory Committee created under Section 26-46-103 as it develops and modifies rules to administer the program.
(4) Funding for the program shall be a line item within the appropriations act, shall be nonlapsing unless designated otherwise, and may be used to cover administrative costs of the program, including reimbursement expenses of the Utah Health Care Workforce Financial Assistance Program Advisory Committee created under Section 26-46-103.
(5) Loan repayments and payments resulting from breach of contract are dedicated credits to the program.
(6) The department shall prepare an annual report on the revenues, expenditures, and outcomes of the program.
Section 328. Section 26-47-103 is amended to read:
26-47-103
. Department to award grants for assistance to persons with bleeding disorders.(1) For purposes of this section:
(a) "Hemophilia services" means a program for medical care, including the costs of blood transfusions, and the use of blood derivatives and blood clotting factors.
(b) "Person with a bleeding disorder" means a person:
(i) who is medically diagnosed with hemophilia or a bleeding disorder;
(ii) who is not eligible for Medicaid or the Children's Health Insurance Program; and
(iii) who has either:
(A) insurance coverage that excludes coverage for hemophilia services;
(B) exceeded his insurance plan's annual maximum benefits;
(C) exceeded his annual or lifetime maximum benefits payable under Title 31A, Chapter 29, Comprehensive Health Insurance Pool Act; or
(D) insurance coverage available under either private health insurance, Title 31A, Chapter 29, Comprehensive Health Insurance Pool Act, Utah mini COBRA coverage under Section 31A-22-722, or federal COBRA coverage, but the premiums for that coverage are greater than a percentage of the person's annual adjusted gross income as established by the department by administrative rule.
(2) (a) Within appropriations specified by the Legislature for this purpose, the department shall make grants to public and nonprofit entities who assist persons with bleeding disorders with the cost of obtaining hemophilia services or the cost of insurance premiums for coverage of hemophilia services.
(b) Applicants for grants under this section:
(i) must be submitted to the department in writing; and
(ii) must comply with Subsection (3).
(3) Applications for grants under this section shall include:
(a) a statement of specific, measurable objectives, and the methods to be used to assess the achievement of those objectives;
(b) a description of the personnel responsible for carrying out the activities of the grant along with a statement justifying the use of any grant funds for the personnel;
(c) letters and other forms of evidence showing that efforts have been made to secure financial and professional assistance and support for the services to be provided under the grant;
(d) a list of services to be provided by the applicant;
(e) the schedule of fees to be charged by the applicant; and
(f) other provisions as determined by the department.
(4) The department may accept grants, gifts, and donations of money or property for use by the grant program.
(5) (a) The department shall establish rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing the application form, process, and criteria it will use in awarding grants under this section.
(b) The department shall report to the Health and Human Services Interim Committee and to the Legislative Executive Appropriations Committee by November 1, 2006, and every year thereafter on the implementation of the grant program.
Section 329. Section 26-48-102 is amended to read:
26-48-102
. Cat and Dog Community Spay and Neuter Program Restricted Account -- Interest -- Use of contributions and interest.(1) There is created within the General Fund the Cat and Dog Community Spay and Neuter Program Restricted Account.
(2) The account shall be funded by contributions deposited into the Cat and Dog Community Spay and Neuter Program Restricted Account in accordance with Section 59-10-550.2.
(3) (a) The Cat and Dog Community Spay and Neuter Program Restricted Account shall earn interest.
(b) Interest earned on the Cat and Dog Community Spay and Neuter Program Restricted Account shall be deposited into the Cat and Dog Community Spay and Neuter Program Restricted Account.
(4) The department shall distribute contributions and interest deposited into the Cat and Dog Community Spay and Neuter Program Restricted Account to one or more organizations that:
(a) are exempt from federal income taxation under Section 501(c)(3), Internal Revenue Code;
(b) operate a mobile spay and neuter clinic for cats and dogs;
(c) provide annual spay and neuter services at the mobile spay and neuter clinic described in Subsection (4)(b):
(i) to one or more communities in at least 20 counties in the state; and
(ii) by veterinarians who are licensed by Title 58, Chapter 28, Veterinary Practice Act; and
(d) (i) spay and neuter cats and dogs owned by persons having low incomes; and
(ii) have established written guidelines for determining what constitutes a person having a low income in accordance with any rules made by the department as authorized by Subsection (5)(c).
(5) (a) An organization described in Subsection (4) may apply to the department to receive a distribution in accordance with Subsection (4).
(b) An organization that receives a distribution from the department in accordance with Subsection (4):
(i) shall expend the distribution only to spay or neuter dogs and cats:
(A) owned by persons having low incomes;
(B) by veterinarians who are licensed by Title 58, Chapter 28, Veterinary Practice Act;
(C) through a statewide voucher program; and
(D) at a location that:
(I) is not a mobile spay and neuter clinic; and
(II) does not receive any funding from a governmental entity; and
(ii) may not expend the distribution for any administrative cost relating to an expenditure authorized by Subsection (5)(b)(i).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules:
(i) providing procedures and requirements for an organization to apply to the department to receive a distribution in accordance with Subsection (4); and
(ii) to define what constitutes a person having a low income.
Section 330. Section 26A-1-108.7 is amended to read:
26A-1-108.7
. Procurement -- Use of recycled goods.The procurement officer or other person responsible for purchasing supplies for each local health department shall:
(1) maintain for reference a copy of the current listing of recycled items available on state contract as issued by the chief procurement officer under Section [63-56-204] 63G-6-204; and
(2) give recycled items consideration when inviting bids and purchasing supplies, in compliance with Section 11-37-101.
Section 331. Section 30-2-11 is amended to read:
30-2-11
. Action for consortium due to personal injury.(1) For purposes of this section:
(a) "injury" or "injured" means a significant permanent injury to a person that substantially changes that person's lifestyle and includes the following:
(i) a partial or complete paralysis of one or more of the extremities;
(ii) significant disfigurement; or
(iii) incapability of the person of performing the types of jobs the person performed before the injury; and
(b) "spouse" means the legal relationship:
(i) established between a man and a woman as recognized by the laws of this state; and
(ii) existing at the time of the person's injury.
(2) The spouse of a person injured by a third party on or after May 4, 1997, may maintain an action against the third party to recover for loss of consortium.
(3) A claim for loss of consortium begins on the date of injury to the spouse. The statute of limitations applicable to the injured person shall also apply to the spouse's claim of loss of consortium.
(4) A claim for the spouse's loss of consortium shall be:
(a) made at the time the claim of the injured person is made and joinder of actions shall be compulsory; and
(b) subject to the same defenses, limitations, immunities, and provisions applicable to the claims of the injured person.
(5) The spouse's action for loss of consortium:
(a) shall be derivative from the cause of action existing in behalf of the injured person; and
(b) may not exist in cases where the injured person would not have a cause of action.
(6) Fault of the spouse of the injured person, as well as fault of the injured person, shall be compared with the fault of all other parties, pursuant to Sections 78-27-37 through 78-27-43, for purposes of reducing or barring any recovery by the spouse for loss of consortium.
(7) Damages awarded for loss of consortium, when combined with any award to the injured person for general damages, may not exceed any applicable statutory limit on noneconomic damages, including Section 78-14-7.1.
(8) Damages awarded for loss of consortium which a governmental entity is required to pay, when combined with any award to the injured person which a governmental entity is required to pay, may not exceed the liability limit for one person in any one occurrence under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 332. Section 30-3-11.3 is amended to read:
30-3-11.3
. Mandatory educational course for divorcing parents -- Purpose -- Curriculum -- Exceptions.(1) There is established a mandatory course for divorcing parents as a pilot program in the third and fourth judicial districts to be administered by the Administrative Office of the Courts from July 1, 1992, to June 30, 1994. On July 1, 1994, an approved course shall be implemented in all judicial districts. The mandatory course is designed to educate and sensitize divorcing parties to their children's needs both during and after the divorce process.
(2) The Judicial Council shall adopt rules to implement and administer this program.
(3) As a prerequisite to receiving a divorce decree, both parties are required to attend a mandatory course on their children's needs after filing a complaint for divorce and receiving a docket number, unless waived under Section 30-3-4. If that requirement is waived, the court may permit the divorce action to proceed.
(4) The court may require unmarried parents to attend this educational course when those parents are involved in a visitation or custody proceeding before the court.
(5) The mandatory course shall instruct both parties about divorce and its impacts on:
(a) their child or children;
(b) their family relationship;
(c) their financial responsibilities for their child or children; and
(d) that domestic violence has a harmful effect on children and family relationships.
(6) The Administrative Office of the Courts shall administer the course pursuant to [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, through private or public contracts and organize the program in each of Utah's judicial districts. The contracts shall provide for the recoupment of administrative expenses through the costs charged to individual parties, pursuant to Subsection (8).
(7) A certificate of completion constitutes evidence to the court of course completion by the parties.
(8) (a) Each party shall pay the costs of the course to the independent contractor providing the course at the time and place of the course. A fee of $8 shall be collected, as part of the course fee paid by each participant, and deposited in the Children's Legal Defense Account, described in Section [63-63a-8] 51-9-408.
(b) Each party who is unable to pay the costs of the course may attend the course without payment upon a prima facie showing of impecuniosity as evidenced by an affidavit of impecuniosity filed in the district court. In those situations, the independent contractor shall be reimbursed for its costs from the appropriation to the Administrative Office of the Courts for "Mandatory Educational Course for Divorcing Parents Program." Before a decree of divorce may be entered, the court shall make a final review and determination of impecuniosity and may order the payment of the costs if so determined.
(9) Appropriations from the General Fund to the Administrative Office of the Courts for the "Mandatory Educational Course for Divorcing Parents Program" shall be used to pay the costs of an indigent parent who makes a showing as provided in Subsection (8)(b).
(10) The Administrative Office of the Courts shall adopt a program to evaluate the effectiveness of the mandatory educational course. Progress reports shall be provided annually to the Judiciary Interim Committee.
Section 333. Section 30-3-11.4 is amended to read:
30-3-11.4
. Mandatory orientation course for divorcing parties -- Purpose -- Curriculum -- Exceptions.(1) There is established a mandatory divorce orientation course for all parties with minor children who file a petition for temporary separation or for a divorce. A couple with no minor children are not required, but may choose to attend the course. The purpose of the course shall be to educate parties about the divorce process and reasonable alternatives.
(2) A petitioner shall attend a divorce orientation course no more than 60 days after filing a petition for divorce.
(3) The respondent shall attend the divorce orientation course no more than 30 days after being served with a petition for divorce.
(4) The clerk of the court shall provide notice to a petitioner of the requirement for the course, and information regarding the course shall be included with the petition or motion, when served on the respondent.
(5) The divorce orientation course shall be neutral, unbiased, at least one hour in duration, and include:
(a) options available as alternatives to divorce;
(b) resources available from courts and administrative agencies for resolving custody and support issues without filing for divorce;
(c) resources available to improve or strengthen the marriage;
(d) a discussion of the positive and negative consequences of divorce;
(e) a discussion of the process of divorce;
(f) options available for proceeding with a divorce, including:
(i) mediation;
(ii) collaborative law; and
(iii) litigation; and
(g) a discussion of post-divorce resources.
(6) The course may be provided in conjunction with the mandatory course for divorcing parents required by Section 30-3-11.3.
(7) The Administrative Office of the Courts shall administer the course pursuant to [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, through private or public contracts.
(8) Each participant shall pay the costs of the course, which may not exceed $20, to the independent contractor providing the course at the time and place of the course.
(a) A fee of $5 shall be collected, as part of the course fee paid by each participant, and deposited in the Children's Legal Defense Account described in Section [63-63a-8] 51-9-408.
(b) A participant who is unable to pay the costs of the course may attend without payment and request an Affidavit of Impecuniosity from the provider to be filed with the petition or motion. The provider shall be reimbursed for its costs by the Administrative Office of the Courts. A petitioner who is later determined not to meet the qualifications for impecuniosity may be ordered to pay the costs of the course.
(9) Appropriations from the General Fund to the Administrative Office of the Courts for the divorce orientation course shall be used to pay the costs of an indigent petitioner who is determined to be impecunious as provided in Subsection (8)(b).
(10) The Online Court Assistance Program shall include instructions with the forms for divorce which inform the petitioner of the requirement of this section.
(11) Both parties shall attend a divorce orientation course before a divorce decree may be entered, unless waived by the court. A certificate of completion constitutes evidence to the court of course completion by the parties.
(12) It shall be an affirmative defense in all divorce actions that the divorce orientation requirement was not complied with, and the action may not continue until a party has complied.
(13) The Administrative Office of the Courts shall adopt a program to evaluate the effectiveness of the mandatory educational course. Progress reports shall be provided annually to the Judiciary Interim Committee.
Section 334. Section 30-3-38 is amended to read:
30-3-38
. Pilot Program for Expedited Parent-time Enforcement.(1) There is established an Expedited Parent-time Enforcement Pilot Program in the third judicial district to be administered by the Administrative Office of the Courts from July 1, 2003, to July 1, 2007.
(2) As used in this section:
(a) "Mediator" means a person who:
(i) is qualified to mediate parent-time disputes under criteria established by the Administrative Office of the Courts; and
(ii) agrees to follow billing guidelines established by the Administrative Office of the Courts and this section.
(b) "Services to facilitate parent-time" or "services" means services designed to assist families in resolving parent-time problems through:
(i) counseling;
(ii) supervised parent-time;
(iii) neutral drop-off and pick-up;
(iv) educational classes; and
(v) other related activities.
(3) (a) Under this pilot program, if a parent files a motion in the third district court alleging that court-ordered parent-time rights are being violated, the clerk of the court, after assigning the case to a judge, shall refer the case to the administrator of this pilot program for assignment to a mediator.
(b) Upon receipt of a case, the mediator shall:
(i) meet with the parents to address parent-time issues within 15 days of the motion being filed;
(ii) assess the situation;
(iii) facilitate an agreement on parent-time between the parents; and
(iv) determine whether a referral to a service provider under Subsection (3)(c) is warranted.
(c) While a case is in mediation, a mediator may refer the parents to a service provider designated by the Department of Human Services for services to facilitate parent-time if:
(i) the services may be of significant benefit to the parents; or
(ii) (A) a mediated agreement between the parents is unlikely; and
(B) the services may facilitate an agreement.
(d) At any time during mediation, a mediator shall terminate mediation and transfer the case to the administrator of the pilot program for referral to the judge or court commissioner to whom the case was assigned under Subsection (3)(a) if:
(i) a written agreement between the parents is reached; or
(ii) the parents are unable to reach an agreement through mediation and:
(A) the parents have received services to facilitate parent-time;
(B) both parents object to receiving services to facilitate parent-time; or
(C) the parents are unlikely to benefit from receiving services to facilitate parent-time.
(e) Upon receiving a case from the administrator of the pilot program, a judge or court commissioner may:
(i) review the agreement of the parents and, if acceptable, sign it as an order;
(ii) order the parents to receive services to facilitate parent-time;
(iii) proceed with the case; or
(iv) take other appropriate action.
(4) (a) If a parent makes a particularized allegation of physical or sexual abuse of a child who is the subject of a parent-time order against the other parent or a member of the other parent's household to a mediator or service provider, the mediator or service provider shall immediately report that information to:
(i) the judge assigned to the case who may immediately issue orders and take other appropriate action to resolve the allegation and protect the child; and
(ii) the Division of Child and Family Services within the Department of Human Services in the manner required by Title 62A, Chapter 4a, Part 4, Child Abuse or Neglect Reporting Requirements.
(b) If an allegation under Subsection (4)(a) is made against a parent with parent-time rights or a member of that parent's household, parent-time by that parent shall, pursuant to an order of the court, be supervised until:
(i) the allegation has been resolved; or
(ii) a court orders otherwise.
(c) Notwithstanding an allegation under Subsection (4)(a), a mediator may continue to mediate parent-time problems and a service provider may continue to provide services to facilitate parent-time unless otherwise ordered by a court.
(5) (a) The Department of Human Services may contract with one or more entities in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, to provide:
(i) services to facilitate parent-time;
(ii) case management services; and
(iii) administrative services.
(b) An entity who contracts with the Department of Human Services under Subsection (5)(a) shall:
(i) be qualified to provide one or more of the services listed in Subsection (5)(a); and
(ii) agree to follow billing guidelines established by the Department of Human Services and this section.
(6) (a) Except as provided in Subsection (6)(b), the cost of mediation shall be:
(i) reduced to a sum certain;
(ii) divided equally between the parents; and
(iii) charged against each parent taking into account the ability of that parent to pay under billing guidelines adopted in accordance with this section.
(b) A judge may order a parent to pay an amount in excess of that provided for in Subsection (6)(a) if the parent:
(i) failed to participate in good faith in mediation or services to facilitate parent-time; or
(ii) made an unfounded assertion or claim of physical or sexual abuse of a child.
(c) (i) The cost of mediation and services to facilitate parent-time may be charged to parents at periodic intervals.
(ii) Mediation and services to facilitate parent-time may only be terminated on the ground of nonpayment if both parents are delinquent.
(7) If a parent fails to cooperate in good faith in mediation or services to facilitate parent-time, a court may order, in subsequent proceedings, a temporary change in custody or parent-time.
(8) (a) The Judicial Council may make rules to implement and administer the provisions of this pilot program related to mediation.
(b) The Department of Human Services may make rules to implement and administer the provisions of this pilot program related to services to facilitate parent-time.
(9) (a) The Administrative Office of the Courts shall adopt outcome measures to evaluate the effectiveness of the mediation component of this pilot program. Progress reports shall be provided to the Judiciary Interim Committee as requested by the committee. At least once during this pilot program, the Administrative Office of the Courts shall present to the committee the results of a survey that measures the effectiveness of the program in terms of increased compliance with parent-time orders and the responses of interested persons.
(b) The Department of Human Services shall adopt outcome measures to evaluate the effectiveness of the services component of this pilot program. Progress reports shall be provided to the Judiciary Interim Committee as requested by the committee.
(c) The Administrative Office of the Courts and the Department of Human Services may adopt joint outcome measures and file joint reports to satisfy the requirements of Subsections (8)(a) and (b).
(10) (a) The Department of Human Services shall, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, apply for federal funds as available.
(b) This pilot program shall be funded through funds received under Subsection (10)(a).
Section 335. Section 31A-1-103 is amended to read:
31A-1-103
. Scope and applicability of title.(1) This title does not apply to:
(a) a retainer contract made by an attorney-at-law:
(i) with an individual client; and
(ii) under which fees are based on estimates of the nature and amount of services to be provided to the specific client;
(b) a contract similar to a contract described in Subsection (1)(a) made with a group of clients involved in the same or closely related legal matters;
(c) an arrangement for providing benefits that do not exceed a limited amount of consultations, advice on simple legal matters, either alone or in combination with referral services, or the promise of fee discounts for handling other legal matters;
(d) limited legal assistance on an informal basis involving neither an express contractual obligation nor reasonable expectations, in the context of an employment, membership, educational, or similar relationship;
(e) legal assistance by employee organizations to their members in matters relating to employment; or
(f) death, accident, health, or disability benefits provided to a person by an organization or its affiliate if:
(i) the organization is tax exempt under Section 501(c)(3) of the Internal Revenue Code and has had its principal place of business in Utah for at least five years;
(ii) the person is not an employee of the organization; and
(iii) (A) substantially all the person's time in the organization is spent providing voluntary services:
(I) in furtherance of the organization's purposes;
(II) for a designated period of time; and
(III) for which no compensation, other than expenses, is paid; or
(B) the time since the service under Subsection (1)(f)(iii)(A) was completed is no more than 18 months.
(2) (a) This title restricts otherwise legitimate business activity.
(b) What this title does not prohibit is permitted unless contrary to other provisions of Utah law.
(3) Except as otherwise expressly provided, this title does not apply to:
(a) those activities of an insurer where state jurisdiction is preempted by Section 514 of the federal Employee Retirement Income Security Act of 1974, as amended;
(b) ocean marine insurance;
(c) death, accident, health, or disability benefits provided by an organization if the organization:
(i) has as its principal purpose to achieve charitable, educational, social, or religious objectives rather than to provide death, accident, health, or disability benefits;
(ii) does not incur a legal obligation to pay a specified amount; and
(iii) does not create reasonable expectations of receiving a specified amount on the part of an insured person;
(d) other business specified in rules adopted by the commissioner on a finding that:
(i) the transaction of the business in this state does not require regulation for the protection of the interests of the residents of this state; or
(ii) it would be impracticable to require compliance with this title;
(e) except as provided in Subsection (4), a transaction independently procured through negotiations under Section 31A-15-104;
(f) self-insurance;
(g) reinsurance;
(h) subject to Subsection (5), employee and labor union group or blanket insurance covering risks in this state if:
(i) the policyholder exists primarily for purposes other than to procure insurance;
(ii) the policyholder:
(A) is not a resident of this state;
(B) is not a domestic corporation; or
(C) does not have its principal office in this state;
(iii) no more than 25% of the certificate holders or insureds are residents of this state;
(iv) on request of the commissioner, the insurer files with the department a copy of the policy and a copy of each form or certificate; and
(v) (A) the insurer agrees to pay premium taxes on the Utah portion of its business, as if it were authorized to do business in this state; and
(B) the insurer provides the commissioner with the security the commissioner considers necessary for the payment of premium taxes under Title 59, Chapter 9, Taxation of Admitted Insurers;
(i) to the extent provided in Subsection (6):
(i) a manufacturer's or seller's warranty; and
(ii) a manufacturer's or seller's service contract; or
(j) except to the extent provided in Subsection (7), a public agency insurance mutual.
(4) A transaction described in Subsection (3)(e) is subject to taxation under Section 31A-3-301.
(5) (a) After a hearing, the commissioner may order an insurer of certain group or blanket contracts to transfer the Utah portion of the business otherwise exempted under Subsection (3)(h) to an authorized insurer if the contracts have been written by an unauthorized insurer.
(b) If the commissioner finds that the conditions required for the exemption of a group or blanket insurer are not satisfied or that adequate protection to residents of this state is not provided, the commissioner may require:
(i) the insurer to be authorized to do business in this state; or
(ii) that any of the insurer's transactions be subject to this title.
(6) (a) As used in Subsection (3)(i) and this Subsection (6):
(i) "manufacturer's or seller's service contract" means a service contract:
(A) made available by:
(I) a manufacturer of a product;
(II) a seller of a product; or
(III) an affiliate of a manufacturer or seller of a product;
(B) made available:
(I) on one or more specific products; or
(II) on products that are components of a system; and
(C) under which the person described in Subsection (6)(a)(i)(A) is liable for services to be provided under the service contract including, if the manufacturer's or seller's service contract designates, providing parts and labor;
(ii) "manufacturer's or seller's warranty" means the guaranty of:
(A) (I) the manufacturer of a product;
(II) a seller of a product; or
(III) an affiliate of a manufacturer or seller of a product;
(B) (I) on one or more specific products; or
(II) on products that are components of a system; and
(C) under which the person described in Subsection (6)(a)(ii)(A) is liable for services to be provided under the warranty, including, if the manufacturer's or seller's warranty designates, providing parts and labor; and
(iii) "service contract" is as defined in Section 31A-6a-101.
(b) A manufacturer's or seller's warranty may be designated as:
(i) a warranty;
(ii) a guaranty; or
(iii) a term similar to a term described in Subsection (6)(b)(i) or (ii).
(c) This title does not apply to:
(i) a manufacturer's or seller's warranty;
(ii) a manufacturer's or seller's service contract paid for with consideration that is in addition to the consideration paid for the product itself; and
(iii) a service contract that is not a manufacturer's or seller's warranty or manufacturer's or seller's service contract if:
(A) the service contract is paid for with consideration that is in addition to the consideration paid for the product itself;
(B) the service contract is for the repair or maintenance of goods;
(C) the cost of the product is equal to an amount determined in accordance with Subsection (6)(e); and
(D) the product is not a motor vehicle.
(d) This title does not apply to a manufacturer's or seller's warranty or service contract paid for with consideration that is in addition to the consideration paid for the product itself regardless of whether the manufacturer's or seller's warranty or service contract is sold:
(i) at the time of the purchase of the product; or
(ii) at a time other than the time of the purchase of the product.
(e) (i) For fiscal year 2001-02, the amount described in Subsection (6)(c)(iii)(C) shall be equal to $3,700 or less.
(ii) For each fiscal year after fiscal year 2001-02, the commissioner shall annually determine whether the amount described in Subsection (6)(c)(iii)(C) should be adjusted in accordance with changes in the Consumer Price Index published by the United States Bureau of Labor Statistics selected by the commissioner by rule, between:
(A) the Consumer Price Index for the February immediately preceding the adjustment; and
(B) the Consumer Price Index for February 2001.
(iii) If under Subsection (6)(e)(ii) the commissioner determines that an adjustment should be made, the commissioner shall make the adjustment by rule.
(7) (a) For purposes of this Subsection (7), "public agency insurance mutual" means an entity formed by two or more political subdivisions or public agencies of the state:
(i) under Title 11, Chapter 13, Interlocal Cooperation Act; and
(ii) for the purpose of providing for the political subdivisions or public agencies:
(A) subject to Subsection (7)(b), insurance coverage; or
(B) risk management.
(b) Notwithstanding Subsection (7)(a)(ii)(A), a public agency insurance mutual may not provide health insurance unless the public agency insurance mutual provides the health insurance using:
(i) a third party administrator licensed under Chapter 25, Third Party Administrators;
(ii) an admitted insurer; or
(iii) a program authorized by Title 49, Chapter 20, Public Employees' Benefit and Insurance Program Act.
(c) Except for this Subsection (7), a public agency insurance mutual is exempt from this title.
(d) A public agency insurance mutual is considered to be a governmental entity and political subdivision of the state with all of the rights, privileges, and immunities of a governmental entity or political subdivision of the state including all the rights and benefits of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 336. Section 31A-1-301 is amended to read:
31A-1-301
. Definitions.As used in this title, unless otherwise specified:
(1) (a) "Accident and health insurance" means insurance to provide protection against economic losses resulting from:
(i) a medical condition including:
(A) medical care expenses; or
(B) the risk of disability;
(ii) accident; or
(iii) sickness.
(b) "Accident and health insurance":
(i) includes a contract with disability contingencies including:
(A) an income replacement contract;
(B) a health care contract;
(C) an expense reimbursement contract;
(D) a credit accident and health contract;
(E) a continuing care contract; and
(F) a long-term care contract; and
(ii) may provide:
(A) hospital coverage;
(B) surgical coverage;
(C) medical coverage; or
(D) loss of income coverage.
(c) "Accident and health insurance" does not include workers' compensation insurance.
(2) "Actuary" is as defined by the commissioner by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) "Administrator" is defined in Subsection (157).
(4) "Adult" means a natural person who has attained the age of at least 18 years.
(5) "Affiliate" means any person who controls, is controlled by, or is under common control with, another person. A corporation is an affiliate of another corporation, regardless of ownership, if substantially the same group of natural persons manages the corporations.
(6) "Agency" means:
(a) a person other than an individual, including a sole proprietorship by which a natural person does business under an assumed name; and
(b) an insurance organization licensed or required to be licensed under Section 31A-23a-301.
(7) "Alien insurer" means an insurer domiciled outside the United States.
(8) "Amendment" means an endorsement to an insurance policy or certificate.
(9) "Annuity" means an agreement to make periodical payments for a period certain or over the lifetime of one or more natural persons if the making or continuance of all or some of the series of the payments, or the amount of the payment, is dependent upon the continuance of human life.
(10) "Application" means a document:
(a) (i) completed by an applicant to provide information about the risk to be insured; and
(ii) that contains information that is used by the insurer to evaluate risk and decide whether to:
(A) insure the risk under:
(I) the coverages as originally offered; or
(II) a modification of the coverage as originally offered; or
(B) decline to insure the risk; or
(b) used by the insurer to gather information from the applicant before issuance of an annuity contract.
(11) "Articles" or "articles of incorporation" means the original articles, special laws, charters, amendments, restated articles, articles of merger or consolidation, trust instruments, and other constitutive documents for trusts and other entities that are not corporations, and amendments to any of these.
(12) "Bail bond insurance" means a guarantee that a person will attend court when required, up to and including surrender of the person in execution of any sentence imposed under Subsection 77-20-7(1), as a condition to the release of that person from confinement.
(13) "Binder" is defined in Section 31A-21-102.
(14) "Blanket insurance policy" means a group policy covering classes of persons without individual underwriting, where the persons insured are determined by definition of the class with or without designating the persons covered.
(15) "Board," "board of trustees," or "board of directors" means the group of persons with responsibility over, or management of, a corporation, however designated.
(16) "Business entity" means a corporation, association, partnership, limited liability company, limited liability partnership, or other legal entity.
(17) "Business of insurance" is defined in Subsection (84).
(18) "Business plan" means the information required to be supplied to the commissioner under Subsections 31A-5-204(2)(i) and (j), including the information required when these subsections are applicable by reference under:
(a) Section 31A-7-201;
(b) Section 31A-8-205; or
(c) Subsection 31A-9-205(2).
(19) "Bylaws" means the rules adopted for the regulation or management of a corporation's affairs, however designated and includes comparable rules for trusts and other entities that are not corporations.
(20) "Captive insurance company" means:
(a) an insurance company:
(i) owned by another organization; and
(ii) whose exclusive purpose is to insure risks of the parent organization and affiliated companies; or
(b) in the case of groups and associations, an insurance organization:
(i) owned by the insureds; and
(ii) whose exclusive purpose is to insure risks of:
(A) member organizations;
(B) group members; and
(C) affiliates of:
(I) member organizations; or
(II) group members.
(21) "Casualty insurance" means liability insurance as defined in Subsection (96).
(22) "Certificate" means evidence of insurance given to:
(a) an insured under a group insurance policy; or
(b) a third party.
(23) "Certificate of authority" is included within the term "license."
(24) "Claim," unless the context otherwise requires, means a request or demand on an insurer for payment of benefits according to the terms of an insurance policy.
(25) "Claims-made coverage" means an insurance contract or provision limiting coverage under a policy insuring against legal liability to claims that are first made against the insured while the policy is in force.
(26) (a) "Commissioner" or "commissioner of insurance" means Utah's insurance commissioner.
(b) When appropriate, the terms listed in Subsection (26)(a) apply to the equivalent supervisory official of another jurisdiction.
(27) (a) "Continuing care insurance" means insurance that:
(i) provides board and lodging;
(ii) provides one or more of the following services:
(A) personal services;
(B) nursing services;
(C) medical services; or
(D) other health-related services; and
(iii) provides the coverage described in Subsection (27)(a)(i) under an agreement effective:
(A) for the life of the insured; or
(B) for a period in excess of one year.
(b) Insurance is continuing care insurance regardless of whether or not the board and lodging are provided at the same location as the services described in Subsection (27)(a)(ii).
(28) (a) "Control," "controlling," "controlled," or "under common control" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person. This control may be:
(i) by contract;
(ii) by common management;
(iii) through the ownership of voting securities; or
(iv) by a means other than those described in Subsections (28)(a)(i) through (iii).
(b) There is no presumption that an individual holding an official position with another person controls that person solely by reason of the position.
(c) A person having a contract or arrangement giving control is considered to have control despite the illegality or invalidity of the contract or arrangement.
(d) There is a rebuttable presumption of control in a person who directly or indirectly owns, controls, holds with the power to vote, or holds proxies to vote 10% or more of the voting securities of another person.
(29) "Controlled insurer" means a licensed insurer that is either directly or indirectly controlled by a producer.
(30) "Controlling person" means any person that directly or indirectly has the power to direct or cause to be directed, the management, control, or activities of a reinsurance intermediary.
(31) "Controlling producer" means a producer who directly or indirectly controls an insurer.
(32) (a) "Corporation" means an insurance corporation, except when referring to:
(i) a corporation doing business:
(A) as:
(I) an insurance producer;
(II) a limited line producer;
(III) a consultant;
(IV) a managing general agent;
(V) a reinsurance intermediary;
(VI) a third party administrator; or
(VII) an adjuster; and
(B) under:
(I) Chapter 23a, Insurance Marketing - Licensing Producers, Consultants, and Reinsurance Intermediaries;
(II) Chapter 25, Third Party Administrators; or
(III) Chapter 26, Insurance Adjusters; or
(ii) a noninsurer that is part of a holding company system under Chapter 16, Insurance Holding Companies.
(b) "Stock corporation" means a stock insurance corporation.
(c) "Mutual" or "mutual corporation" means a mutual insurance corporation.
(33) "Creditable coverage" has the same meaning as provided in federal regulations adopted pursuant to the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936.
(34) "Credit accident and health insurance" means insurance on a debtor to provide indemnity for payments coming due on a specific loan or other credit transaction while the debtor is disabled.
(35) (a) "Credit insurance" means insurance offered in connection with an extension of credit that is limited to partially or wholly extinguishing that credit obligation.
(b) "Credit insurance" includes:
(i) credit accident and health insurance;
(ii) credit life insurance;
(iii) credit property insurance;
(iv) credit unemployment insurance;
(v) guaranteed automobile protection insurance;
(vi) involuntary unemployment insurance;
(vii) mortgage accident and health insurance;
(viii) mortgage guaranty insurance; and
(ix) mortgage life insurance.
(36) "Credit life insurance" means insurance on the life of a debtor in connection with an extension of credit that pays a person if the debtor dies.
(37) "Credit property insurance" means insurance:
(a) offered in connection with an extension of credit; and
(b) that protects the property until the debt is paid.
(38) "Credit unemployment insurance" means insurance:
(a) offered in connection with an extension of credit; and
(b) that provides indemnity if the debtor is unemployed for payments coming due on a:
(i) specific loan; or
(ii) credit transaction.
(39) "Creditor" means a person, including an insured, having any claim, whether:
(a) matured;
(b) unmatured;
(c) liquidated;
(d) unliquidated;
(e) secured;
(f) unsecured;
(g) absolute;
(h) fixed; or
(i) contingent.
(40) (a) "Customer service representative" means a person that provides insurance services and insurance product information:
(i) for the customer service representative's:
(A) producer; or
(B) consultant employer; and
(ii) to the customer service representative's employer's:
(A) customer;
(B) client; or
(C) organization.
(b) A customer service representative may only operate within the scope of authority of the customer service representative's producer or consultant employer.
(41) "Deadline" means the final date or time:
(a) imposed by:
(i) statute;
(ii) rule; or
(iii) order; and
(b) by which a required filing or payment must be received by the department.
(42) "Deemer clause" means a provision under this title under which upon the occurrence of a condition precedent, the commissioner is deemed to have taken a specific action. If the statute so provides, the condition precedent may be the commissioner's failure to take a specific action.
(43) "Degree of relationship" means the number of steps between two persons determined by counting the generations separating one person from a common ancestor and then counting the generations to the other person.
(44) "Department" means the Insurance Department.
(45) "Director" means a member of the board of directors of a corporation.
(46) "Disability" means a physiological or psychological condition that partially or totally limits an individual's ability to:
(a) perform the duties of:
(i) that individual's occupation; or
(ii) any occupation for which the individual is reasonably suited by education, training, or experience; or
(b) perform two or more of the following basic activities of daily living:
(i) eating;
(ii) toileting;
(iii) transferring;
(iv) bathing; or
(v) dressing.
(47) "Disability income insurance" is defined in Subsection (75).
(48) "Domestic insurer" means an insurer organized under the laws of this state.
(49) "Domiciliary state" means the state in which an insurer:
(a) is incorporated;
(b) is organized; or
(c) in the case of an alien insurer, enters into the United States.
(50) (a) "Eligible employee" means:
(i) an employee who:
(A) works on a full-time basis; and
(B) has a normal work week of 30 or more hours; or
(ii) a person described in Subsection (50)(b).
(b) "Eligible employee" includes, if the individual is included under a health benefit plan of a small employer:
(i) a sole proprietor;
(ii) a partner in a partnership; or
(iii) an independent contractor.
(c) "Eligible employee" does not include, unless eligible under Subsection (50)(b):
(i) an individual who works on a temporary or substitute basis for a small employer;
(ii) an employer's spouse; or
(iii) a dependent of an employer.
(51) "Employee" means any individual employed by an employer.
(52) "Employee benefits" means one or more benefits or services provided to:
(a) employees; or
(b) dependents of employees.
(53) (a) "Employee welfare fund" means a fund:
(i) established or maintained, whether directly or through trustees, by:
(A) one or more employers;
(B) one or more labor organizations; or
(C) a combination of employers and labor organizations; and
(ii) that provides employee benefits paid or contracted to be paid, other than income from investments of the fund, by or on behalf of an employer doing business in this state or for the benefit of any person employed in this state.
(b) "Employee welfare fund" includes a plan funded or subsidized by user fees or tax revenues.
(54) "Endorsement" means a written agreement attached to a policy or certificate to modify one or more of the provisions of the policy or certificate.
(55) "Enrollment date," with respect to a health benefit plan, means the first day of coverage or, if there is a waiting period, the first day of the waiting period.
(56) (a) "Escrow" means:
(i) a real estate settlement or real estate closing conducted by a third party pursuant to the requirements of a written agreement between the parties in a real estate transaction; or
(ii) a settlement or closing involving:
(A) a mobile home;
(B) a grazing right;
(C) a water right; or
(D) other personal property authorized by the commissioner.
(b) "Escrow" includes the act of conducting a:
(i) real estate settlement; or
(ii) real estate closing.
(57) "Escrow agent" means:
(a) an insurance producer with:
(i) a title insurance line of authority; and
(ii) an escrow subline of authority; or
(b) a person defined as an escrow agent in Section 7-22-101.
(58) "Excludes" is not exhaustive and does not mean that other things are not also excluded. The items listed are representative examples for use in interpretation of this title.
(59) "Expense reimbursement insurance" means insurance:
(a) written to provide payments for expenses relating to hospital confinements resulting from illness or injury; and
(b) written:
(i) as a daily limit for a specific number of days in a hospital; and
(ii) to have a one or two day waiting period following a hospitalization.
(60) "Fidelity insurance" means insurance guaranteeing the fidelity of persons holding positions of public or private trust.
(61) (a) "Filed" means that a filing is:
(i) submitted to the department as required by and in accordance with any applicable statute, rule, or filing order;
(ii) received by the department within the time period provided in the applicable statute, rule, or filing order; and
(iii) accompanied by the appropriate fee in accordance with:
(A) Section 31A-3-103; or
(B) rule.
(b) "Filed" does not include a filing that is rejected by the department because it is not submitted in accordance with Subsection (61)(a).
(62) "Filing," when used as a noun, means an item required to be filed with the department including:
(a) a policy;
(b) a rate;
(c) a form;
(d) a document;
(e) a plan;
(f) a manual;
(g) an application;
(h) a report;
(i) a certificate;
(j) an endorsement;
(k) an actuarial certification;
(l) a licensee annual statement;
(m) a licensee renewal application; or
(n) an advertisement.
(63) "First party insurance" means an insurance policy or contract in which the insurer agrees to pay claims submitted to it by the insured for the insured's losses.
(64) "Foreign insurer" means an insurer domiciled outside of this state, including an alien insurer.
(65) (a) "Form" means one of the following prepared for general use:
(i) a policy;
(ii) a certificate;
(iii) an application; or
(iv) an outline of coverage.
(b) "Form" does not include a document specially prepared for use in an individual case.
(66) "Franchise insurance" means individual insurance policies provided through a mass marketing arrangement involving a defined class of persons related in some way other than through the purchase of insurance.
(67) "General lines of authority" include:
(a) the general lines of insurance in Subsection (68);
(b) title insurance under one of the following sublines of authority:
(i) search, including authority to act as a title marketing representative;
(ii) escrow, including authority to act as a title marketing representative;
(iii) search and escrow, including authority to act as a title marketing representative; and
(iv) title marketing representative only;
(c) surplus lines;
(d) workers' compensation; and
(e) any other line of insurance that the commissioner considers necessary to recognize in the public interest.
(68) "General lines of insurance" include:
(a) accident and health;
(b) casualty;
(c) life;
(d) personal lines;
(e) property; and
(f) variable contracts, including variable life and annuity.
(69) "Group health plan" means an employee welfare benefit plan to the extent that the plan provides medical care:
(a) (i) to employees; or
(ii) to a dependent of an employee; and
(b) (i) directly;
(ii) through insurance reimbursement; or
(iii) through any other method.
(70) (a) "Group insurance policy" means a policy covering a group of persons that is issued:
(i) to a policyholder on behalf of the group; and
(ii) for the benefit of group members who are selected under procedures defined in:
(A) the policy; or
(B) agreements which are collateral to the policy.
(b) A group insurance policy may include members of the policyholder's family or dependents.
(71) "Guaranteed automobile protection insurance" means insurance offered in connection with an extension of credit that pays the difference in amount between the insurance settlement and the balance of the loan if the insured automobile is a total loss.
(72) (a) Except as provided in Subsection (72)(b), "health benefit plan" means a policy or certificate that:
(i) provides health care insurance;
(ii) provides major medical expense insurance; or
(iii) is offered as a substitute for hospital or medical expense insurance such as:
(A) a hospital confinement indemnity; or
(B) a limited benefit plan.
(b) "Health benefit plan" does not include a policy or certificate that:
(i) provides benefits solely for:
(A) accident;
(B) dental;
(C) income replacement;
(D) long-term care;
(E) a Medicare supplement;
(F) a specified disease;
(G) vision; or
(H) a short-term limited duration; or
(ii) is offered and marketed as supplemental health insurance.
(73) "Health care" means any of the following intended for use in the diagnosis, treatment, mitigation, or prevention of a human ailment or impairment:
(a) professional services;
(b) personal services;
(c) facilities;
(d) equipment;
(e) devices;
(f) supplies; or
(g) medicine.
(74) (a) "Health care insurance" or "health insurance" means insurance providing:
(i) health care benefits; or
(ii) payment of incurred health care expenses.
(b) "Health care insurance" or "health insurance" does not include accident and health insurance providing benefits for:
(i) replacement of income;
(ii) short-term accident;
(iii) fixed indemnity;
(iv) credit accident and health;
(v) supplements to liability;
(vi) workers' compensation;
(vii) automobile medical payment;
(viii) no-fault automobile;
(ix) equivalent self-insurance; or
(x) any type of accident and health insurance coverage that is a part of or attached to another type of policy.
(75) "Income replacement insurance" or "disability income insurance" means insurance written to provide payments to replace income lost from accident or sickness.
(76) "Indemnity" means the payment of an amount to offset all or part of an insured loss.
(77) "Independent adjuster" means an insurance adjuster required to be licensed under Section 31A-26-201 who engages in insurance adjusting as a representative of insurers.
(78) "Independently procured insurance" means insurance procured under Section 31A-15-104.
(79) "Individual" means a natural person.
(80) "Inland marine insurance" includes insurance covering:
(a) property in transit on or over land;
(b) property in transit over water by means other than boat or ship;
(c) bailee liability;
(d) fixed transportation property such as bridges, electric transmission systems, radio and television transmission towers and tunnels; and
(e) personal and commercial property floaters.
(81) "Insolvency" means that:
(a) an insurer is unable to pay its debts or meet its obligations as they mature;
(b) an insurer's total adjusted capital is less than the insurer's mandatory control level RBC under Subsection 31A-17-601(8)(c); or
(c) an insurer is determined to be hazardous under this title.
(82) (a) "Insurance" means:
(i) an arrangement, contract, or plan for the transfer of a risk or risks from one or more persons to one or more other persons; or
(ii) an arrangement, contract, or plan for the distribution of a risk or risks among a group of persons that includes the person seeking to distribute that person's risk.
(b) "Insurance" includes:
(i) risk distributing arrangements providing for compensation or replacement for damages or loss through the provision of services or benefits in kind;
(ii) contracts of guaranty or suretyship entered into by the guarantor or surety as a business and not as merely incidental to a business transaction; and
(iii) plans in which the risk does not rest upon the person who makes the arrangements, but with a class of persons who have agreed to share it.
(83) "Insurance adjuster" means a person who directs the investigation, negotiation, or settlement of a claim under an insurance policy other than life insurance or an annuity, on behalf of an insurer, policyholder, or a claimant under an insurance policy.
(84) "Insurance business" or "business of insurance" includes:
(a) providing health care insurance, as defined in Subsection (74), by organizations that are or should be licensed under this title;
(b) providing benefits to employees in the event of contingencies not within the control of the employees, in which the employees are entitled to the benefits as a right, which benefits may be provided either:
(i) by single employers or by multiple employer groups; or
(ii) through trusts, associations, or other entities;
(c) providing annuities, including those issued in return for gifts, except those provided by persons specified in Subsections 31A-22-1305(2) and (3);
(d) providing the characteristic services of motor clubs as outlined in Subsection (112);
(e) providing other persons with insurance as defined in Subsection (82);
(f) making as insurer, guarantor, or surety, or proposing to make as insurer, guarantor, or surety, any contract or policy of title insurance;
(g) transacting or proposing to transact any phase of title insurance, including:
(i) solicitation;
(ii) negotiation preliminary to execution;
(iii) execution of a contract of title insurance;
(iv) insuring; and
(v) transacting matters subsequent to the execution of the contract and arising out of the contract, including reinsurance; and
(h) doing, or proposing to do, any business in substance equivalent to Subsections (84)(a) through (g) in a manner designed to evade the provisions of this title.
(85) "Insurance consultant" or "consultant" means a person who:
(a) advises other persons about insurance needs and coverages;
(b) is compensated by the person advised on a basis not directly related to the insurance placed; and
(c) except as provided in Section 31A-23a-501, is not compensated directly or indirectly by an insurer or producer for advice given.
(86) "Insurance holding company system" means a group of two or more affiliated persons, at least one of whom is an insurer.
(87) (a) "Insurance producer" or "producer" means a person licensed or required to be licensed under the laws of this state to sell, solicit, or negotiate insurance.
(b) With regards to the selling, soliciting, or negotiating of an insurance product to an insurance customer or an insured:
(i) "producer for the insurer" means a producer who is compensated directly or indirectly by an insurer for selling, soliciting, or negotiating any product of that insurer; and
(ii) "producer for the insured" means a producer who:
(A) is compensated directly and only by an insurance customer or an insured; and
(B) receives no compensation directly or indirectly from an insurer for selling, soliciting, or negotiating any product of that insurer to an insurance customer or insured.
(88) (a) "Insured" means a person to whom or for whose benefit an insurer makes a promise in an insurance policy and includes:
(i) policyholders;
(ii) subscribers;
(iii) members; and
(iv) beneficiaries.
(b) The definition in Subsection (88)(a):
(i) applies only to this title; and
(ii) does not define the meaning of this word as used in insurance policies or certificates.
(89) (a) (i) "Insurer" means any person doing an insurance business as a principal including:
(A) fraternal benefit societies;
(B) issuers of gift annuities other than those specified in Subsections 31A-22-1305(2) and (3);
(C) motor clubs;
(D) employee welfare plans; and
(E) any person purporting or intending to do an insurance business as a principal on that person's own account.
(ii) "Insurer" does not include a governmental entity to the extent it is engaged in the activities described in Section 31A-12-107.
(b) "Admitted insurer" is defined in Subsection (161)(b).
(c) "Alien insurer" is defined in Subsection (7).
(d) "Authorized insurer" is defined in Subsection (161)(b).
(e) "Domestic insurer" is defined in Subsection (48).
(f) "Foreign insurer" is defined in Subsection (64).
(g) "Nonadmitted insurer" is defined in Subsection (161)(a).
(h) "Unauthorized insurer" is defined in Subsection (161)(a).
(90) "Interinsurance exchange" is defined in Subsection (141).
(91) "Involuntary unemployment insurance" means insurance:
(a) offered in connection with an extension of credit;
(b) that provides indemnity if the debtor is involuntarily unemployed for payments coming due on a:
(i) specific loan; or
(ii) credit transaction.
(92) "Large employer," in connection with a health benefit plan, means an employer who, with respect to a calendar year and to a plan year:
(a) employed an average of at least 51 eligible employees on each business day during the preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(93) "Late enrollee," with respect to an employer health benefit plan, means an individual whose enrollment is a late enrollment.
(94) "Late enrollment," with respect to an employer health benefit plan, means enrollment of an individual other than:
(a) on the earliest date on which coverage can become effective for the individual under the terms of the plan; or
(b) through special enrollment.
(95) (a) Except for a retainer contract or legal assistance described in Section 31A-1-103, "legal expense insurance" means insurance written to indemnify or pay for specified legal expenses.
(b) "Legal expense insurance" includes arrangements that create reasonable expectations of enforceable rights.
(c) "Legal expense insurance" does not include the provision of, or reimbursement for, legal services incidental to other insurance coverages.
(96) (a) "Liability insurance" means insurance against liability:
(i) for death, injury, or disability of any human being, or for damage to property, exclusive of the coverages under:
(A) Subsection (106) for medical malpractice insurance;
(B) Subsection (133) for professional liability insurance; and
(C) Subsection (166) for workers' compensation insurance;
(ii) for medical, hospital, surgical, and funeral benefits to persons other than the insured who are injured, irrespective of legal liability of the insured, when issued with or supplemental to insurance against legal liability for the death, injury, or disability of human beings, exclusive of the coverages under:
(A) Subsection (106) for medical malpractice insurance;
(B) Subsection (133) for professional liability insurance; and
(C) Subsection (166) for workers' compensation insurance;
(iii) for loss or damage to property resulting from accidents to or explosions of boilers, pipes, pressure containers, machinery, or apparatus;
(iv) for loss or damage to any property caused by the breakage or leakage of sprinklers, water pipes and containers, or by water entering through leaks or openings in buildings; or
(v) for other loss or damage properly the subject of insurance not within any other kind or kinds of insurance as defined in this chapter, if such insurance is not contrary to law or public policy.
(b) "Liability insurance" includes:
(i) vehicle liability insurance as defined in Subsection (163);
(ii) residential dwelling liability insurance as defined in Subsection (144); and
(iii) making inspection of, and issuing certificates of inspection upon, elevators, boilers, machinery, and apparatus of any kind when done in connection with insurance on them.
(97) (a) "License" means the authorization issued by the commissioner to engage in some activity that is part of or related to the insurance business.
(b) "License" includes certificates of authority issued to insurers.
(98) (a) "Life insurance" means insurance on human lives and insurances pertaining to or connected with human life.
(b) The business of life insurance includes:
(i) granting death benefits;
(ii) granting annuity benefits;
(iii) granting endowment benefits;
(iv) granting additional benefits in the event of death by accident;
(v) granting additional benefits to safeguard the policy against lapse; and
(vi) providing optional methods of settlement of proceeds.
(99) "Limited license" means a license that:
(a) is issued for a specific product of insurance; and
(b) limits an individual or agency to transact only for that product or insurance.
(100) "Limited line credit insurance" includes the following forms of insurance:
(a) credit life;
(b) credit accident and health;
(c) credit property;
(d) credit unemployment;
(e) involuntary unemployment;
(f) mortgage life;
(g) mortgage guaranty;
(h) mortgage accident and health;
(i) guaranteed automobile protection; and
(j) any other form of insurance offered in connection with an extension of credit that:
(i) is limited to partially or wholly extinguishing the credit obligation; and
(ii) the commissioner determines by rule should be designated as a form of limited line credit insurance.
(101) "Limited line credit insurance producer" means a person who sells, solicits, or negotiates one or more forms of limited line credit insurance coverage to individuals through a master, corporate, group, or individual policy.
(102) "Limited line insurance" includes:
(a) bail bond;
(b) limited line credit insurance;
(c) legal expense insurance;
(d) motor club insurance;
(e) rental car-related insurance;
(f) travel insurance; and
(g) any other form of limited insurance that the commissioner determines by rule should be designated a form of limited line insurance.
(103) "Limited lines authority" includes:
(a) the lines of insurance listed in Subsection (102); and
(b) a customer service representative.
(104) "Limited lines producer" means a person who sells, solicits, or negotiates limited lines insurance.
(105) (a) "Long-term care insurance" means an insurance policy or rider advertised, marketed, offered, or designated to provide coverage:
(i) in a setting other than an acute care unit of a hospital;
(ii) for not less than 12 consecutive months for each covered person on the basis of:
(A) expenses incurred;
(B) indemnity;
(C) prepayment; or
(D) another method;
(iii) for one or more necessary or medically necessary services that are:
(A) diagnostic;
(B) preventative;
(C) therapeutic;
(D) rehabilitative;
(E) maintenance; or
(F) personal care; and
(iv) that may be issued by:
(A) an insurer;
(B) a fraternal benefit society;
(C) (I) a nonprofit health hospital; and
(II) a medical service corporation;
(D) a prepaid health plan;
(E) a health maintenance organization; or
(F) an entity similar to the entities described in Subsections (105)(a)(iv)(A) through (E) to the extent that the entity is otherwise authorized to issue life or health care insurance.
(b) "Long-term care insurance" includes:
(i) any of the following that provide directly or supplement long-term care insurance:
(A) a group or individual annuity or rider; or
(B) a life insurance policy or rider;
(ii) a policy or rider that provides for payment of benefits based on:
(A) cognitive impairment; or
(B) functional capacity; or
(iii) a qualified long-term care insurance contract.
(c) "Long-term care insurance" does not include:
(i) a policy that is offered primarily to provide basic Medicare supplement coverage;
(ii) basic hospital expense coverage;
(iii) basic medical/surgical expense coverage;
(iv) hospital confinement indemnity coverage;
(v) major medical expense coverage;
(vi) income replacement or related asset-protection coverage;
(vii) accident only coverage;
(viii) coverage for a specified:
(A) disease; or
(B) accident;
(ix) limited benefit health coverage; or
(x) a life insurance policy that accelerates the death benefit to provide the option of a lump sum payment:
(A) if the following are not conditioned on the receipt of long-term care:
(I) benefits; or
(II) eligibility; and
(B) the coverage is for one or more the following qualifying events:
(I) terminal illness;
(II) medical conditions requiring extraordinary medical intervention; or
(III) permanent institutional confinement.
(106) "Medical malpractice insurance" means insurance against legal liability incident to the practice and provision of medical services other than the practice and provision of dental services.
(107) "Member" means a person having membership rights in an insurance corporation.
(108) "Minimum capital" or "minimum required capital" means the capital that must be constantly maintained by a stock insurance corporation as required by statute.
(109) "Mortgage accident and health insurance" means insurance offered in connection with an extension of credit that provides indemnity for payments coming due on a mortgage while the debtor is disabled.
(110) "Mortgage guaranty insurance" means surety insurance under which mortgagees and other creditors are indemnified against losses caused by the default of debtors.
(111) "Mortgage life insurance" means insurance on the life of a debtor in connection with an extension of credit that pays if the debtor dies.
(112) "Motor club" means a person:
(a) licensed under:
(i) Chapter 5, Domestic Stock and Mutual Insurance Corporations;
(ii) Chapter 11, Motor Clubs; or
(iii) Chapter 14, Foreign Insurers; and
(b) that promises for an advance consideration to provide for a stated period of time:
(i) legal services under Subsection 31A-11-102(1)(b);
(ii) bail services under Subsection 31A-11-102(1)(c); or
(iii) (A) trip reimbursement;
(B) towing services;
(C) emergency road services;
(D) stolen automobile services;
(E) a combination of the services listed in Subsections (112)(b)(iii)(A) through (D); or
(F) any other services given in Subsections 31A-11-102(1)(b) through (f).
(113) "Mutual" means a mutual insurance corporation.
(114) "Network plan" means health care insurance:
(a) that is issued by an insurer; and
(b) under which the financing and delivery of medical care is provided, in whole or in part, through a defined set of providers under contract with the insurer, including the financing and delivery of items paid for as medical care.
(115) "Nonparticipating" means a plan of insurance under which the insured is not entitled to receive dividends representing shares of the surplus of the insurer.
(116) "Ocean marine insurance" means insurance against loss of or damage to:
(a) ships or hulls of ships;
(b) goods, freight, cargoes, merchandise, effects, disbursements, profits, moneys, securities, choses in action, evidences of debt, valuable papers, bottomry, respondentia interests, or other cargoes in or awaiting transit over the oceans or inland waterways;
(c) earnings such as freight, passage money, commissions, or profits derived from transporting goods or people upon or across the oceans or inland waterways; or
(d) a vessel owner or operator as a result of liability to employees, passengers, bailors, owners of other vessels, owners of fixed objects, customs or other authorities, or other persons in connection with maritime activity.
(117) "Order" means an order of the commissioner.
(118) "Outline of coverage" means a summary that explains an accident and health insurance policy.
(119) "Participating" means a plan of insurance under which the insured is entitled to receive dividends representing shares of the surplus of the insurer.
(120) "Participation," as used in a health benefit plan, means a requirement relating to the minimum percentage of eligible employees that must be enrolled in relation to the total number of eligible employees of an employer reduced by each eligible employee who voluntarily declines coverage under the plan because the employee has other group health care insurance coverage.
(121) "Person" includes an individual, partnership, corporation, incorporated or unincorporated association, joint stock company, trust, limited liability company, reciprocal, syndicate, or any similar entity or combination of entities acting in concert.
(122) "Personal lines insurance" means property and casualty insurance coverage sold for primarily noncommercial purposes to:
(a) individuals; and
(b) families.
(123) "Plan sponsor" is as defined in 29 U.S.C. Sec. 1002(16)(B).
(124) "Plan year" means:
(a) the year that is designated as the plan year in:
(i) the plan document of a group health plan; or
(ii) a summary plan description of a group health plan;
(b) if the plan document or summary plan description does not designate a plan year or there is no plan document or summary plan description:
(i) the year used to determine deductibles or limits;
(ii) the policy year, if the plan does not impose deductibles or limits on a yearly basis; or
(iii) the employer's taxable year if:
(A) the plan does not impose deductibles or limits on a yearly basis; and
(B) (I) the plan is not insured; or
(II) the insurance policy is not renewed on an annual basis; or
(c) in a case not described in Subsection (124)(a) or (b), the calendar year.
(125) (a) "Policy" means any document, including attached endorsements and riders, purporting to be an enforceable contract, which memorializes in writing some or all of the terms of an insurance contract.
(b) "Policy" includes a service contract issued by:
(i) a motor club under Chapter 11, Motor Clubs;
(ii) a service contract provided under Chapter 6a, Service Contracts; and
(iii) a corporation licensed under:
(A) Chapter 7, Nonprofit Health Service Insurance Corporations; or
(B) Chapter 8, Health Maintenance Organizations and Limited Health Plans.
(c) "Policy" does not include:
(i) a certificate under a group insurance contract; or
(ii) a document that does not purport to have legal effect.
(126) "Policyholder" means the person who controls a policy, binder, or oral contract by ownership, premium payment, or otherwise.
(127) "Policy illustration" means a presentation or depiction that includes nonguaranteed elements of a policy of life insurance over a period of years.
(128) "Policy summary" means a synopsis describing the elements of a life insurance policy.
(129) "Preexisting condition," with respect to a health benefit plan:
(a) means a condition that was present before the effective date of coverage, whether or not any medical advice, diagnosis, care, or treatment was recommended or received before that day; and
(b) does not include a condition indicated by genetic information unless an actual diagnosis of the condition by a physician has been made.
(130) (a) "Premium" means the monetary consideration for an insurance policy.
(b) "Premium" includes, however designated:
(i) assessments;
(ii) membership fees;
(iii) required contributions; or
(iv) monetary consideration.
(c) (i) Consideration paid to third party administrators for their services is not "premium."
(ii) Amounts paid by third party administrators to insurers for insurance on the risks administered by the third party administrators are "premium."
(131) "Principal officers" of a corporation means the officers designated under Subsection 31A-5-203(3).
(132) "Proceedings" includes actions and special statutory proceedings.
(133) "Professional liability insurance" means insurance against legal liability incident to the practice of a profession and provision of any professional services.
(134) (a) Except as provided in Subsection (134)(b), "property insurance" means insurance against loss or damage to real or personal property of every kind and any interest in that property:
(i) from all hazards or causes; and
(ii) against loss consequential upon the loss or damage including vehicle comprehensive and vehicle physical damage coverages.
(b) "Property insurance" does not include:
(i) inland marine insurance as defined in Subsection (80); and
(ii) ocean marine insurance as defined under Subsection (116).
(135) "Qualified long-term care insurance contract" or "federally tax qualified long-term care insurance contract" means:
(a) an individual or group insurance contract that meets the requirements of Section 7702B(b), Internal Revenue Code; or
(b) the portion of a life insurance contract that provides long-term care insurance:
(i) (A) by rider; or
(B) as a part of the contract; and
(ii) that satisfies the requirements of Sections 7702B(b) and (e), Internal Revenue Code.
(136) "Qualified United States financial institution" means an institution that:
(a) is:
(i) organized under the laws of the United States or any state; or
(ii) in the case of a United States office of a foreign banking organization, licensed under the laws of the United States or any state;
(b) is regulated, supervised, and examined by United States federal or state authorities having regulatory authority over banks and trust companies; and
(c) meets the standards of financial condition and standing that are considered necessary and appropriate to regulate the quality of financial institutions whose letters of credit will be acceptable to the commissioner as determined by:
(i) the commissioner by rule; or
(ii) the Securities Valuation Office of the National Association of Insurance Commissioners.
(137) (a) "Rate" means:
(i) the cost of a given unit of insurance; or
(ii) for property-casualty insurance, that cost of insurance per exposure unit either expressed as:
(A) a single number; or
(B) a pure premium rate, adjusted before any application of individual risk variations based on loss or expense considerations to account for the treatment of:
(I) expenses;
(II) profit; and
(III) individual insurer variation in loss experience.
(b) "Rate" does not include a minimum premium.
(138) (a) Except as provided in Subsection (138)(b), "rate service organization" means any person who assists insurers in rate making or filing by:
(i) collecting, compiling, and furnishing loss or expense statistics;
(ii) recommending, making, or filing rates or supplementary rate information; or
(iii) advising about rate questions, except as an attorney giving legal advice.
(b) "Rate service organization" does not mean:
(i) an employee of an insurer;
(ii) a single insurer or group of insurers under common control;
(iii) a joint underwriting group; or
(iv) a natural person serving as an actuarial or legal consultant.
(139) "Rating manual" means any of the following used to determine initial and renewal policy premiums:
(a) a manual of rates;
(b) classifications;
(c) rate-related underwriting rules; and
(d) rating formulas that describe steps, policies, and procedures for determining initial and renewal policy premiums.
(140) "Received by the department" means:
(a) except as provided in Subsection (140)(b), the date delivered to and stamped received by the department, whether delivered:
(i) in person; or
(ii) electronically; and
(b) if delivered to the department by a delivery service, the delivery service's postmark date or pick-up date unless otherwise stated in:
(i) statute;
(ii) rule; or
(iii) a specific filing order.
(141) "Reciprocal" or "interinsurance exchange" means any unincorporated association of persons:
(a) operating through an attorney-in-fact common to all of them; and
(b) exchanging insurance contracts with one another that provide insurance coverage on each other.
(142) "Reinsurance" means an insurance transaction where an insurer, for consideration, transfers any portion of the risk it has assumed to another insurer. In referring to reinsurance transactions, this title sometimes refers to:
(a) the insurer transferring the risk as the "ceding insurer"; and
(b) the insurer assuming the risk as the:
(i) "assuming insurer"; or
(ii) "assuming reinsurer."
(143) "Reinsurer" means any person licensed in this state as an insurer with the authority to assume reinsurance.
(144) "Residential dwelling liability insurance" means insurance against liability resulting from or incident to the ownership, maintenance, or use of a residential dwelling that is a detached single family residence or multifamily residence up to four units.
(145) "Retrocession" means reinsurance with another insurer of a liability assumed under a reinsurance contract. A reinsurer "retrocedes" when it reinsures with another insurer part of a liability assumed under a reinsurance contract.
(146) "Rider" means an endorsement to:
(a) an insurance policy; or
(b) an insurance certificate.
(147) (a) "Security" means any:
(i) note;
(ii) stock;
(iii) bond;
(iv) debenture;
(v) evidence of indebtedness;
(vi) certificate of interest or participation in any profit-sharing agreement;
(vii) collateral-trust certificate;
(viii) preorganization certificate or subscription;
(ix) transferable share;
(x) investment contract;
(xi) voting trust certificate;
(xii) certificate of deposit for a security;
(xiii) certificate of interest of participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease;
(xiv) commodity contract or commodity option;
(xv) certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the items listed in Subsections (147)(a)(i) through (xiv); or
(xvi) other interest or instrument commonly known as a security.
(b) "Security" does not include:
(i) any of the following under which an insurance company promises to pay money in a specific lump sum or periodically for life or some other specified period:
(A) insurance;
(B) endowment policy; or
(C) annuity contract; or
(ii) a burial certificate or burial contract.
(148) "Self-insurance" means any arrangement under which a person provides for spreading its own risks by a systematic plan.
(a) Except as provided in this Subsection (148), "self-insurance" does not include an arrangement under which a number of persons spread their risks among themselves.
(b) "Self-insurance" includes:
(i) an arrangement by which a governmental entity undertakes to indemnify its employees for liability arising out of the employees' employment; and
(ii) an arrangement by which a person with a managed program of self-insurance and risk management undertakes to indemnify its affiliates, subsidiaries, directors, officers, or employees for liability or risk which is related to the relationship or employment.
(c) "Self-insurance" does not include any arrangement with independent contractors.
(149) "Sell" means to exchange a contract of insurance:
(a) by any means;
(b) for money or its equivalent; and
(c) on behalf of an insurance company.
(150) "Short-term care insurance" means any insurance policy or rider advertised, marketed, offered, or designed to provide coverage that is similar to long-term care insurance but that provides coverage for less than 12 consecutive months for each covered person.
(151) "Significant break in coverage" means a period of 63 consecutive days during each of which an individual does not have any creditable coverage.
(152) "Small employer," in connection with a health benefit plan, means an employer who, with respect to a calendar year and to a plan year:
(a) employed an average of at least two employees but not more than 50 eligible employees on each business day during the preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(153) "Special enrollment period," in connection with a health benefit plan, has the same meaning as provided in federal regulations adopted pursuant to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936.
(154) (a) "Subsidiary" of a person means an affiliate controlled by that person either directly or indirectly through one or more affiliates or intermediaries.
(b) "Wholly owned subsidiary" of a person is a subsidiary of which all of the voting shares are owned by that person either alone or with its affiliates, except for the minimum number of shares the law of the subsidiary's domicile requires to be owned by directors or others.
(155) Subject to Subsection (82)(b), "surety insurance" includes:
(a) a guarantee against loss or damage resulting from failure of principals to pay or perform their obligations to a creditor or other obligee;
(b) bail bond insurance; and
(c) fidelity insurance.
(156) (a) "Surplus" means the excess of assets over the sum of paid-in capital and liabilities.
(b) (i) "Permanent surplus" means the surplus of a mutual insurer that has been designated by the insurer as permanent.
(ii) Sections 31A-5-211, 31A-7-201, 31A-8-209, 31A-9-209, and 31A-14-209 require that mutuals doing business in this state maintain specified minimum levels of permanent surplus.
(iii) Except for assessable mutuals, the minimum permanent surplus requirement is essentially the same as the minimum required capital requirement that applies to stock insurers.
(c) "Excess surplus" means:
(i) for life or accident and health insurers, health organizations, and property and casualty insurers as defined in Section 31A-17-601, the lesser of:
(A) that amount of an insurer's or health organization's total adjusted capital, as defined in Subsection (159), that exceeds the product of:
(I) 2.5; and
(II) the sum of the insurer's or health organization's minimum capital or permanent surplus required under Section 31A-5-211, 31A-9-209, or 31A-14-205; or
(B) that amount of an insurer's or health organization's total adjusted capital, as defined in Subsection (159), that exceeds the product of:
(I) 3.0; and
(II) the authorized control level RBC as defined in Subsection 31A-17-601(8)(a); and
(ii) for monoline mortgage guaranty insurers, financial guaranty insurers, and title insurers, that amount of an insurer's paid-in-capital and surplus that exceeds the product of:
(A) 1.5; and
(B) the insurer's total adjusted capital required by Subsection 31A-17-609(1).
(157) "Third party administrator" or "administrator" means any person who collects charges or premiums from, or who, for consideration, adjusts or settles claims of residents of the state in connection with insurance coverage, annuities, or service insurance coverage, except:
(a) a union on behalf of its members;
(b) a person administering any:
(i) pension plan subject to the federal Employee Retirement Income Security Act of 1974;
(ii) governmental plan as defined in Section 414(d), Internal Revenue Code; or
(iii) nonelecting church plan as described in Section 410(d), Internal Revenue Code;
(c) an employer on behalf of the employer's employees or the employees of one or more of the subsidiary or affiliated corporations of the employer;
(d) an insurer licensed under Chapter 5, 7, 8, 9, or 14, but only for a line of insurance for which the insurer holds a license in this state; or
(e) a person:
(i) licensed or exempt from licensing under:
(A) Chapter 23a, Insurance Marketing - Licensing Producers, Consultants, and Reinsurance Intermediaries; or
(B) Chapter 26, Insurance Adjusters; and
(ii) whose activities are limited to those authorized under the license the person holds or for which the person is exempt.
(158) "Title insurance" means the insuring, guaranteeing, or indemnifying of owners of real or personal property or the holders of liens or encumbrances on that property, or others interested in the property against loss or damage suffered by reason of liens or encumbrances upon, defects in, or the unmarketability of the title to the property, or invalidity or unenforceability of any liens or encumbrances on the property.
(159) "Total adjusted capital" means the sum of an insurer's or health organization's statutory capital and surplus as determined in accordance with:
(a) the statutory accounting applicable to the annual financial statements required to be filed under Section 31A-4-113; and
(b) any other items provided by the RBC instructions, as RBC instructions is defined in Section 31A-17-601.
(160) (a) "Trustee" means "director" when referring to the board of directors of a corporation.
(b) "Trustee," when used in reference to an employee welfare fund, means an individual, firm, association, organization, joint stock company, or corporation, whether acting individually or jointly and whether designated by that name or any other, that is charged with or has the overall management of an employee welfare fund.
(161) (a) "Unauthorized insurer," "unadmitted insurer," or "nonadmitted insurer" means an insurer:
(i) not holding a valid certificate of authority to do an insurance business in this state; or
(ii) transacting business not authorized by a valid certificate.
(b) "Admitted insurer" or "authorized insurer" means an insurer:
(i) holding a valid certificate of authority to do an insurance business in this state; and
(ii) transacting business as authorized by a valid certificate.
(162) "Underwrite" means the authority to accept or reject risk on behalf of the insurer.
(163) "Vehicle liability insurance" means insurance against liability resulting from or incident to ownership, maintenance, or use of any land vehicle or aircraft, exclusive of vehicle comprehensive and vehicle physical damage coverages under Subsection (134).
(164) "Voting security" means a security with voting rights, and includes any security convertible into a security with a voting right associated with the security.
(165) "Waiting period" for a health benefit plan means the period that must pass before coverage for an individual, who is otherwise eligible to enroll under the terms of the health benefit plan, can become effective.
(166) "Workers' compensation insurance" means:
(a) insurance for indemnification of employers against liability for compensation based on:
(i) compensable accidental injuries; and
(ii) occupational disease disability;
(b) employer's liability insurance incidental to workers' compensation insurance and written in connection with workers' compensation insurance; and
(c) insurance assuring to the persons entitled to workers' compensation benefits the compensation provided by law.
Section 337. Section 31A-2-201 is amended to read:
31A-2-201
. General duties and powers.(1) The commissioner shall administer and enforce this title.
(2) The commissioner has all powers specifically granted, and all further powers that are reasonable and necessary to enable the commissioner to perform the duties imposed by this title.
(3) (a) The commissioner may make rules to implement the provisions of this title according to the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) In addition to the notice requirements of Section [63-46a-4] 63G-3-301, the commissioner shall provide notice under Section 31A-2-303 of hearings concerning insurance department rules.
(4) (a) The commissioner shall issue prohibitory, mandatory, and other orders as necessary to secure compliance with this title. An order by the commissioner is not effective unless the order:
(i) is in writing; and
(ii) is signed by the commissioner or under the commissioner's authority.
(b) On request of any person who would be affected by an order under Subsection (4)(a), the commissioner may issue a declaratory order to clarify the person's rights or duties.
(5) (a) The commissioner may hold informal adjudicative proceedings and public meetings, for the purpose of:
(i) investigation;
(ii) ascertainment of public sentiment; or
(iii) informing the public.
(b) An effective rule or order may not result from informal hearings and meetings unless the requirement of a hearing under this section is satisfied.
(6) The commissioner shall inquire into violations of this title and may conduct any examinations and investigations of insurance matters, in addition to examinations and investigations expressly authorized, that the commissioner considers proper to determine:
(a) whether or not any person has violated any provision of this title; or
(b) to secure information useful in the lawful administration of this title.
(7) (a) Each year, the commissioner shall:
(i) conduct an evaluation of the state's health insurance market;
(ii) report the findings of the evaluation to the Health and Human Services Interim Committee before October 1; and
(iii) publish the findings of the evaluation on the department website.
(b) The evaluation required by Subsection (7)(a) shall:
(i) analyze the effectiveness of the insurance regulations and statutes in promoting a healthy, competitive health insurance market that meets the needs of Utahns by assessing such things as:
(A) the availability and marketing of individual and group products;
(B) rate charges;
(C) coverage and demographic changes;
(D) benefit trends;
(E) market share changes; and
(F) accessibility;
(ii) assess complaint ratios and trends within the health insurance market, which assessment shall integrate complaint data from the Office of Consumer Health Assistance within the department;
(iii) contain recommendations for action to improve the overall effectiveness of the health insurance market, administrative rules, and statutes; and
(iv) include claims loss ratio data for each insurance company doing business in the state.
(c) When preparing the evaluation required by this Subsection (7), the commissioner may seek the input of insurers, employers, insured persons, providers, and others with an interest in the health insurance market.
Section 338. Section 31A-2-201.1 is amended to read:
31A-2-201.1
. General filing requirements.Except as otherwise provided in this title, the commissioner may set by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, specific requirements for filing any of the following required by this title:
(1) a form;
(2) a rate; or
(3) a report.
Section 339. Section 31A-2-203 is amended to read:
31A-2-203
. Examinations and alternatives.(1) (a) Whenever the commissioner considers it necessary in order to inform the commissioner about any matter related to the enforcement of this title, the commissioner may examine the affairs and condition of:
(i) a licensee under this title;
(ii) an applicant for a license under this title;
(iii) a person or organization of persons doing or in process of organizing to do an insurance business in this state; or
(iv) a person who is not, but should be, licensed under this title.
(b) When reasonably necessary for an examination under Subsection (1)(a), the commissioner may examine:
(i) so far as they relate to the examinee, the accounts, records, documents, or evidences of transactions of:
(A) the insurer or other licensee;
(B) any officer or other person who has executive authority over or is in charge of any segment of the examinee's affairs; or
(C) any affiliate of the examinee; or
(ii) any third party model or product used by the examinee.
(c) (i) On demand, each examinee under Subsection (1)(a) shall make available to the commissioner for examination:
(A) any of the examinee's own accounts, records, files, documents, or evidences of transactions; and
(B) to the extent reasonably necessary for an examination, the accounts, records, files, documents, or evidences of transactions of any persons under Subsection (1)(b).
(ii) Except as provided in Subsection (1)(c)(iii), failure to make the documents described in Subsection (1)(c)(i) available is concealment of records under Subsection 31A-27a-207(1)(e).
(iii) If the examinee is unable to obtain accounts, records, files, documents, or evidences of transactions from persons under Subsection (1)(b), that failure is not concealment of records if the examinee immediately terminates the relationship with the other person.
(d) (i) Neither the commissioner nor an examiner may remove any account, record, file, document, evidence of transaction, or other property of the examinee from the examinee's offices unless:
(A) the examinee consents in writing; or
(B) a court grants permission.
(ii) The commissioner may make and remove copies or abstracts of the following described in Subsection (1)(d)(i):
(A) an account;
(B) a record;
(C) a file;
(D) a document;
(E) evidence of transaction; or
(F) other property.
(2) (a) Subject to the other provisions of this section, the commissioner shall examine as needed and as otherwise provided by law:
(i) every insurer, both domestic and nondomestic;
(ii) every licensed rate service organization; and
(iii) any other licensee.
(b) The commissioner shall examine insurers, both domestic and nondomestic, no less frequently than once every five years, but the commissioner may use in lieu examinations under Subsection (4) to satisfy this requirement.
(c) The commissioner shall revoke the certificate of authority of an insurer or the license of a rate service organization that has not been examined, or submitted an acceptable in lieu report under Subsection (4), within the past five years.
(d) (i) Any 25 persons who are policyholders, shareholders, or creditors of a domestic insurer may by verified petition demand a hearing under Section 31A-2-301 to determine whether the commissioner should conduct an unscheduled examination of the insurer.
(ii) Persons demanding the hearing under this Subsection (2)(d) shall be given an opportunity in the hearing to present evidence that an examination of the insurer is necessary.
(iii) If the evidence justifies an examination, the commissioner shall order an examination.
(e) (i) When the board of directors of a domestic insurer requests that the commissioner examine the insurer, the commissioner shall examine the insurer as soon as reasonably possible.
(ii) If the examination requested under this Subsection (2)(e) is conducted within two years after completion of a comprehensive examination by the commissioner, costs of the requested examination may not be deducted from premium taxes under Section 59-9-102 unless the commissioner's order specifically provides for the deduction.
(f) Bail bond surety companies as defined in Section 31A-35-102 are exempted from:
(i) the five-year examination requirement in Subsection (2)(b);
(ii) the revocation under Subsection (2)(c); and
(iii) Subsections (2)(d) and (2)(e).
(3) (a) The commissioner may order an independent audit or examination by technical experts, including certified public accountants and actuaries:
(i) in lieu of all or part of an examination under Subsection (1) or (2); or
(ii) in addition to an examination under Subsection (1) or (2).
(b) Any audit or evaluation under this Subsection (3) is subject to Subsection (5), Section 31A-2-204, and Subsection 31A-2-205(4).
(4) (a) In lieu of all or any part of an examination under this section, the commissioner may accept the report of an examination made by:
(i) the insurance department of another state; or
(ii) another government agency in:
(A) this state;
(B) the federal government; or
(C) another state.
(b) An examination by the commissioner under Subsection (1) or (2) or accepted by the commissioner under this Subsection (4) may use:
(i) an audit already made by a certified public accountant; or
(ii) an actuarial evaluation made by an actuary approved by the commissioner.
(5) (a) An examination may be comprehensive or limited with respect to the examinee's affairs and condition. The commissioner shall determine the nature and scope of each examination, taking into account all relevant factors, including:
(i) the length of time the examinee has been licensed in this state;
(ii) the nature of the business being examined;
(iii) the nature of the accounting or other records available;
(iv) reports from:
(A) independent auditors; and
(B) self-certification entities; and
(v) the nature of examinations performed elsewhere.
(b) The examination of an alien insurer shall be limited to insurance transactions and assets in the United States, unless the commissioner orders otherwise after finding that extraordinary circumstances necessitate a broader examination.
(6) To effectively administer this section, the commissioner:
(a) shall:
(i) maintain effective financial condition and market regulation surveillance systems including:
(A) financial and market analysis; and
(B) review of insurance regulatory information system reports;
(ii) employ a priority scheduling method that focuses on insurers and other licensees most in need of examination; and
(iii) use examination management techniques similar to those outlined in the Financial Condition Examination Handbook of the National Association of Insurance Commissioners; and
(b) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, may make rules pertaining to the financial condition and market regulation surveillance systems.
Section 340. Section 31A-2-203.5 is amended to read:
31A-2-203.5
. Procedures -- Adjudicative proceedings.The commissioner of insurance shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 341. Section 31A-2-204 is amended to read:
31A-2-204
. Conducting examinations.(1) (a) For each examination under Section 31A-2-203, the commissioner shall issue an order:
(i) stating the scope of the examination; and
(ii) designating the examiner in charge.
(b) The commissioner need not give advance notice of an examination to an examinee.
(c) The examiner in charge shall give the examinee a copy of the order issued under this Subsection (1).
(d) (i) The commissioner may alter the scope or nature of an examination at any time without advance notice to the examinee.
(ii) If the commissioner amends an order described in this Subsection (1), the commissioner shall provide a copy of any amended order to the examinee.
(e) Statements in the commissioner's examination order concerning examination scope are for the examiner's guidance only.
(f) Examining relevant matters not mentioned in an order issued under this Subsection (1) is not a violation of this title.
(2) The commissioner shall, whenever practicable, cooperate with the insurance regulators of other states by conducting joint examinations of:
(a) multistate insurers doing business in this state; or
(b) other multistate licensees doing business in this state.
(3) An examiner authorized by the commissioner shall, when necessary to the purposes of the examination, have access at all reasonable hours to the premises and to any books, records, files, securities, documents, or property of:
(a) the examinee; and
(b) any of the following if the premises, books, records, files, securities, documents, or property relate to the affairs of the examinee:
(i) an officer of the examinee;
(ii) any other person who:
(A) has executive authority over the examinee; or
(B) is in charge of any segment of the examinee's affairs; or
(iii) any affiliate of the examinee under Subsection 31A-2-203(1)(b).
(4) (a) The officers, employees, and agents of the examinee and of persons under Subsection 31A-2-203(1)(b) shall comply with every reasonable request of the examiners for assistance in any matter relating to the examination.
(b) A person may not obstruct or interfere with the examination except by legal process.
(5) If the commissioner finds the accounts or records to be inadequate for proper examination of the condition and affairs of the examinee or improperly kept or posted, the commissioner may employ experts to rewrite, post, or balance the accounts or records at the expense of the examinee.
(6) (a) The examiner in charge of an examination shall make a report of the examination no later than 60 days after the completion of the examination that shall include:
(i) the information and analysis ordered under Subsection (1); and
(ii) the examiner's recommendations.
(b) At the option of the examiner in charge, preparation of the report may include conferences with the examinee or representatives of the examinee.
(c) The report is confidential until the report becomes a public document under Subsection (7), except the commissioner may use information from the report as a basis for action under Chapter 27a, Insurer Receivership Act.
(7) (a) The commissioner shall serve a copy of the examination report described in Subsection (6) upon the examinee.
(b) Within 20 days after service, the examinee shall:
(i) accept the examination report as written; or
(ii) request agency action to modify the examination report.
(c) The report is considered accepted under this Subsection (7) if the examinee does not file a request for agency action to modify the report within 20 days after service of the report.
(d) If the examination report is accepted:
(i) the examination report immediately becomes a public document; and
(ii) the commissioner shall distribute the examination report to all jurisdictions in which the examinee is authorized to do business.
(e) (i) Any adjudicative proceeding held as a result of the examinee's request for agency action shall, upon the examinee's demand, be closed to the public, except that the commissioner need not exclude any participating examiner from this closed hearing.
(ii) Within 20 days after the hearing held under this Subsection (7)(e), the commissioner shall:
(A) adopt the examination report with any necessary modifications; and
(B) serve a copy of the adopted report upon the examinee.
(iii) Unless the examinee seeks judicial relief, the adopted examination report:
(A) shall become a public document ten days after service; and
(B) may be distributed as described in this section.
(f) Notwithstanding [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, to the extent that this section is in conflict with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, this section governs:
(i) a request for agency action under this section; or
(ii) adjudicative proceeding under this section.
(8) The examinee shall promptly furnish copies of the adopted examination report described in Subsection (7) to each member of the examinee's board.
(9) After an examination report becomes a public document under Subsection (7), the commissioner may furnish, without cost or at a reasonable price set under Section 31A-3-103, a copy of the examination report to interested persons, including:
(a) a member of the board of the examinee; or
(b) one or more newspapers in this state.
(10) (a) In a proceeding by or against the examinee, or any officer or agent of the examinee, the examination report as adopted by the commissioner is admissible as evidence of the facts stated in the report.
(b) In any proceeding commenced under Chapter 27a, Insurer Receivership Act, the examination report, whether adopted by the commissioner or not, is admissible as evidence of the facts stated in the examination report.
Section 342. Section 31A-2-207 is amended to read:
31A-2-207
. Commissioner's records and reports -- Protection from disclosure of certain records.(1) The commissioner shall maintain all department records that are:
(a) required by law;
(b) necessary for the effective operation of the department; or
(c) necessary to maintain a full record of department activities.
(2) The records of the department may be preserved, managed, stored, and made available for review consistent with:
(a) another Utah statute;
(b) the rules made under Section [63-2-904] 63A-12-104;
(c) the decisions of the State Records Committee made under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; or
(d) the needs of the public.
(3) A department record may not be destroyed, damaged, or disposed of without:
(a) authorization of the commissioner; and
(b) compliance with all other applicable laws.
(4) The commissioner shall maintain a permanent record of the commissioner's proceedings and important activities, including:
(a) a concise statement of the condition of each insurer examined by the commissioner; and
(b) a record of all certificates of authority and licenses issued by the commissioner.
(5) (a) Prior to October 1 of each year, the commissioner shall prepare an annual report to the governor which shall include, for the preceding calendar year, the information concerning the department and the insurance industry which the commissioner believes will be useful to the governor and the public.
(b) The report required by this Subsection (5) shall include the information required under Chapter 27a, Insurer Receivership Act, and Subsections 31A-2-106(2), 31A-2-205(3), and 31A-2-208(3).
(c) The commissioner shall make the report required by this Subsection (5) available to the public and industry in electronic format.
(6) All department records and reports are open to public inspection unless specifically provided otherwise by statute or by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(7) On request, the commissioner shall provide to any person certified or uncertified copies of any record in the department that is open to public inspection.
(8) Notwithstanding Subsection (6) and [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the commissioner shall protect from disclosure any record, as defined in Section [63-2-103] 63G-2-103, or other document received from an insurance regulator of another jurisdiction:
(a) at least to the same extent the record or document is protected from disclosure under the laws applicable to the insurance regulator providing the record or document; or
(b) under the same terms and conditions of confidentiality as the National Association of Insurance Commissioners requires as a condition of participating in any of the National Association of Insurance Commissioners' programs.
Section 343. Section 31A-2-209 is amended to read:
31A-2-209
. Access to state records.Subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the commissioner shall have access to the records of any agency of the state government or of any political subdivision of the state which he may consult in discharging his duties.
Section 344. Section 31A-2-217 is amended to read:
31A-2-217
. Coordination with other states.(1) (a) Subject to Subsection (1)(b), the commissioner, by rule, may adopt one or more agreements with another governmental regulatory agency, within and outside of this state, or with the National Association of Insurance Commissioners to address:
(i) licensing of insurance companies;
(ii) licensing of agents;
(iii) regulation of premium rates and policy forms; and
(iv) regulation of insurer insolvency and insurance receiverships.
(b) An agreement described in Subsection (1)(a), may authorize the commissioner to modify a requirement of this title if the commissioner determines that the requirements under the agreement provide protections similar to or greater than the requirements under this title.
(2) (a) The commissioner may negotiate an interstate compact that addresses issuing certificates of authority, if the commissioner determines that:
(i) each state participating in the compact has requirements for issuing certificates of authority that provide protections similar to or greater than the requirements of this title; or
(ii) the interstate compact contains requirements for issuing certificates of authority that provide protections similar to or greater than the requirements of this title.
(b) If an interstate compact described in Subsection (2)(a) is adopted by the Legislature, the commissioner may issue certificates of authority to insurers in accordance with the terms of the interstate compact.
(3) If any provision of this title conflicts with a provision of the annual statement instructions or the National Association of Insurance Commissioners Accounting Practices and Procedures Manual, the commissioner may, by rule, resolve the conflict in favor of the annual statement instructions or the National Association of Insurance Commissioners Accounting Practices and Procedures Manual.
(4) The commissioner may, by rule, accept the information prescribed by the National Association of Insurance Commissioners instead of the documents required to be filed with an application for a certificate of authority under:
(a) Section 31A-4-103, 31A-5-204, 31A-8-205, or 31A-14-201; or
(b) rules made by the commissioner.
(5) Before November 30, 2001, the commissioner shall report to the Business and Labor Interim Committee regarding the status of:
(a) any agreements entered into under Subsection (1);
(b) any interstate compact entered into under Subsection (2); and
(c) any rule made under Subsections (3) and (4).
(6) This section shall be repealed in accordance with Section [63-55-231] 63I-1-231.
Section 345. Section 31A-2-302 is amended to read:
31A-2-302
. Commissioner's disapproval.(1) When the law requires the commissioner's approval for a certain action without a deemer clause, that approval must be express. The commissioner's disapproval of an action is assumed if the commissioner does not act within 60 days after receiving the application for approval or give notice of his reasonable extension of that time period with his reasons for the extension. Assumed disapproval under this subsection entitles the aggrieved person to request agency action under Section [63-46b-3] 63G-4-201.
(2) When the law provides that a certain action is not effective if disapproved by the commissioner within a certain period, the affirmative approval by the commissioner may make the action effective at a designated earlier date, but not earlier than the date of the commissioner's affirmative approval.
(3) Subsections (1) and (2) do not apply to the extent that the law specifically provides otherwise.
Section 346. Section 31A-2-306.5 is amended to read:
31A-2-306.5
. Stay of commissioner's decision pending administrative review or judicial appeal.(1) An order of the commissioner or a designee of the commissioner is not stayed by a petition for:
(a) administrative review;
(b) rehearing; or
(c) judicial review.
(2) A person seeking to stay an order of the commissioner or a designee of the commissioner shall seek a stay in accordance with:
(a) rules made by the commissioner in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, pending a petition for:
(i) administrative review; or
(ii) rehearing; or
(b) Section [63-46b-18] 63G-4-405, pending judicial review.
Section 347. Section 31A-2-404 is amended to read:
31A-2-404
. Duties of the commissioner and Title and Escrow Commission.(1) Notwithstanding the other provisions of this chapter, to the extent provided in this part, the commissioner shall administer and enforce the provisions in this title related to:
(a) title insurance; and
(b) escrow conducted by a title licensee or title insurer.
(2) The commission shall:
(a) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and subject to Subsection (3), make rules for the administration of the provisions in this title related to title insurance including rules related to:
(i) rating standards and rating methods for title agencies and producers as provided in Section 31A-19a-209;
(ii) the licensing for a title licensee including the licensing requirements of Sections 31A-23a-203 and 31A-23a-204;
(iii) continuing education requirements of Section 31A-23a-202;
(iv) examination procedures, after consultation with the department and the department's test administrator when required by Section 31A-23a-204; and
(v) standards of conduct for a title licensee;
(b) concur in the issuance and renewal of licenses in accordance with Section 31A-23a-105 or 31A-26-203;
(c) in accordance with Section 31A-3-103, establish, with the concurrence of the department, all fees imposed by this title on a title licensee;
(d) in accordance with Section 31A-23a-415 determine, after consulting with the commissioner, the assessment on a title insurer as defined in Section 31A-23a-415;
(e) conduct all administrative hearings not delegated by the commission to an administrative law judge related to the:
(i) licensing of any applicant;
(ii) conduct of any title licensee; or
(iii) approval of continuing education programs required by Section 31A-23a-202;
(f) with the concurrence of the commissioner, approve assets that can be included in a reserve fund required by Section 31A-23a-204;
(g) with the concurrence of the commissioner, approve continuing education programs required by Section 31A-23a-202;
(h) with the concurrence of the commissioner, impose penalties:
(i) under this title related to:
(A) title insurance; or
(B) escrow conducted by a title licensee;
(ii) after investigation by the department in accordance with Part 3, Procedures and Enforcement; and
(iii) that are enforced by the commissioner;
(i) advise the commissioner on the administration and enforcement of any matters affecting the title insurance industry;
(j) advise the commissioner on matters affecting the department's budget related to title insurance; and
(k) perform other duties as provided in this title.
(3) The commission may make a rule under this title only if at the time the commission files its proposed rule and rule analysis with the Division of Administrative Rules in accordance with Section [63-46a-4] 63G-3-301, the commission provides the Real Estate Commission that same information.
(4) (a) The commissioner shall annually report the information described in Subsection (4)(b) in writing to:
(i) the commission; and
(ii) the Business and Labor Interim Committee.
(b) The information required to be reported under this Subsection (4):
(i) may not identify a person; and
(ii) shall include:
(A) the number of complaints the department receives with regard to transactions involving title insurance or a title licensee during the calendar year immediately proceeding the report;
(B) the type of complaints described in Subsection (4)(b)(ii)(A); and
(C) for each complaint described in Subsection (4)(b)(ii)(A):
(I) any action taken by the department with regard to the complaint; and
(II) the time-period beginning the day on which a complaint is made and ending the day on which the department determines it will take no further action with regard to the complaint.
Section 348. Section 31A-3-101 is amended to read:
31A-3-101
. General finance provisions.(1) The department's expenses shall be paid from the General Fund. Department expenditures shall conform to the Legislature's appropriation adopted under [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
(2) Except as provided in Section 31A-2-206, or as otherwise specifically provided in this title, all monies collected by the commissioner shall be deposited without deduction in the General Fund.
Section 349. Section 31A-3-103 is amended to read:
31A-3-103
. Fees.(1) For purposes of this section:
(a) "Regulatory fee" is as defined in Section [63-38-3.2] 63J-1-303.
(b) "Services" means functions that are reasonable and necessary to enable the commissioner to perform the duties imposed by this title including:
(i) issuing and renewing licenses and certificates of authority;
(ii) filing policy forms;
(iii) reporting agent appointments and terminations; and
(iv) filing annual statements.
(c) Fees related to the renewal of licenses may be imposed no more frequently than once each year.
(2) (a) A regulatory fee charged by the department shall be set in accordance with Section [63-38-3.2] 63J-1-303.
(b) Fees shall be set and collected for services provided by the department.
(3) (a) For a fee authorized by this chapter that is not a regulatory fee, the department may adopt a schedule of fees provided that each fee in the schedule of fees is:
(i) reasonable and fair; and
(ii) submitted to the Legislature as part of the department's annual appropriations request.
(b) If a fee schedule described in Subsection (3)(a) is submitted as part of the department's annual appropriations request, the Legislature may, in a manner substantially similar to Section [63-38-3.2] 63J-1-303:
(i) approve any fee in the fee schedule;
(ii) (A) increase or decrease any fee in the fee schedule; and
(B) approve any fee in the fee schedule as changed by the Legislature; or
(iii) reject any fee in the fee schedule.
(c) (i) Except as provided in Subsection (3)(c)(ii), a fee approved by the Legislature pursuant to this Subsection (3) shall be deposited into the General Fund for appropriation by the Legislature.
(ii) A fee approved by the Legislature pursuant to this Subsection (3) that relates to the use of electronic or other similar technology to provide the services of the department shall be deposited into the General Fund as a dedicated credit to be used by the department to provide services through use of electronic commerce or other similar technology.
(4) The commissioner shall separately publish the schedule of fees approved by the Legislature and make it available upon request for $1 per copy. This fee schedule shall also be included in any compilation of rules promulgated by the commissioner.
(5) The commissioner shall, by rule, establish the deadlines for payment of any fee established by the department in accordance with this section.
Section 350. Section 31A-3-304 is amended to read:
31A-3-304
. Annual fees -- Other taxes or fees prohibited.(1) (a) A captive insurance company shall pay an annual fee imposed under this section to obtain or renew a certificate of authority.
(b) The commissioner shall:
(i) determine the annual fee pursuant to Sections 31A-3-103 and [63-38-3.2] 63J-1-303; and
(ii) consider whether the annual fee is competitive with fees imposed by other states on captive insurance companies.
(2) A captive insurance company that fails to pay the fee required by this section is subject to the relevant sanctions of this title.
(3) (a) Except as provided in Subsection (3)(b) and notwithstanding Title 59, Chapter 9, Taxation of Admitted Insurers, the fee provided for in this section constitutes the sole tax or fee under the laws of this state that may be otherwise levied or assessed on a captive insurance company, and no other occupation tax or other tax or fee may be levied or collected from a captive insurance company by the state or a county, city, or municipality within this state.
(b) Notwithstanding Subsection (3)(a), a captive insurance company is subject to real and personal property taxes.
(4) A captive insurance company shall pay the fee imposed by this section to the department by March 31 of each year.
(5) (a) The funds received pursuant to Subsection (2) shall be deposited into the General Fund as a dedicated credit to be used by the department to:
(i) administer and enforce Chapter 37, Captive Insurance Companies Act; and
(ii) promote the captive insurance industry in Utah.
(b) At the end of each fiscal year, funds received by the department in excess of $250,000 shall be treated as free revenue in the General Fund.
Section 351. Section 31A-4-103 is amended to read:
31A-4-103
. Certificate of authority.(1) Each certificate of authority issued by the commissioner shall specify:
(a) the name of the insurer;
(b) the kinds of insurance the insurer is authorized to transact in Utah; and
(c) any other information the commissioner requires.
(2) A certificate of authority issued under this chapter remains in force until:
(a) the certificate is not renewed; or
(b) under Subsection (3), the certificate of authority is:
(i) revoked; or
(ii) suspended.
(3) (a) After an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the commissioner makes a finding described in Subsection (3)(b), the commissioner may:
(i) revoke a certificate of authority;
(ii) suspend a certificate of authority for a period not to exceed 12 months; or
(iii) limit a certificate of authority.
(b) The commissioner may take any action described in Subsection (3)(a) if the commissioner finds the insurer has:
(i) failed to pay when due any fee due under Section 31A-3-103;
(ii) violated or failed to comply with:
(A) this title;
(B) a rule made under Subsection 31A-2-201(3); or
(C) an order issued under Subsection 31A-2-201(4); or
(iii) engaged in methods and practices in the conduct of business that endanger the legitimate interests of customers and the public.
(c) An order suspending a certificate of authority shall specify:
(i) the conditions and terms imposed on the insurer during the suspension; and
(ii) the conditions and procedures for reinstatement from suspension.
(d) The commissioner may place limitations on a certificate of authority at the time the certificate of authority is issued based on information contained in the application for the certificate of authority.
(e) An order limiting a certificate of authority that is issued under Subsection (3)(a) or (3)(d) shall specify:
(i) the period of the limitation;
(ii) the conditions of the limitation; and
(iii) the procedures for removing the limitation.
(4) Subject to the requirements of this section and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may by rule prescribe procedures to renew or reinstate a certificate of authority.
(5) An insurer under this chapter whose certificate of authority is suspended or revoked, but that continues to act as an authorized insurer, is subject to the penalties for acting as an insurer without a certificate of authority.
(6) Any insurer holding a certificate of authority in this state shall immediately report to the commissioner a suspension or revocation of that insurer's certificate of authority in any:
(a) state;
(b) the District of Columbia; or
(c) a territory of the United States.
(7) (a) An order revoking a certificate of authority under Subsection (3) may specify a time within which the former authorized insurer may not apply for a new certificate of authority, except that the time may not exceed five years from the date on which the certificate of authority is revoked.
(b) If no time is specified in an order revoking a certificate of authority under Subsection (3), the former authorized insurer may not apply for a new certificate of authority for five years from the date on which the certificate of authority is revoked without express approval by the commissioner.
(8) (a) Subject to Subsection (8)(b), the insurer shall pay all fees under Section 31A-3-103 that would have been payable if the certificate of authority had not been suspended or revoked, unless the commissioner, in accordance with rule, waives the payment of the fees by no later than the day on which:
(i) a suspension under Subsection (3) of an insurer's certificate of authority ends; or
(ii) a new certificate of authority is issued to an insurer whose certificate of authority is revoked under Subsection (3).
(b) If a new certificate of authority is issued more than three years after the day on which a similar certificate of authority was revoked, this Subsection (8) applies only to the fees that would have accrued during the three years immediately following the revocation.
Section 352. Section 31A-5-204 is amended to read:
31A-5-204
. Organization permit -- Certificate of incorporation.(1) Subject to Section 31A-5-213, a person, including a stock insurance corporation, insurance holding company, stock corporation to finance an insurer or insurance production for an insurer, corporation to provide management or administrative services for any of the entities named above, or mutual insurer, may not solicit subscriptions for its securities, or in the case of a mutual insurance corporation, solicit applications for qualifying insurance policies or subscriptions for mutual bonds or contribution notes, until the commissioner has issued an organization permit.
(2) The application for an organization permit shall give the name of the insurer to be formed and shall be signed and acknowledged by or on behalf of each incorporator. The application shall include or have attached:
(a) the names, and for the preceding ten years all addresses, and all occupations of the incorporators and the proposed directors and officers;
(b) for all persons planned by the incorporators to own 10% or more of the capital stock of the corporation, their annual financial statements and reports for the three most recent years, and if the planned shareholders are corporations, their articles and bylaws, and a list of the names, addresses, and occupations of all their directors and principal officers;
(c) the proposed articles, which shall be signed and acknowledged by or on behalf of each incorporator, and the proposed bylaws;
(d) all agreements relating to the corporation to which any incorporator, proposed director, or officer is a party;
(e) the amount and sources of the funds available for organization expenses and the proposed arrangements for reimbursement and compensation of incorporators or other persons;
(f) the plan for solicitation of applications for qualifying insurance policies and for the corporation's securities;
(g) the forms to be used for stock subscriptions, certificates for shares, applications for qualifying insurance policies, subscriptions for mutual bonds and contribution notes, and the forms for bonds and notes;
(h) the capital and initial paid in surplus in the case of a stock insurer, or the minimum permanent surplus and the additional surplus in the case of a mutual insurer;
(i) the plan for conducting the insurance business, including:
(i) the geographical area in which business is intended to be done in the first two years;
(ii) the types of insurance intended to be written in the first two years;
(iii) the proposed marketing methods;
(iv) when requested by the commissioner, the proposed method for establishing premium rates; and
(v) the proposed aggregate compensation of the five highest compensated officers, directors, and employees;
(j) a projection certified by a member of the American Academy of Actuaries of the anticipated operating results of the corporation at the end of each of the first two years of operation, based on reasonable assumptions of loss experience, premium and other income, operating expenses, and acquisition costs; and
(k) any other relevant document or information the commissioner reasonably requires.
(3) The commissioner shall issue an organization permit if:
(a) all the requirements of law have been met, including the payment of fees;
(b) all the incorporators, persons listed in Subsection (2)(b), and the proposed directors and officers of the corporation being formed, are trustworthy and collectively have the competence and experience to engage in the particular insurance business proposed;
(c) the business plan is consistent with the interests of the corporation's potential insureds and the public; and
(d) the bond required by Section 31A-5-205 is filed.
(4) If the commissioner denies the application for a permit, the commissioner shall state the reasons for the denial.
(5) (a) The organization permit shall:
(i) specify the minimum capital or minimum permanent surplus required under Section 31A-5-211; and
(ii) describe the securities or policies to be solicited under the permit.
(b) The organization permit may contain any other information the commissioner considers necessary.
(6) The director of the Division of Corporations and Commercial Code shall accept the filing of the corporation's articles of incorporation upon notice from the insurance commissioner that all the applicable requirements of law have been met, including the payment of fees.
(7) (a) When the director of the Division of Corporations and Commercial Code accepts the articles of incorporation:
(i) the legal existence of the corporation begins;
(ii) the articles and bylaws become effective; and
(iii) the proposed directors and officers take office.
(b) The certificate is conclusive evidence of compliance with this section, except in a proceeding by the state against the corporation.
(8) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the permit applicant may request that any part of the information supplied under Subsection (2) be kept confidential. The information shall then be kept confidential unless the commissioner expressly finds, after a hearing, that the interest of the corporation or the public requires that the information be open to the public.
Section 353. Section 31A-6a-110 is amended to read:
31A-6a-110
. Rulemaking.(1) Pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may make rules necessary to assist in the enforcement of this chapter.
(2) The commissioner may by rule or order, after a hearing, exempt certain service contract providers or service contract providers for a specific class of service contracts that are not otherwise exempt under Subsection 31A-1-103(3) from any provision of this title. The commissioner may order substitute requirements on a finding that a particular provision of this title is not necessary for the protection of the public or that the substitute requirement is reasonably certain to provide equivalent protection to the public.
Section 354. Section 31A-8a-203 is amended to read:
31A-8a-203
. Information filed with the department.(1) Prior to operating a health discount program, a person must submit the following to the commissioner:
(a) a copy of contract forms used by the health discount program for:
(i) health care providers or health care provider networks participating in the health discount program, including the discounts for medical services provided to enrollees;
(ii) marketing;
(iii) administration of the health discount program;
(iv) enrollment;
(v) investment management for the health discount programs; and
(vi) subcontracts for any services;
(b) the program's proposed marketing plan; and
(c) dispute resolution procedures for program holders.
(2) The company must file prior to use:
(a) the form of contracts used by the health discount program operator;
(b) the marketing plan; and
(c) dispute resolution procedures.
(3) The commissioner may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this section.
Section 355. Section 31A-8a-210 is amended to read:
31A-8a-210
. Rulemaking authority.The commissioner has authority to adopt administrative rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(1) to enforce this chapter; and
(2) as necessary to protect the public interest.
Section 356. Section 31A-12-107 is amended to read:
31A-12-107
. Governmental immunity.Notwithstanding any other provision of this title, a governmental entity is not an insurer for purposes of this title and is not engaged in the business of insurance to the extent that it is:
(1) covering its own liabilities under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah; or
(2) engaging in other related risk management activities related to the normal course of its activities.
Section 357. Section 31A-14-217 is amended to read:
31A-14-217
. Revocation of certificate of authority.Whenever there would be grounds for delinquency proceedings under Chapter 27a, Insurer Receivership Act, against a foreign insurer, if the foreign insurer were a domestic insurer, the commissioner may, after any proceeding authorized by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, revoke, suspend, or limit the foreign insurer's certificate of authority. This action does not affect insurance which has already been issued. The insurer remains subject to regulation until released under Section 31A-14-216.
Section 358. Section 31A-17-503 is amended to read:
31A-17-503
. Actuarial opinion of reserves.(1) This section becomes operative on December 31, 1993.
(2) General: Every life insurance company doing business in this state shall annually submit the opinion of a qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the commissioner by rule are computed appropriately, are based on assumptions which satisfy contractual provisions, are consistent with prior reported amounts, and comply with applicable laws of this state. The commissioner by rule shall define the specifics of this opinion and add any other items considered to be necessary to its scope.
(3) Actuarial analysis of reserves and assets supporting reserves:
(a) Every life insurance company, except as exempted by or pursuant to rule, shall also annually include in the opinion required by Subsection (2), an opinion of the same qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the commissioner by rule, when considered in light of the assets held by the company with respect to the reserves and related actuarial items, including but not limited to the investment earnings on the assets and the considerations anticipated to be received and retained under the policies and contracts, make adequate provision for the company's obligations under the policies and contracts, including but not limited to the benefits under the expenses associated with the policies and contracts.
(b) The commissioner may provide by rule for a transition period for establishing any higher reserves which the qualified actuary may consider necessary in order to render the opinion required by this section.
(4) Requirement for opinion under Subsection (3): Each opinion required by Subsection (3) shall be governed by the following provisions:
(a) A memorandum, in form and substance acceptable to the commissioner as specified by rule, shall be prepared to support each actuarial opinion.
(b) If the insurance company fails to provide a supporting memorandum at the request of the commissioner within a period specified by rule or the commissioner determines that the supporting memorandum provided by the insurance company fails to meet the standards prescribed by the rule or is otherwise unacceptable to the commissioner, the commissioner may engage a qualified actuary at the expense of the company to review the opinion and the basis for the opinion and prepare such supporting memorandum as is required by the commissioner.
(5) Requirement for all opinions: Every opinion shall be governed by the following provisions:
(a) The opinion shall be submitted with the annual statement reflecting the valuation of the reserve liabilities for each year ending on or after December 31, 1993.
(b) The opinion shall apply to all business in force including individual and group health insurance plans, in form and substance acceptable to the commissioner as specified by rule.
(c) The opinion shall be based on standards adopted from time to time by the Actuarial Standards Board and on such additional standards as the commissioner may by rule prescribe.
(d) In the case of an opinion required to be submitted by a foreign or alien company, the commissioner may accept the opinion filed by that company with the insurance supervisory official of another state if the commissioner determines that the opinion reasonably meets the requirements applicable to a company domiciled in this state.
(e) For the purposes of this section, "qualified actuary" means a member in good standing of the American Academy of Actuaries who meets the requirements set forth by department rule.
(f) Except in cases of fraud or willful misconduct, the qualified actuary is not liable for damages to any person, other than the insurance company and the commissioner, for any act, error, omission, decision, or conduct with respect to the actuary's opinion.
(g) Disciplinary action by the commissioner against the company or the qualified actuary shall be defined in rules by the commissioner.
(h) Any memorandum in support of the opinion, and any other material provided by the company to the commissioner in connection therewith, are considered protected records under Section [63-2-304] 63G-2-305 and may not be made public and are not subject to subpoena under Subsection [63-2-202] 63G-2-202(7), other than for the purpose of defending an action seeking damages from any person by reason of any action required by this section or rules promulgated under this section. However, the memorandum or other material may otherwise be released by the commissioner (i) with the written consent of the company or (ii) to the American Academy of Actuaries upon request stating that the memorandum or other material is required for the purpose of professional disciplinary proceedings and setting forth procedures satisfactory to the commissioner for preserving the confidentiality of the memorandum or other material. Once any portion of the confidential memorandum is cited in its marketing or is cited before any governmental agency other than the department or is released to the news media, all portions of the memorandum are no longer confidential.
Section 359. Section 31A-19a-211 (Superseded 07/01/08) is amended to read:
31A-19a-211 (Superseded 07/01/08)
. Premium rate reduction for seniors -- Motor vehicle accident prevention course -- Curriculum -- Certificate -- Exception.(1) (a) Each rate, rating schedule, and rating manual for the liability, personal injury protection, and collision coverages of private passenger motor vehicle insurance policies submitted to or filed with the commissioner shall provide for an appropriate reduction in premium charges for those coverages if the principal operator of the covered vehicle:
(i) is a named insured who is 55 years of age or older; and
(ii) has successfully completed a motor vehicle accident prevention course as outlined in Subsection (2).
(b) Any premium reduction provided by an insurer under this section is presumed to be appropriate unless credible data demonstrates otherwise.
(2) (a) The curriculum for a motor vehicle accident prevention course under this section shall include:
(i) how impairment of visual and audio perception affects driving performance and how to compensate for that impairment;
(ii) the effects of fatigue, medications, and alcohol on driving performance, when experienced alone or in combination, and precautionary measures to prevent or offset ill effects;
(iii) updates on rules of the road and equipment, including safety belts and safe, efficient driving techniques under present day road and traffic conditions;
(iv) how to plan travel time and select routes for safety and efficiency; and
(v) how to make crucial decisions in dangerous, hazardous, and unforeseen situations.
(b) (i) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Public Safety may make rules to establish and clarify standards pertaining to the curriculum and teaching methods of a course under this section.
(ii) These rules may include provisions allowing the department to conduct on-site visits to ensure compliance with agency rules and this chapter.
(iii) These rules shall be specific as to time and manner of visits and provide for methods to prohibit or remedy forcible visits.
(3) (a) The premium reduction required by this section shall be effective for a named insured for a three-year period after successful completion of the course outlined in Subsection (2).
(b) The insurer may require, as a condition of maintaining the premium reduction, that the named insured not be convicted or plead guilty or nolo contendere to a moving traffic violation for which points may be assessed against the named insured's driver license except for a violation under Subsection 53-3-221(11).
(4) Each person who successfully completes the course outlined in Subsection (2) shall be issued a certificate by the organization offering the course. The certificate qualifies the person for the premium reduction required by this section.
(5) This section does not apply if the approved course outlined in Subsection (2) is attended as a penalty imposed by a court or other governmental entity for a moving traffic violation.
Section 360. Section 31A-19a-211 (Effective 07/01/08) is amended to read:
31A-19a-211 (Effective 07/01/08)
. Premium rate reduction for seniors -- Motor vehicle accident prevention course -- Curriculum -- Certificate -- Exception.(1) (a) Each rate, rating schedule, and rating manual for the liability, personal injury protection, and collision coverages of private passenger motor vehicle insurance policies submitted to or filed with the commissioner shall provide for an appropriate reduction in premium charges for those coverages if the principal operator of the covered vehicle:
(i) is a named insured who is 55 years of age or older; and
(ii) has successfully completed a motor vehicle accident prevention course as outlined in Subsection (2).
(b) Any premium reduction provided by an insurer under this section is presumed to be appropriate unless credible data demonstrates otherwise.
(2) (a) The curriculum for a motor vehicle accident prevention course under this section shall include:
(i) how impairment of visual and audio perception affects driving performance and how to compensate for that impairment;
(ii) the effects of fatigue, medications, and alcohol on driving performance, when experienced alone or in combination, and precautionary measures to prevent or offset ill effects;
(iii) updates on rules of the road and equipment, including safety belts and safe, efficient driving techniques under present day road and traffic conditions;
(iv) how to plan travel time and select routes for safety and efficiency; and
(v) how to make crucial decisions in dangerous, hazardous, and unforeseen situations.
(b) (i) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Public Safety may make rules to establish and clarify standards pertaining to the curriculum and teaching methods of a course under this section.
(ii) These rules may include provisions allowing the department to conduct on-site visits to ensure compliance with agency rules and this chapter.
(iii) These rules shall be specific as to time and manner of visits and provide for methods to prohibit or remedy forcible visits.
(3) (a) The premium reduction required by this section shall be effective for a named insured for a three-year period after successful completion of the course outlined in Subsection (2).
(b) The insurer may require, as a condition of maintaining the premium reduction, that the named insured not be convicted or plead guilty or nolo contendere to a moving traffic violation for which points may be assessed against the named insured's driver license except for a violation under Subsection 53-3-221(12).
(4) Each person who successfully completes the course outlined in Subsection (2) shall be issued a certificate by the organization offering the course. The certificate qualifies the person for the premium reduction required by this section.
(5) This section does not apply if the approved course outlined in Subsection (2) is attended as a penalty imposed by a court or other governmental entity for a moving traffic violation.
Section 361. Section 31A-19a-304 is amended to read:
31A-19a-304
. Probation.(1) (a) In any circumstances that would justify a suspension under Section 31A-19a-303, instead of a suspension, the commissioner may, after a hearing, put the licensee on probation for a specified period not to exceed 12 months from the date of probation.
(b) The probation order shall state the conditions for retention of the license, which shall be reasonable.
(2) Violation of the probation constitutes grounds for revocation pursuant to a proceeding authorized under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 362. Section 31A-21-109 is amended to read:
31A-21-109
. Debt cancellation agreements and debt suspension agreements.(1) As used in this section:
(a) "Debt cancellation agreement" means a contract between a lender and a borrower where the lender, for a separately stated consideration, agrees to waive all or part of the debt in the event of a fortuitous event such as death, disability, or the destruction of the lender's collateral.
(b) "Debt suspension agreement" means a contract between a lender and a borrower where the lender, for a separately stated consideration, agrees to suspend scheduled installment payments for an agreed period of time in the event of a:
(i) fortuitous event such as involuntary unemployment or accident; or
(ii) fortuitous condition such as sickness.
(c) "Institution" means:
(i) a bank as defined in Section 7-1-103;
(ii) a credit union as defined in Section 7-1-103;
(iii) an industrial bank as defined in Section 7-1-103; or
(iv) a savings and loan association as defined in Section 7-1-103.
(d) "Regulate the issuance" includes regulation of the following with respect to a debt cancellation agreement or a debt suspension agreement:
(i) terms;
(ii) conditions;
(iii) rates;
(iv) forms; and
(v) claims.
(e) "Subsidiary" is as defined in Section 7-1-103.
(2) Except as provided in Subsection (6), the commissioner has sole jurisdiction over the regulation of a debt cancellation agreement or debt suspension agreement.
(3) Subject to this section, the commissioner may by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) authorize an insurer to issue:
(i) a debt cancellation agreement; or
(ii) a debt suspension agreement; and
(b) regulate the issuance of:
(i) a debt cancellation agreement; or
(ii) a debt suspension agreement.
(4) Except as provided in Subsection (6), a debt cancellation agreement or a debt suspension agreement may be issued only by an insurer authorized to issue a debt cancellation agreement or debt suspension agreement under this section.
(5) (a) The rules promulgated by the commissioner under this section shall regulate the issuance of a debt cancellation agreement or debt suspension agreement according to the functional insurance equivalent of each type of debt cancellation agreement or debt suspension agreement.
(b) Except as provided in Subsection (5)(c), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may by rule determine the functional insurance equivalent of each type of debt cancellation agreement or debt suspension agreement.
(c) Notwithstanding Subsection (5)(b), the functional insurance equivalent of a debt cancellation agreement that provides for the cancellation of indebtedness at death is credit life insurance.
(6) Notwithstanding the other provisions of this section, the issuance of a debt cancellation agreement or a debt suspension agreement by an institution or a subsidiary of an institution is:
(a) not subject to this section; and
(b) subject to the jurisdiction of the primary regulator of:
(i) the institution; or
(ii) the subsidiary of an institution.
Section 363. Section 31A-22-315 is amended to read:
31A-22-315
. Motor vehicle insurance reporting -- Penalty.(1) (a) As used in this section, "commercial motor vehicle insurance coverage" means an insurance policy that:
(i) includes motor vehicle liability coverage, uninsured motorist coverage, underinsured motorist coverage, or personal injury coverage; and
(ii) is defined by the department.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules defining commercial motor vehicle insurance coverage.
(2) (a) Except as provided in Subsections (2)(b) and (c), each insurer that issues a policy that includes motor vehicle liability coverage, uninsured motorist coverage, underinsured motorist coverage, or personal injury coverage under this part shall before the seventh and twenty-first day of each calendar month provide to the Department of Public Safety's designated agent selected in accordance with Title 41, Chapter 12a, Part 8, Uninsured Motorist Identification Database Program, a record of each motor vehicle insurance policy in effect for vehicles registered or garaged in Utah as of the previous submission that was issued by the insurer.
(b) Each insurer that issues commercial motor vehicle insurance coverage shall before the seventh day of each calendar month provide to the Department of Public Safety's designated agent selected in accordance with Title 41, Chapter 12a, Part 8, Uninsured Motorist Identification Database Program, a record of each commercial motor vehicle insurance policy in effect for vehicles registered or garaged in Utah as of the previous month that was issued by the insurer.
(c) An insurer that issues a policy that includes motor vehicle liability coverage, uninsured motorist coverage, underinsured motorist coverage, or personal injury coverage under this part is not required to provide a record of a motor vehicle insurance policy in effect for a vehicle to the Department of Public Safety's designated agent under Subsection (2)(a) or (b) if the policy covers a vehicle that is registered under Section 41-1a-221, 41-1a-222, or 41-1a-301.
(d) This Subsection (2) does not preclude more frequent reporting.
(3) (a) A record provided by an insurer under Subsection (2)(a) shall include:
(i) the name, date of birth, and driver license number, if the insured provides a driver license number to the insurer, of each insured owner or operator, and the address of the named insured;
(ii) the make, year, and vehicle identification number of each insured vehicle; and
(iii) the policy number, effective date, and expiration date of each policy.
(b) A record provided by an insurer under Subsection (2)(b) shall include:
(i) the named insured;
(ii) the policy number, effective date, and expiration date of each policy; and
(iii) the following information, if available:
(A) the name, date of birth, and driver license number of each insured owner or operator, and the address of the named insured; and
(B) the make, year, and vehicle identification number of each insured vehicle.
(4) Each insurer shall provide this information by an electronic means or by another form the Department of Public Safety's designated agent agrees to accept.
(5) (a) The commissioner may, following procedures set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, assess a fine against an insurer of up to $250 for each day the insurer fails to comply with this section.
(b) If an insurer shows that the failure to comply with this section was inadvertent, accidental, or the result of excusable neglect, the commissioner shall excuse the fine.
Section 364. Section 31A-22-320 is amended to read:
31A-22-320
. Use of credit information.(1) For purposes of this section:
(a) "Credit information" means:
(i) a consumer report;
(ii) a credit score;
(iii) any information obtained by the insurer from a consumer report;
(iv) any part of a consumer report; or
(v) any part of a credit score.
(b) (i) Except as provided in Subsection (1)(b)(ii), "consumer report" is as defined in 15 U.S.C. 1681a.
(ii) "Consumer report" does not include:
(A) a motor vehicle record obtained from a state or an agency of a state; or
(B) any information regarding an applicant's or insured's insurance claim history.
(c) (i) "Credit score" means a numerical value or a categorization that is:
(A) derived from information in a consumer report;
(B) derived from a statistical tool or modeling system; and
(C) developed to predict the likelihood of:
(I) future insurance claims behavior; or
(II) credit behavior.
(ii) "Credit score" includes:
(A) a risk predictor; or
(B) a risk score.
(iii) A numerical value or a categorization described in Subsection (1)(c)(i) is a credit score if it is developed to predict the behavior described in Subsection (1)(c)(i)(C) regardless of whether it is developed to predict other factors in addition to predicting the behavior described in Subsection (1)(c)(i)(C).
(d) "Motor vehicle related insurance policy" means:
(i) a motor vehicle liability policy;
(ii) a policy that contains uninsured motorist coverage;
(iii) a policy that contains underinsured motorist coverage;
(iv) a policy that contains property damage coverage under this part; or
(v) a policy that contains personal injury coverage under this part.
(2) An insurer that issues a motor vehicle related insurance policy:
(a) except as provided in Subsection (2)(b), may not use credit information for the purpose of determining for the motor vehicle related insurance policy:
(i) renewal;
(ii) nonrenewal;
(iii) termination;
(iv) eligibility;
(v) underwriting; or
(vi) rating; and
(b) notwithstanding Subsection (2)(a), may use credit information for the purpose of:
(i) if risk related factors other than credit information are considered, determining initial underwriting; or
(ii) providing to an insured:
(A) a reduction in rates paid by the insured for the motor vehicle related insurance policy; or
(B) any other discount similar to the reduction in rates described in Subsection (2)(b)(ii)(A).
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may make rules necessary to enforce this section.
Section 365. Section 31A-22-403 is amended to read:
31A-22-403
. Incontestability.(1) This section does not apply to group policies.
(2) (a) Except as provided in Subsection (3), a life insurance policy is incontestable after the policy has been in force for a period of two years from the policy's date of issue:
(i) during the lifetime of the insured; or
(ii) for a survivorship life insurance policy, during the lifetime of the surviving insured.
(b) A life insurance policy shall state that the life insurance policy is incontestable after the time period described in Subsection (2)(a).
(3) (a) A life insurance policy described in Subsection (2) may be contested for nonpayment of premiums.
(b) A life insurance policy described in Subsection (2) may be contested as to:
(i) provisions relating to accident and health benefits allowed under Section 31A-22-609; and
(ii) additional benefits in the event of death by accident.
(c) If a life insurance policy described in Subsection (2) allows the insured, after the policy's issuance and for an additional premium, to obtain a death benefit that is larger than when the policy was originally issued, the payment of the additional increment of benefit is contestable:
(i) until two years after the incremental increase of benefits; and
(ii) based only on a ground that may arise in connection with the incremental increase.
(4) (a) A reinstated life insurance policy may be contested:
(i) for two years following reinstatement on the same basis as at original issuance; and
(ii) only as to matters arising in connection with the reinstatement.
(b) Any grounds for contest available at original issuance continue to be available for contest until the policy has been in force for a total of two years:
(i) during the lifetime of the insured; and
(ii) for a survivorship life insurance policy, during the lifetime of the surviving insured.
(5) (a) The limitations on incontestability under this section:
(i) preclude only a contest of the validity of the policy; and
(ii) do not preclude the good faith assertion at any time of defenses based upon provisions in the policy that exclude or qualify coverage, whether or not those qualifications or exclusions are specifically excepted in the policy's incontestability clause.
(b) A provision on which the contestable period would normally run may not be reformulated as a coverage exclusion or restriction to take advantage of this Subsection (5).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may make rules to implement this section.
Section 366. Section 31A-22-409 is amended to read:
31A-22-409
. Standard Nonforfeiture Law for Individual Deferred Annuities.(1) This section is known as the "Standard Nonforfeiture Law for Individual Deferred Annuities."
(2) This section does not apply to:
(a) any reinsurance;
(b) a group annuity purchased under a retirement plan or plan of deferred compensation:
(i) established or maintained by:
(A) an employer, including a partnership or sole proprietorship;
(B) an employee organization; or
(C) both an employer and an employee organization; and
(ii) other than a plan providing individual retirement accounts or individual retirement annuities under Section 408, Internal Revenue Code;
(c) a premium deposit fund;
(d) a variable annuity;
(e) an investment annuity;
(f) an immediate annuity;
(g) a deferred annuity contract after annuity payments have commenced;
(h) a reversionary annuity; or
(i) any contract that shall be delivered outside this state through an agent or other representative of the company issuing the contract.
(3) (a) If a policy is issued after this section takes effect as set forth in Subsection (15), a contract of annuity, except as stated in Subsection (2), may not be delivered or issued for delivery in this state unless the contract of annuity contains in substance:
(i) the provisions described in Subsection (3)(b); or
(ii) provisions corresponding to the provisions described in Subsection (3)(b) that in the opinion of the commissioner are at least as favorable to the contractholder, governing cessation of payment of consideration under the contract.
(b) Subsection (3)(a)(i) requires the following provisions:
(i) the company shall grant a paid-up annuity benefit on a plan stipulated in the contract of such a value as specified in Subsections (7), (8), (9), (10), and (12):
(A) upon cessation of payment of consideration under a contract; or
(B) upon a written request of the contract owner;
(ii) if a contract provides for a lump-sum settlement at maturity, or at any other time, upon surrender of the contract at or before the commencement of any annuity payments, the company shall pay in lieu of any paid-up annuity benefit a cash surrender benefit of such amount as is specified in Subsections (7), (8), (10), and (12);
(iii) a statement of the mortality table, if any, and interest rates used in calculating any of the following that are guaranteed under the contract:
(A) minimum paid-up annuity benefits;
(B) cash surrender benefits; or
(C) death benefits;
(iv) sufficient information to determine the amounts of the benefits described in Subsection (3)(b)(iii);
(v) a statement that any paid-up annuity, cash surrender, or death benefits that may be available under the contract are not less than the minimum benefits required by any statute of the state in which the contract is delivered; and
(vi) an explanation of the manner in which the benefits described in Subsection (3)(b)(v) are altered by the existence of any:
(A) additional amounts credited by the company to the contract;
(B) indebtedness to the company on the contract; or
(C) prior withdrawals from or partial surrender of the contract.
(c) Notwithstanding the requirements of this Subsection (3), any deferred annuity contract may provide that if no consideration has been received under a contract for a period of two full years and the portion of the paid-up annuity benefit at maturity on the plan stipulated in the contract arising from consideration paid before the period would be less than $20 monthly:
(i) the company may at the company's option terminate the contract by payment in cash of the then present value of such portion of the paid-up annuity benefit, calculated on the basis of the mortality table specified in the contract, if any, and the interest rate specified in the contract for determining the paid-up annuity benefit; and
(ii) the payment described in Subsection (3)(c)(i), relieves the company of any further obligation under the contract.
(d) A company may reserve the right to defer the payment of cash surrender benefit for a period not to exceed six months after demand for the payment of the cash surrender benefit with surrender of the contract.
(4) For a policy issued before June 1, 2006, the minimum values as specified in Subsections (7), (8), (9), (10), and (12) of any paid-up annuity, cash surrender, or death benefits available under an annuity contract shall be based upon minimum nonforfeiture amounts as established in this Subsection (4).
(a) (i) With respect to contracts providing for flexible considerations, the minimum nonforfeiture amount at any time at or before the commencement of any annuity payments shall be equal to an accumulation up to such time, at a rate of interest of 3% per annum of percentages of the net considerations paid prior to such time:
(A) decreased by the sum of:
(I) any prior withdrawals from or partial surrenders of the contract accumulated at a rate of interest of 3% per annum; and
(II) the amount of any indebtedness to the company on the contract, including interest due and accrued; and
(B) increased by any existing additional amounts credited by the company to the contract.
(ii) For purposes of this Subsection (4)(a), the net consideration for a given contract year used to define the minimum nonforfeiture amount shall be:
(A) an amount not less than zero; and
(B) equal to the corresponding gross considerations credited to the contract during that contract year less:
(I) an annual contract charge of $30; and
(II) a collection charge of $1.25 per consideration credited to the contract during that contract year.
(iii) The percentages of net considerations shall be:
(A) 65% of the net consideration for the first contract year; and
(B) 87-1/2% of the net considerations for the second and later contract years.
(iv) Notwithstanding Subsection (4)(a)(iii), the percentage shall be 65% of the portion of the total net consideration for any renewal contract year that exceeds by not more than two times the sum of those portions of the net considerations in all prior contract years for which the percentage was 65%.
(b) (i) Except as provided in Subsections (4)(b)(ii) and (iii), with respect to contracts providing for fixed scheduled consideration, minimum nonforfeiture amounts shall be:
(A) calculated on the assumption that considerations are paid annually in advance; and
(B) defined as for contracts with flexible considerations that are paid annually.
(ii) The portion of the net consideration for the first contract year to be accumulated shall be equal to an amount that is the sum of:
(A) 65% of the net consideration for the first contract year; and
(B) 22-1/2% of the excess of the net consideration for the first contract year over the lesser of the net considerations for:
(I) the second contract year; and
(II) the third contract year.
(iii) The annual contract charge shall be the lesser of $30 or 10% of the gross annual consideration.
(c) With respect to contracts providing for a single consideration payment, minimum nonforfeiture amounts shall be defined as for contracts with flexible considerations except that:
(i) the percentage of net consideration used to determine the minimum nonforfeiture amount shall be equal to 90%; and
(ii) the net consideration shall be the gross consideration less a contract charge of $75.
(5) For a policy issued on or after June 1, 2006, the minimum values as specified in Subsections (7), (8), (9), (10), and (12) of any paid-up annuity, cash surrender, or death benefits available under an annuity contract shall be based upon minimum nonforfeiture amounts as established in this Subsection (5).
(a) The minimum nonforfeiture amount at any time at or before the commencement of any annuity payments shall be equal to an accumulation up to such time, at rates of interest as indicated in Subsection (5)(b), of 87-1/2% of the gross considerations paid before such time decreased by the sum of:
(i) any prior withdrawals from or partial surrenders of the contract accumulated at rates of interest as indicated in Subsection (5)(b);
(ii) an annual contract charge of $50, accumulated at rates of interest as indicated in Subsection (5)(b);
(iii) any premium tax paid by the company for the contract, accumulated at rates of interest as indicated in Subsection (5)(b); and
(iv) the amount of any indebtedness to the company on the contract, including interest due and accrued.
(b) (i) The interest rate used in determining minimum nonforfeiture amounts shall be an annual rate of interest determined as the lesser of:
(A) 3% per annum; and
(B) the five-year Constant Maturity Treasury Rate reported by the Federal Reserve, rounded to the nearest 1/20th of 1%, as of a date or average over a period no longer than 15 months prior to the contract issue date or redetermination date under Subsection (5)(b)(iii):
(I) reduced by 125 basis points; and
(II) where the resulting interest rate is not less than 1%.
(ii) The interest rate shall apply for an initial period and may be redetermined for additional periods.
(iii) (A) If the interest rate will be reset, the contract shall state:
(I) the initial period;
(II) the redetermination date;
(III) the redetermination basis; and
(IV) the redetermination period.
(B) The basis is the date or average over a specified period that produces the value of the five-year Constant Maturity Treasury Rate to be used at each redetermination date.
(c) (i) During the period or term that a contract provides substantive participation in an equity indexed benefit, the reduction described in Subsection (5)(b)(i)(B)(I) may be increased by up to an additional 100 basis points to reflect the value of the equity index benefit.
(ii) The present value of the additional reduction at the contract issue date and at each redetermination date may not exceed the market value of the benefit.
(iii) (A) The commissioner may require a demonstration that the present value of the additional reduction does not exceed the market value of the benefit.
(B) If the demonstration required under Subsection (5)(c)(iii)(A) is not made to the satisfaction of the commissioner, the commissioner may disallow or limit the additional reduction.
(6) Notwithstanding Subsection (4), for a policy issued on or after June 1, 2004 and before June 1, 2006, at the election of a company, on a contract form-by-contract form basis, the minimum values as specified in Subsections (7), (8), (9), (10), and (12) of any paid-up annuity, cash surrender, or death benefits available under an annuity contract may be based upon minimum nonforfeiture amounts as established in Subsection (5).
(7) (a) Any paid-up annuity benefit available under a contract shall be such that the contract's present value on the date annuity payments are to commence is at least equal to the minimum nonforfeiture amount on that date.
(b) The present value described in Subsection (7)(a) shall be computed using the mortality table, if any, and the interest rate specified in the contract for determining the minimum paid-up annuity benefits guaranteed in the contract.
(8) (a) For contracts that provide cash surrender benefits, the cash surrender benefits available before maturity may not be less than the present value as of the date of surrender of that portion of the cash surrender value that would be provided under the contract at maturity arising from considerations paid before the time of cash surrender:
(i) decreased by the amount appropriate to reflect any prior withdrawals from or partial surrender of the contract;
(ii) decreased by the amount of any indebtedness to the company on the contract, including interest due and accrued; and
(iii) increased by any existing additional amounts credited by the company to the contract.
(b) For purposes of this Subsection (8), the present value being calculated on the basis of an interest rate not more than 1% higher than the interest rate specified in the contract for accumulating the net considerations to determine the maturity value.
(c) In no event shall any cash surrender benefit be less than the minimum nonforfeiture amount at that time.
(d) The death benefit under a contract described in Subsection (8)(a) shall be at least equal to the cash surrender benefit.
(9) (a) For contracts that do not provide cash surrender benefits, the present value of any paid-up annuity benefit available as a nonforfeiture option at any time prior to maturity may not be less than the present value of that portion of the maturity value of the paid-up annuity benefit provided under the contract arising from considerations paid before the time the contract is surrendered in exchange for, or changed to, a deferred paid-up annuity increased by any existing additional amounts credited by the company to the contract.
(b) For purposes of this Subsection (9), the present value being calculated for the period prior to the maturity date on the basis of the interest rate specified in the contract for accumulating the net considerations to determine maturity value.
(c) For contracts that do not provide any death benefits before commencement of any annuity payments, the present values shall be calculated on the basis of the interest rate and the mortality table specified in the contract for determining the maturity value of the paid-up annuity benefit.
(d) In no event shall the present value of a paid-up annuity benefit be less than the minimum nonforfeiture amount at that time.
(10) (a) For the purpose of determining the benefits calculated under Subsections (8) and (9), the maturity date shall be considered to be the latest date permitted by the contract, except that it may not be considered to be later than the later of:
(i) the anniversary of the contract next following the annuitant's 70th birthday; or
(ii) the tenth anniversary of the contract.
(b) For a contract that provides cash surrender benefits, the cash surrender value on or past the maturity date shall be equal to the amount used to determine the annuity benefit payments.
(c) A surrender charge may not be imposed on or past maturity.
(11) Any contract that does not provide cash surrender benefits or does not provide death benefits at least equal to the minimum nonforfeiture amount before the commencement of any annuity payments shall include a statement in a prominent place in the contract that these benefits are not provided.
(12) Any paid-up annuity, cash surrender, or death benefits available at any time, other than on the contract anniversary under any contract with fixed scheduled considerations, shall be calculated with allowance for the lapse of time and the payment of any scheduled considerations beyond the beginning of the contract year in which cessation of payment of considerations under the contract occurs.
(13) (a) For any contract that provides, within the same contract by rider or supplemental contract provisions, both annuity benefits and life insurance benefits that are in excess of the greater of cash surrender benefits or a return of the gross considerations with interest, the minimum nonforfeiture benefits shall:
(i) be equal to the sum of:
(A) the minimum nonforfeiture benefits for the annuity portion; and
(B) the minimum nonforfeiture benefits, if any, for the life insurance portion; and
(ii) computed as if each portion were a separate contract.
(b) (i) Notwithstanding Subsections (7), (8), (9), (10), and (12), additional benefits payable, as described in Subsection (13)(b)(ii), and consideration for the additional benefits payable, shall be disregarded in ascertaining, if required by this section:
(A) the minimum nonforfeiture amounts;
(B) paid-up annuity;
(C) cash surrender; and
(D) death benefits.
(ii) For purposes of this Subsection (13), an additional benefit is a benefit payable:
(A) in the event of total and permanent disability;
(B) as reversionary annuity or deferred reversionary annuity benefits; or
(C) as other policy benefits additional to life insurance, endowment, and annuity benefits.
(iii) The inclusion of the additional benefits described in this Subsection (13) may not be required in any paid-up benefits, unless the additional benefits separately would require:
(A) minimum nonforfeiture amounts;
(B) paid-up annuity;
(C) cash surrender; and
(D) death benefits.
(14) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may adopt rules necessary to implement this section, including:
(a) ensuring that any additional reduction under Subsection (5)(c) is consistent with the requirements imposed by Subsection (5)(c); and
(b) providing for adjustments in addition to the adjustments allowed under Subsection (5)(c) to the calculation of minimum nonforfeiture amounts for:
(i) contracts that provide substantive participation in an equity index benefit; and
(ii) other contracts for which the commissioner determines adjustments are justified.
(15) (a) After this section takes effect, any company may file with the commissioner a written notice of its election to comply with this section after a specified date before July 1, 1988.
(b) This section applies to annuity contracts of a company issued on or after the date the company specifies in the notice.
(c) If a company makes no election under Subsection (15)(a), the operative date of this section for such company is July 1, 1988.
Section 367. Section 31A-22-425 is amended to read:
31A-22-425
. Rulemaking authority for standards related to life insurance and annuities.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may make rules to establish standards for any of the following:
(1) if used in connection with the solicitation or sale of life insurance policies and contracts:
(a) a buyer's guide;
(b) a disclosure;
(c) an illustration;
(d) a policy summary; or
(e) a recommendation; and
(2) in a life insurance policy, annuity contract, or life insurance or annuity certificate:
(a) a definition of a term;
(b) a disclosure;
(c) an exclusion; or
(d) a limitation.
Section 368. Section 31A-22-614.5 is amended to read:
31A-22-614.5
. Uniform claims processing.(1) Beginning July 1, 1993, all insurers offering health insurance shall use a uniform claim form and uniform billing and claim codes.
(2) The uniform claim forms and billing codes shall be adopted and approved by the commissioner in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. The commissioner shall consult with the director of the Division of Health Care Financing, the National Uniform Claim Form Task Force, and the National Uniform Billing Committee when adopting the uniform claims and billing codes.
(3) (a) Beginning July 1, 1995, all insurers shall offer compatible systems of electronic billing approved by the commissioner in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. The systems approved by the commissioner may include monitoring and disseminating information concerning eligibility and coverage of individuals.
(b) The commissioner shall regulate any fees charged by insurers to the providers for uniform claim forms or electronic billing.
Section 369. Section 31A-22-625 is amended to read:
31A-22-625
. Catastrophic coverage of mental health conditions.(1) As used in this section:
(a) (i) "Catastrophic mental health coverage" means coverage in a health insurance policy or health maintenance organization contract that does not impose any lifetime limit, annual payment limit, episodic limit, inpatient or outpatient service limit, or maximum out-of-pocket limit that places a greater financial burden on an insured for the evaluation and treatment of a mental health condition than for the evaluation and treatment of a physical health condition.
(ii) "Catastrophic mental health coverage" may include a restriction on cost sharing factors, such as deductibles, copayments, or coinsurance, prior to reaching any maximum out-of-pocket limit.
(iii) "Catastrophic mental health coverage" may include one maximum out-of-pocket limit for physical health conditions and another maximum out-of-pocket limit for mental health conditions, provided that, if separate out-of-pocket limits are established, the out-of-pocket limit for mental health conditions may not exceed the out-of-pocket limit for physical health conditions.
(b) (i) "50/50 mental health coverage" means coverage in a health insurance policy or health maintenance organization contract that pays for at least 50% of covered services for the diagnosis and treatment of mental health conditions.
(ii) "50/50 mental health coverage" may include a restriction on episodic limits, inpatient or outpatient service limits, or maximum out-of-pocket limits.
(c) "Large employer" is as defined in Section 31A-1-301.
(d) (i) "Mental health condition" means any condition or disorder involving mental illness that falls under any of the diagnostic categories listed in the Diagnostic and Statistical Manual, as periodically revised.
(ii) "Mental health condition" does not include the following when diagnosed as the primary or substantial reason or need for treatment:
(A) marital or family problem;
(B) social, occupational, religious, or other social maladjustment;
(C) conduct disorder;
(D) chronic adjustment disorder;
(E) psychosexual disorder;
(F) chronic organic brain syndrome;
(G) personality disorder;
(H) specific developmental disorder or learning disability; or
(I) mental retardation.
(e) "Small employer" is as defined in Section 31A-1-301.
(2) (a) At the time of purchase and renewal, an insurer shall offer to each small employer that it insures or seeks to insure a choice between catastrophic mental health coverage and 50/50 mental health coverage.
(b) In addition to Subsection (2)(a), an insurer may offer to provide:
(i) catastrophic mental health coverage, 50/50 mental health coverage, or both at levels that exceed the minimum requirements of this section; or
(ii) coverage that excludes benefits for mental health conditions.
(c) A small employer may, at its option, choose either catastrophic mental health coverage, 50/50 mental health coverage, or coverage offered under Subsection (2)(b), regardless of the employer's previous coverage for mental health conditions.
(d) An insurer is exempt from the 30% index rating restriction in Subsection 31A-30-106(1)(b) and, for the first year only that catastrophic mental health coverage is chosen, the 15% annual adjustment restriction in Subsection 31A-30-106(1)(c)(ii), for any small employer with 20 or less enrolled employees who chooses coverage that meets or exceeds catastrophic mental health coverage.
(3) (a) At the time of purchase and renewal, an insurer shall offer catastrophic mental health coverage to each large employer that it insures or seeks to insure.
(b) In addition to Subsection (3)(a), an insurer may offer to provide catastrophic mental health coverage at levels that exceed the minimum requirements of this section.
(c) A large employer may, at its option, choose either catastrophic mental health coverage, coverage that excludes benefits for mental health conditions, or coverage offered under Subsection (3)(b).
(4) (a) An insurer may provide catastrophic mental health coverage through a managed care organization or system in a manner consistent with the provisions in Chapter 8, Health Maintenance Organizations and Limited Health Plans, regardless of whether the policy or contract uses a managed care organization or system for the treatment of physical health conditions.
(b) (i) Notwithstanding any other provision of this title, an insurer may:
(A) establish a closed panel of providers for catastrophic mental health coverage; and
(B) refuse to provide any benefit to be paid for services rendered by a nonpanel provider unless:
(I) the insured is referred to a nonpanel provider with the prior authorization of the insurer; and
(II) the nonpanel provider agrees to follow the insurer's protocols and treatment guidelines.
(ii) If an insured receives services from a nonpanel provider in the manner permitted by Subsection (4)(b)(i)(B), the insurer shall reimburse the insured for not less than 75% of the average amount paid by the insurer for comparable services of panel providers under a noncapitated arrangement who are members of the same class of health care providers.
(iii) Nothing in this Subsection (4)(b) may be construed as requiring an insurer to authorize a referral to a nonpanel provider.
(c) To be eligible for catastrophic mental health coverage, a diagnosis or treatment of a mental health condition must be rendered:
(i) by a mental health therapist as defined in Section 58-60-102; or
(ii) in a health care facility licensed or otherwise authorized to provide mental health services pursuant to Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, or Title 62A, Chapter 2, Licensure of Programs and Facilities, that provides a program for the treatment of a mental health condition pursuant to a written plan.
(5) The commissioner may disapprove any policy or contract that provides mental health coverage in a manner that is inconsistent with the provisions of this section.
(6) The commissioner shall:
(a) adopt rules as necessary to ensure compliance with this section; and
(b) provide general figures on the percentage of contracts and policies that include no mental health coverage, 50/50 mental health coverage, catastrophic mental health coverage, and coverage that exceeds the minimum requirements of this section.
(7) The Health and Human Services Interim Committee shall review:
(a) the impact of this section on insurers, employers, providers, and consumers of mental health services before January 1, 2004; and
(b) make a recommendation as to whether the provisions of this section should be modified and whether the cost-sharing requirements for mental health conditions should be the same as for physical health conditions.
(8) (a) An insurer shall offer catastrophic mental health coverage as part of a health maintenance organization contract that is governed by Chapter 8, Health Maintenance Organizations and Limited Health Plans, that is in effect on or after January 1, 2001.
(b) An insurer shall offer catastrophic mental health coverage as a part of a health insurance policy that is not governed by Chapter 8, Health Maintenance Organizations and Limited Health Plans, that is in effect on or after July 1, 2001.
(c) This section does not apply to the purchase or renewal of an individual insurance policy or contract.
(d) Notwithstanding Subsection (8)(c), nothing in this section may be construed as discouraging or otherwise preventing insurers from continuing to provide mental health coverage in connection with an individual policy or contract.
(9) This section shall be repealed in accordance with Section [63-55-231] 63I-1-231.
Section 370. Section 31A-22-1308 is amended to read:
31A-22-1308
. Use of loss history by insurers.(1) For purposes of this section:
(a) "Adverse eligibility or rate decision" means:
(i) declining insurance coverage;
(ii) terminating insurance coverage;
(iii) not renewing insurance coverage; or
(iv) the charging of a higher rate for insurance coverage.
(b) (i) "Loss reporting agency" means any person who regularly engages, in whole or in part, in the business of assembling or collecting information for the primary purpose of providing the information to insurers or insurance producers for insurance transactions including assembling or collecting loss or claims information.
(ii) Notwithstanding Subsection (1)(b)(i), the following persons are not loss reporting agents:
(A) a governmental entity;
(B) an insurer;
(C) an insurance producer;
(D) an insurance consultant;
(E) a medical care institution or professional; or
(F) a peer review committee.
(iii) Notwithstanding Subsection (1)(b)(i), the following are not considered a report from a loss reporting agency:
(A) a report specifically provided for fraud prevention; and
(B) that portion of a report that includes information related to consumer credit behavior.
(iv) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may define by rule what constitutes:
(A) a report specifically provided for fraud prevention; and
(B) information related to consumer credit behavior.
(c) (i) "Score" means a numerical value, categorization, or classification that is:
(A) derived from a statistical tool, modeling system, or method; and
(B) developed to predict the likelihood of future insurance claims.
(ii) A numerical value, categorization, or classification described in Subsection (1)(c)(i) is a score if it is developed to predict the likelihood of future insurance claims regardless of whether it is developed to predict other factors in addition to predicting future insurance claims.
(2) (a) An insurer may not make an adverse eligibility or rate decision related to personal lines insurance in whole or in part on the basis of:
(i) a report by a loss reporting agency of a loss if the loss did not result in the insured requesting the payment of a claim;
(ii) a telephone call or other inquiry by an insured of a loss if the loss did not result in the insured requesting payment of a claim;
(iii) a loss that occurred when real property covered by the personal lines insurance was owned by a person other than the:
(A) insured; or
(B) person seeking insurance; or
(iv) a score if the score is determined in whole or in part on the basis of information described in Subsection (2)(a)(i), (ii), or (iii).
(b) Notwithstanding Subsection (2)(a), an insurer may:
(i) use the information described in Subsection (2)(a)(iii) to require a review of the condition of the premises; and
(ii) make an adverse eligibility or rate decision on the basis of the condition of the premises.
(3) (a) If an insurer uses a score that is derived from information obtained from a loss reporting agency or an insured, the insurer shall file with the department a certification that the method used to derive the score complies with the provisions of Subsection (2)(a)(iv).
(b) the insurer shall file a certification required under Subsection (3)(a) within 30 days of the day on which the score described in Subsection (3)(a) is first used by the insurer.
(c) The department shall classify a certification filed under this Subsection (3) as a protected record under Subsection [63-2-304] 63G-2-305(2) except that the insurer is not required to file the information specified in Section [63-2-308] 63G-2-309.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall make rules providing for the form and procedure of filing the certification required by Subsection (3)(a).
Section 371. Section 31A-23a-104 is amended to read:
31A-23a-104
. Application for individual license -- Application for agency license.(1) This section applies to an initial or renewal license as a:
(a) producer;
(b) limited line producer;
(c) customer service representative;
(d) consultant;
(e) managing general agent; or
(f) reinsurance intermediary.
(2) (a) Subject to Subsection (2)(b), an initial or renewal individual license shall be:
(i) made to the commissioner on forms and in a manner the commissioner prescribes; and
(ii) accompanied by a license fee that is not refunded if the application:
(A) is denied; or
(B) if incomplete, is never completed by the applicant.
(b) An application described in this Subsection (2) shall provide:
(i) information about the applicant's identity;
(ii) the applicant's Social Security number;
(iii) the applicant's personal history, experience, education, and business record;
(iv) whether the applicant is 18 years of age or older;
(v) whether the applicant has committed an act that is a ground for denial, suspension, or revocation as set forth in Section 31A-23a-105 or 31A-23a-111; and
(vi) any other information the commissioner reasonably requires.
(3) The commissioner may require any documents reasonably necessary to verify the information contained in an application filed under this section.
(4) An applicant's Social Security number contained in an application filed under this section is a private record under Section [63-2-302] 63G-2-302.
(5) (a) Subject to Subsection (5)(b), an application for an initial or renewal agency license shall be:
(i) made to the commissioner on forms and in a manner the commissioner prescribes; and
(ii) accompanied by a license fee that is not refunded if the application:
(A) is denied; or
(B) if incomplete, is never completed by the applicant.
(b) An application described in Subsection (5)(a) shall provide:
(i) information about the applicant's identity;
(ii) the applicant's federal employer identification number;
(iii) the designated responsible licensed producer;
(iv) the identity of all owners, partners, officers, and directors;
(v) whether the applicant has committed an act that is a ground for denial, suspension, or revocation as set forth in Section 31A-23a-105 or 31A-23a-111; and
(vi) any other information the commissioner reasonably requires.
Section 372. Section 31A-23a-111 is amended to read:
31A-23a-111
. Revocation, suspension, surrender, lapsing, limiting, or otherwise terminating a license -- Rulemaking for renewal or reinstatement.(1) A license type issued under this chapter remains in force until:
(a) revoked or suspended under Subsection (5);
(b) surrendered to the commissioner and accepted by the commissioner in lieu of administrative action;
(c) the licensee dies or is adjudicated incompetent as defined under:
(i) Title 75, Chapter 5, Part 3, Guardians of Incapacitated Persons; or
(ii) Title 75, Chapter 5, Part 4, Protection of Property of Persons Under Disability and Minors;
(d) lapsed under Section 31A-23a-113; or
(e) voluntarily surrendered.
(2) The following may be reinstated within one year after the day on which the license is inactivated:
(a) a lapsed license; or
(b) a voluntarily surrendered license.
(3) Unless otherwise stated in the written agreement for the voluntary surrender of a license, submission and acceptance of a voluntary surrender of a license does not prevent the department from pursuing additional disciplinary or other action authorized under:
(a) this title; or
(b) rules made under this title in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) A line of authority issued under this chapter remains in force until:
(a) the qualifications pertaining to a line of authority are no longer met by the licensee; or
(b) the supporting license type:
(i) is revoked or suspended under Subsection (5); or
(ii) is surrendered to the commissioner and accepted by the commissioner in lieu of administrative action.
(5) (a) If the commissioner makes a finding under Subsection (5)(b), after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commissioner may:
(i) revoke:
(A) a license; or
(B) a line of authority;
(ii) suspend for a specified period of 12 months or less:
(A) a license; or
(B) a line of authority; or
(iii) limit in whole or in part:
(A) a license; or
(B) a line of authority.
(b) The commissioner may take an action described in Subsection (5)(a) if the commissioner finds that the licensee:
(i) is unqualified for a license or line of authority under Sections 31A-23a-104 and 31A-23a-105;
(ii) has violated:
(A) an insurance statute;
(B) a rule that is valid under Subsection 31A-2-201(3); or
(C) an order that is valid under Subsection 31A-2-201(4);
(iii) is insolvent or the subject of receivership, conservatorship, rehabilitation, or other delinquency proceedings in any state;
(iv) fails to pay any final judgment rendered against the person in this state within 60 days after the day on which the judgment became final;
(v) fails to meet the same good faith obligations in claims settlement that is required of admitted insurers;
(vi) is affiliated with and under the same general management or interlocking directorate or ownership as another insurance producer that transacts business in this state without a license;
(vii) refuses:
(A) to be examined; or
(B) to produce its accounts, records, and files for examination;
(viii) has an officer who refuses to:
(A) give information with respect to the insurance producer's affairs; or
(B) perform any other legal obligation as to an examination;
(ix) provides information in the license application that is:
(A) incorrect;
(B) misleading;
(C) incomplete; or
(D) materially untrue;
(x) has violated any insurance law, valid rule, or valid order of another state's insurance department;
(xi) has obtained or attempted to obtain a license through misrepresentation or fraud;
(xii) has improperly withheld, misappropriated, or converted any monies or properties received in the course of doing insurance business;
(xiii) has intentionally misrepresented the terms of an actual or proposed:
(A) insurance contract; or
(B) application for insurance;
(xiv) has been convicted of a felony;
(xv) has admitted or been found to have committed any insurance unfair trade practice or fraud;
(xvi) in the conduct of business in this state or elsewhere has:
(A) used fraudulent, coercive, or dishonest practices; or
(B) demonstrated incompetence, untrustworthiness, or financial irresponsibility;
(xvii) has had an insurance license, or its equivalent, denied, suspended, or revoked in any other state, province, district, or territory;
(xviii) has forged another's name to:
(A) an application for insurance; or
(B) a document related to an insurance transaction;
(xix) has improperly used notes or any other reference material to complete an examination for an insurance license;
(xx) has knowingly accepted insurance business from an individual who is not licensed;
(xxi) has failed to comply with an administrative or court order imposing a child support obligation;
(xxii) has failed to:
(A) pay state income tax; or
(B) comply with any administrative or court order directing payment of state income tax;
(xxiii) has violated or permitted others to violate the federal Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. Secs. 1033 and 1034; or
(xxiv) has engaged in methods and practices in the conduct of business that endanger the legitimate interests of customers and the public.
(c) For purposes of this section, if a license is held by an agency, both the agency itself and any natural person named on the license are considered to be the holders of the license.
(d) If a natural person named on the agency license commits any act or fails to perform any duty that is a ground for suspending, revoking, or limiting the natural person's license, the commissioner may suspend, revoke, or limit the license of:
(i) the natural person;
(ii) the agency, if the agency:
(A) is reckless or negligent in its supervision of the natural person; or
(B) knowingly participated in the act or failure to act that is the ground for suspending, revoking, or limiting the license; or
(iii) (A) the natural person; and
(B) the agency if the agency meets the requirements of Subsection (5)(d)(ii).
(6) A licensee under this chapter is subject to the penalties for acting as a licensee without a license if:
(a) the licensee's license is:
(i) revoked;
(ii) suspended;
(iii) limited;
(iv) surrendered in lieu of administrative action;
(v) lapsed; or
(vi) voluntarily surrendered; and
(b) the licensee:
(i) continues to act as a licensee; or
(ii) violates the terms of the license limitation.
(7) A licensee under this chapter shall immediately report to the commissioner:
(a) a revocation, suspension, or limitation of the person's license in any other state, District of Columbia, or territory of the United States;
(b) the imposition of a disciplinary sanction imposed on that person by any other state, District of Columbia, or territory of the United States; or
(c) a judgment or injunction entered against that person on the basis of conduct involving:
(i) fraud;
(ii) deceit;
(iii) misrepresentation; or
(iv) a violation of an insurance law or rule.
(8) (a) An order revoking a license under Subsection (5) or an agreement to surrender a license in lieu of administrative action may specify a time, not to exceed five years, within which the former licensee may not apply for a new license.
(b) If no time is specified in the order or agreement described in Subsection (8)(a), the former licensee may not apply for a new license for five years from the day on which the order or agreement is made without the express approval by the commissioner.
(9) The commissioner shall promptly withhold, suspend, restrict, or reinstate the use of a license issued under this part if so ordered by a court.
(10) The commissioner shall by rule prescribe the license renewal and reinstatement procedures in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 373. Section 31A-23a-112 is amended to read:
31A-23a-112
. Probation -- Grounds for revocation.(1) The commissioner may place a licensee on probation for a period not to exceed 24 months as follows:
(a) after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for any circumstances that would justify a suspension under Section 31A-23a-111; or
(b) at the issuance of a new license:
(i) with an admitted violation under 18 U.S.C. Sections 1033 and 1034; or
(ii) with a response to background information questions on a new license application indicating that:
(A) the person has been convicted of a crime, that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation;
(B) the person is currently charged with a crime, that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation regardless of whether adjudication is withheld;
(C) the person has been involved in an administrative proceeding regarding any professional or occupational license; or
(D) any business in which the person is or was an owner, partner, officer, or director has been involved in an administrative proceeding regarding any professional or occupational license.
(2) The commissioner may place a licensee on probation for a specified period no longer than 24 months if the licensee has admitted to a violation under 18 U.S.C. Sections 1033 and 1034.
(3) The probation order shall state the conditions for retention of the license, which shall be reasonable.
(4) Any violation of the probation is grounds for revocation pursuant to any proceeding authorized under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 374. Section 31A-23a-115 is amended to read:
31A-23a-115
. Appointment of individual and agency insurance producer, limited line producer, or managing general agent -- Reports and lists.(1) (a) An insurer shall appoint a natural person or agency that has an insurance producer, limited line producer, or managing general agent license to act as an insurance producer, limited line producer, or managing general agent on the insurer's behalf prior to any producer, limited line producer, or managing general agent doing business for the insurer in this state.
(b) An insurer shall report to the commissioner, at intervals and in the form the commissioner establishes by rule:
(i) all new appointments; and
(ii) all terminations of appointments.
(2) (a) (i) An insurer shall report to the commissioner the cause of termination of an appointment.
(ii) The information provided to the commissioner under this Subsection (2) is a private record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) An insurer is immune from civil action, civil penalty, or damages if the insurer complies in good faith with this Subsection (2) in reporting to the commissioner the cause of termination of an appointment.
(c) Notwithstanding any other provision in this section, an insurer is not immune from any action or resulting penalty imposed on the reporting insurer as a result of proceedings brought by or on behalf of the department if the action is based on evidence other than the report submitted in compliance with this Subsection (2).
(3) If an insurer appoints an agency, the insurer need not appoint, report, or pay appointment reporting fees for natural persons designated on the agency's license under Section 31A-23a-302.
(4) If an insurer lists a licensee in a report submitted under Subsection (2), there is a rebuttable presumption that in placing a risk with the insurer the appointed licensee or any of the licensee's licensed employees acted on behalf of the insurer.
Section 375. Section 31A-23a-202 is amended to read:
31A-23a-202
. Continuing education requirements.(1) Pursuant to this section, the commissioner shall by rule prescribe the continuing education requirements for a producer and a consultant.
(2) (a) The commissioner may not state a continuing education requirement in terms of formal education.
(b) The commissioner may state a continuing education requirement in terms of classroom hours, or their equivalent, of insurance-related instruction received.
(c) Insurance-related formal education may be a substitute, in whole or in part, for classroom hours, or their equivalent, required under Subsection (2)(b).
(3) (a) The commissioner shall impose continuing education requirements in accordance with a two-year licensing period in which the licensee meets the requirements of this Subsection (3).
(b) (i) Except as provided in this section, the continuing education requirements shall require:
(A) that a licensee complete 24 credit hours of continuing education for every two-year licensing period;
(B) that three of the 24 credit hours described in Subsection (3)(b)(i)(A) be ethics courses; and
(C) that the licensee complete at least half of the required hours through classroom hours of insurance-related instruction.
(ii) The hours not completed through classroom hours in accordance with Subsection (3)(b)(i)(C) may be obtained through:
(A) home study;
(B) video recording;
(C) experience credit; or
(D) other methods provided by rule.
(iii) (A) Notwithstanding Subsections (3)(b)(i)(A) and (B), a title insurance producer is required to complete 12 credit hours of continuing education for every two-year licensing period, with three of the credit hours being ethics courses unless the title insurance producer has been licensed in this state as a title insurance producer for 20 or more consecutive years.
(B) If a title insurance producer has been licensed in this state as a title insurance producer for 20 or more consecutive years, the title insurance producer is required to complete six credit hours of continuing education for every two-year licensing period, with three of the credit hours being ethics courses.
(C) Notwithstanding Subsection (3)(b)(iii)(A) or (B), a title insurance producer is considered to have met the continuing education requirements imposed under Subsection (3)(b)(iii)(A) or (B) if the title insurance producer:
(I) is an active member in good standing with the Utah State Bar;
(II) is in compliance with the continuing education requirements of the Utah State Bar; and
(III) if requested by the department, provides the department evidence that the title insurance producer complied with the continuing education requirements of the Utah State Bar.
(c) A licensee may obtain continuing education hours at any time during the two-year licensing period.
(d) (i) Beginning May 3, 1999, a licensee is exempt from continuing education requirements under this section if:
(A) the licensee was first licensed before April 1, 1970;
(B) the licensee requests an exemption from the department; and
(C) the department approves the exemption.
(ii) If the department approves the exemption under Subsection (3)(d)(i), the licensee is not required to apply again for the exemption.
(e) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall, by rule:
(i) publish a list of insurance professional designations whose continuing education requirements can be used to meet the requirements for continuing education under Subsection (3)(b); and
(ii) authorize continuing education providers and professional producer or consultant associations to:
(A) offer qualified programs for all license types and lines of authority on a geographically accessible basis; and
(B) collect reasonable fees for funding and administration of the continuing education program, subject to the review and approval of the commissioner.
(iii) The fees permitted under Subsection (3)(e)(ii)(B) that are charged for attendance at a professional producer or consultant association program may be less for an association member, based on the member's affiliation expense, but shall preserve the right of a nonmember to attend without affiliation.
(4) The commissioner shall approve continuing education providers and continuing education courses that satisfy the requirements of this section.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall by rule set the processes and procedures for continuing education provider registration and course approval.
(6) The requirements of this section apply only to producers or consultants who are natural persons.
(7) A nonresident producer or consultant is considered to have satisfied this state's continuing education requirements if the nonresident producer or consultant satisfies the nonresident producer's or consultant's home state's continuing education requirements for a licensed insurance producer or consultant.
(8) A producer or consultant subject to this section shall keep documentation of completing the continuing education requirements of this section for two years after the end of the two-year licensing period to which the continuing education applies.
Section 376. Section 31A-23a-302 is amended to read:
31A-23a-302
. Agency designations.(1) An agency shall designate a natural person that has a producer, limited line producer, customer service representative, consultant, managing general agent, or reinsurance intermediary license to act on its behalf prior to the licensee doing business for the agency.
(2) An agency shall report to the commissioner, at intervals and in the form the commissioner establishes by rule:
(a) all new designations; and
(b) all terminated designations.
(3) (a) An agency licensed under this chapter shall report to the commissioner the cause of termination of a designation.
(b) The information provided the commissioner under Subsection (3)(a) is a private record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(c) An agency is immune from civil action, civil penalty, or damages if the agency complies in good faith with this Subsection (3) in reporting to the commissioner the cause of termination of a designation.
(d) Notwithstanding any other provision in this section, an agency is not immune from any action or resulting penalty imposed on the reporting agency as a result of proceedings brought by or on behalf of the department if the action is based on evidence other than the report submitted in compliance with this Subsection (3).
(4) An agency licensed under this chapter may act in the capacities for which it is licensed only through natural persons who are licensed under this chapter to act in the same capacities.
(5) An agency licensed under this chapter shall report to the commissioner by rule the name of at least one natural person who has authority to act on behalf of the agency in all matters pertaining to compliance with this title and orders of the commissioner.
(6) If an agency designates a licensee in reports submitted under Subsection (2), there is a rebuttable presumption that the designated licensee acted on behalf of the agency.
Section 377. Section 31A-23a-402 is amended to read:
31A-23a-402
. Unfair marketing practices -- Communication -- Inducement -- Unfair discrimination -- Coercion or intimidation -- Restriction on choice.(1) (a) (i) Any of the following may not make or cause to be made any communication that contains false or misleading information, relating to an insurance product or contract, any insurer, or any licensee under this title, including information that is false or misleading because it is incomplete:
(A) a person who is or should be licensed under this title;
(B) an employee or producer of a person described in Subsection (1)(a)(i)(A);
(C) a person whose primary interest is as a competitor of a person licensed under this title; and
(D) a person on behalf of any of the persons listed in this Subsection (1)(a)(i).
(ii) As used in this Subsection (1), "false or misleading information" includes:
(A) assuring the nonobligatory payment of future dividends or refunds of unused premiums in any specific or approximate amounts, but reporting fully and accurately past experience is not false or misleading information; and
(B) with intent to deceive a person examining it:
(I) filing a report;
(II) making a false entry in a record; or
(III) wilfully refraining from making a proper entry in a record.
(iii) A licensee under this title may not:
(A) use any business name, slogan, emblem, or related device that is misleading or likely to cause the insurer or other licensee to be mistaken for another insurer or other licensee already in business; or
(B) use any advertisement or other insurance promotional material that would cause a reasonable person to mistakenly believe that a state or federal government agency:
(I) is responsible for the insurance sales activities of the person;
(II) stands behind the credit of the person;
(III) guarantees any returns on insurance products of or sold by the person; or
(IV) is a source of payment of any insurance obligation of or sold by the person.
(iv) A person who is not an insurer may not assume or use any name that deceptively implies or suggests that person is an insurer.
(v) A person other than persons licensed as health maintenance organizations under Chapter 8 may not use the term "Health Maintenance Organization" or "HMO" in referring to itself.
(b) A licensee's violation creates a rebuttable presumption that the violation was also committed by the insurer if:
(i) the licensee under this title distributes cards or documents, exhibits a sign, or publishes an advertisement that violates Subsection (1)(a), with reference to a particular insurer:
(A) that the licensee represents; or
(B) for whom the licensee processes claims; and
(ii) the cards, documents, signs, or advertisements are supplied or approved by that insurer.
(2) (a) (i) A licensee under this title, or an officer or employee of a licensee may not induce any person to enter into or continue an insurance contract or to terminate an existing insurance contract by offering benefits not specified in the policy to be issued or continued, including premium or commission rebates.
(ii) An insurer may not make or knowingly allow any agreement of insurance that is not clearly expressed in the policy to be issued or renewed.
(iii) This Subsection (2)(a) does not preclude:
(A) an insurer from reducing premiums because of expense savings;
(B) an insurer from providing to a policyholder or insured one or more incentives to participate in programs or activities designed to reduce claims or claim expenses;
(C) the usual kinds of social courtesies not related to particular transactions; or
(D) an insurer from receiving premiums under an installment payment plan.
(iv) The commissioner may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to define what constitutes an incentive described in Subsection (2)(a)(iii)(B).
(b) A licensee under this title may not absorb the tax under Section 31A-3-301.
(c) (i) A title insurer or producer or any officer or employee of either may not pay, allow, give, or offer to pay, allow, or give, directly or indirectly, as an inducement to obtaining any title insurance business:
(A) any rebate, reduction, or abatement of any rate or charge made incident to the issuance of the title insurance;
(B) any special favor or advantage not generally available to others; or
(C) any money or other consideration, except if approved under Section 31A-2-405; or
(D) material inducement.
(ii) "Charge made incident to the issuance of the title insurance" includes escrow charges, and any other services that are prescribed in rule by the Title and Escrow Commission after consultation with the commissioner and subject to Section 31A-2-404.
(iii) An insured or any other person connected, directly or indirectly, with the transaction, including a mortgage lender, real estate broker, builder, attorney, or any officer, employee, or agent of any of them, may not knowingly receive or accept, directly or indirectly, any benefit referred to in Subsection (2)(c)(i).
(3) (a) An insurer may not unfairly discriminate among policyholders by charging different premiums or by offering different terms of coverage, except on the basis of classifications related to the nature and the degree of the risk covered or the expenses involved.
(b) Rates are not unfairly discriminatory if they are averaged broadly among persons insured under a group, blanket, or franchise policy, and the terms of those policies are not unfairly discriminatory merely because they are more favorable than in similar individual policies.
(4) (a) This Subsection (4) applies to:
(i) a person who is or should be licensed under this title;
(ii) an employee of that licensee or person who should be licensed;
(iii) a person whose primary interest is as a competitor of a person licensed under this title; and
(iv) one acting on behalf of any person described in Subsections (4)(a)(i) through (iii).
(b) A person described in Subsection (4)(a) may not commit or enter into any agreement to participate in any act of boycott, coercion, or intimidation that:
(i) tends to produce:
(A) an unreasonable restraint of the business of insurance; or
(B) a monopoly in that business; or
(ii) results in an applicant purchasing or replacing an insurance contract.
(5) (a) (i) Subject to Subsection (5)(a)(ii), a person may not restrict in the choice of an insurer or licensee under this chapter, another person who is required to pay for insurance as a condition for the conclusion of a contract or other transaction or for the exercise of any right under a contract.
(ii) A person requiring coverage may reserve the right to disapprove the insurer or the coverage selected on reasonable grounds.
(b) The form of corporate organization of an insurer authorized to do business in this state is not a reasonable ground for disapproval, and the commissioner may by rule specify additional grounds that are not reasonable. This Subsection (5) does not bar an insurer from declining an application for insurance.
(6) A person may not make any charge other than insurance premiums and premium financing charges for the protection of property or of a security interest in property, as a condition for obtaining, renewing, or continuing the financing of a purchase of the property or the lending of money on the security of an interest in the property.
(7) (a) A licensee under this title may not refuse or fail to return promptly all indicia of agency to the principal on demand.
(b) A licensee whose license is suspended, limited, or revoked under Section 31A-2-308, 31A-23a-111, or 31A-23a-112 may not refuse or fail to return the license to the commissioner on demand.
(8) (a) A person may not engage in any other unfair method of competition or any other unfair or deceptive act or practice in the business of insurance, as defined by the commissioner by rule, after a finding that they:
(i) are misleading;
(ii) are deceptive;
(iii) are unfairly discriminatory;
(iv) provide an unfair inducement; or
(v) unreasonably restrain competition.
(b) Notwithstanding Subsection (8)(a), for purpose of the title insurance industry, the Title and Escrow Commission shall make rules, subject to Section 31A-2-404, that define any other unfair method of competition or any other unfair or deceptive act or practice after a finding that they:
(i) are misleading;
(ii) are deceptive;
(iii) are unfairly discriminatory;
(iv) provide an unfair inducement; or
(v) unreasonably restrain competition.
Section 378. Section 31A-23a-417 is amended to read:
31A-23a-417
. Financial services insurance activities regulation.(1) It is the intent of the Legislature that the regulation of insurance activities of any person in this state be based on functional regulation principles established in the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102.
(2) The insurance activities of any person in this state shall be functionally regulated by the commissioner subject to Sections 104, 301-308, 501-507, and 509 of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102.
(3) Under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may adopt rules consistent with Section 104(d) of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102, and the functional regulation of insurance activities of any person otherwise subject to the jurisdiction of the commissioner in this state described in Subsection (2).
(4) The commissioner shall consult and coordinate with the commissioner of the Department of Financial Institutions and the director of the Division of Securities for the purpose of assuring, to the extent possible, that the rules prescribed by the department are consistent and comparable with federal regulations governing the insurance, banking, and securities industries.
Section 379. Section 31A-23a-809 is amended to read:
31A-23a-809
. Penalties and liabilities.(1) A reinsurance intermediary, insurer, or reinsurer found by the commissioner, after a hearing conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to be in violation of any provisions of this title, shall:
(a) for each separate violation, pay a civil penalty in an amount not exceeding $5,000;
(b) be subject to revocation or suspension of its license; and
(c) if a violation was committed by the reinsurance intermediary, the reinsurance intermediary shall make restitution to the insurer, reinsurer, rehabilitator, or liquidator of the insurer or reinsurer for the net losses incurred by the insurer or reinsurer attributable to the violation.
(2) Nothing contained in this section affects the right of the commissioner to impose any other penalties provided in this title.
(3) Nothing contained in this part is intended to, or in any manner limits or restricts the rights of policyholders, claimants, creditors, or other third parties; nor does it confer any rights to such persons.
Section 380. Section 31A-25-202 is amended to read:
31A-25-202
. Application for license.(1) (a) An application for a license as a third party administrator shall be:
(i) made to the commissioner on forms and in a manner the commissioner prescribes; and
(ii) accompanied by the applicable fee, which is not refundable if the application is denied.
(b) The application for a license as a third party administrator shall:
(i) state the applicant's:
(A) Social Security number; or
(B) federal employer identification number;
(ii) provide information about:
(A) the applicant's identity;
(B) the applicant's personal history, experience, education, and business record;
(C) if the applicant is a natural person, whether the applicant is 18 years of age or older; and
(D) whether the applicant has committed an act that is a ground for denial, suspension, or revocation as set forth in Section 31A-25-208; and
(iii) any other information as the commissioner reasonably requires.
(2) The commissioner may require documents reasonably necessary to verify the information contained in the application.
(3) An applicant's Social Security number contained in an application filed under this section is a private record under Section [63-2-302] 63G-2-302.
Section 381. Section 31A-25-208 is amended to read:
31A-25-208
. Revocation, suspension, surrender, lapsing, limiting, or otherwise terminating a license -- Rulemaking for renewal and reinstatement.(1) A license type issued under this chapter remains in force until:
(a) revoked or suspended under Subsection (4);
(b) surrendered to the commissioner and accepted by the commissioner in lieu of administrative action;
(c) the licensee dies or is adjudicated incompetent as defined under:
(i) Title 75, Chapter 5, Part 3, Guardians of Incapacitated Persons; or
(ii) Title 75, Chapter 5, Part 4, Protection of Property of Persons Under Disability and Minors;
(d) lapsed under Section 31A-25-210; or
(e) voluntarily surrendered.
(2) The following may be reinstated within one year after the day on which the license is inactivated:
(a) a lapsed license; or
(b) a voluntarily surrendered license.
(3) Unless otherwise stated in the written agreement for the voluntary surrender of a license, submission and acceptance of a voluntary surrender of a license does not prevent the department from pursuing additional disciplinary or other action authorized under:
(a) this title; or
(b) rules made under this title in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) (a) If the commissioner makes a finding under Subsection (4)(b), after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commissioner may:
(i) revoke a license;
(ii) suspend a license for a specified period of 12 months or less; or
(iii) limit a license in whole or in part.
(b) The commissioner may take an action described in Subsection (4)(a) if the commissioner finds that the licensee:
(i) is unqualified for a license under Sections 31A-25-202 and 31A-25-203;
(ii) has violated:
(A) an insurance statute;
(B) a rule that is valid under Subsection 31A-2-201(3); or
(C) an order that is valid under Subsection 31A-2-201(4);
(iii) is insolvent or the subject of receivership, conservatorship, rehabilitation, or other delinquency proceedings in any state;
(iv) fails to pay any final judgment rendered against the person in this state within 60 days after the day on which the judgment became final;
(v) fails to meet the same good faith obligations in claims settlement that is required of admitted insurers;
(vi) is affiliated with and under the same general management or interlocking directorate or ownership as another third party administrator that transacts business in this state without a license;
(vii) refuses:
(A) to be examined; or
(B) to produce its accounts, records, and files for examination;
(viii) has an officer who refuses to:
(A) give information with respect to the third party administrator's affairs; or
(B) perform any other legal obligation as to an examination;
(ix) provides information in the license application that is:
(A) incorrect;
(B) misleading;
(C) incomplete; or
(D) materially untrue;
(x) has violated an insurance law, valid rule, or valid order of another state's insurance department;
(xi) has obtained or attempted to obtain a license through misrepresentation or fraud;
(xii) has improperly withheld, misappropriated, or converted any monies or properties received in the course of doing insurance business;
(xiii) has intentionally misrepresented the terms of an actual or proposed:
(A) insurance contract; or
(B) application for insurance;
(xiv) has been convicted of a felony;
(xv) has admitted or been found to have committed any insurance unfair trade practice or fraud;
(xvi) in the conduct of business in this state or elsewhere has:
(A) used fraudulent, coercive, or dishonest practices; or
(B) demonstrated incompetence, untrustworthiness, or financial irresponsibility;
(xvii) has had an insurance license or its equivalent, denied, suspended, or revoked in any other state, province, district, or territory;
(xviii) has forged another's name to:
(A) an application for insurance; or
(B) a document related to an insurance transaction;
(xix) has improperly used notes or any other reference material to complete an examination for an insurance license;
(xx) has knowingly accepted insurance business from an individual who is not licensed;
(xxi) has failed to comply with an administrative or court order imposing a child support obligation;
(xxii) has failed to:
(A) pay state income tax; or
(B) comply with any administrative or court order directing payment of state income tax;
(xxiii) has violated or permitted others to violate the federal Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. Secs. 1033 and 1034; or
(xxiv) has engaged in methods and practices in the conduct of business that endanger the legitimate interests of customers and the public.
(c) For purposes of this section, if a license is held by an agency, both the agency itself and any natural person named on the license are considered to be the holders of the license.
(d) If a natural person named on the agency license commits any act or fails to perform any duty that is a ground for suspending, revoking, or limiting the natural person's license, the commissioner may suspend, revoke, or limit the license of:
(i) the natural person;
(ii) the agency if the agency:
(A) is reckless or negligent in its supervision of the natural person; or
(B) knowingly participated in the act or failure to act that is the ground for suspending, revoking, or limiting the license; or
(iii) (A) the natural person; and
(B) the agency if the agency meets the requirements of Subsection (4)(d)(ii).
(5) A licensee under this chapter is subject to the penalties for acting as a licensee without a license if:
(a) the licensee's license is:
(i) revoked;
(ii) suspended;
(iii) limited;
(iv) surrendered in lieu of administrative action;
(v) lapsed; or
(vi) voluntarily surrendered; and
(b) the licensee:
(i) continues to act as a licensee; or
(ii) violates the terms of the license limitation.
(6) A licensee under this chapter shall immediately report to the commissioner:
(a) a revocation, suspension, or limitation of the person's license in any other state, the District of Columbia, or a territory of the United States;
(b) the imposition of a disciplinary sanction imposed on that person by any other state, the District of Columbia, or a territory of the United States; or
(c) a judgment or injunction entered against the person on the basis of conduct involving:
(i) fraud;
(ii) deceit;
(iii) misrepresentation; or
(iv) a violation of an insurance law or rule.
(7) (a) An order revoking a license under Subsection (4) or an agreement to surrender a license in lieu of administrative action may specify a time, not to exceed five years, within which the former licensee may not apply for a new license.
(b) If no time is specified in the order or agreement described in Subsection (7)(a), the former licensee may not apply for a new license for five years from the day on which the order or agreement is made without the express approval of the commissioner.
(8) The commissioner shall promptly withhold, suspend, restrict, or reinstate the use of a license issued under this part if so ordered by the court.
(9) The commissioner shall by rule prescribe the license renewal and reinstatement procedures in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 382. Section 31A-25-209 is amended to read:
31A-25-209
. Probation -- Grounds for revocation.(1) The commissioner may place a licensee on probation for a period not to exceed 24 months as follows:
(a) after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for any circumstances that would justify a suspension under Section 31A-25-208; or
(b) at the issuance of a new license:
(i) with an admitted violation under 18 U.S.C. Sections 1033 and 1034; or
(ii) with a response to a background information question on a new license application indicating that:
(A) the person has been convicted of a crime that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation;
(B) the person is currently charged with a crime that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation regardless of whether adjudication is withheld;
(C) the person has been involved in an administrative proceeding regarding any professional or occupational license; or
(D) any business in which the person is or was an owner, partner, officer, or director has been involved in an administrative proceeding regarding any professional or occupational license.
(2) The commissioner may place a licensee on probation for a specified period no longer than 24 months if the licensee has admitted to a violation under 18 U.S.C. Sections 1033 and 1034.
(3) A probation order under this section shall state the conditions for retention of the license, which shall be reasonable.
(4) A violation of the probation is grounds for revocation pursuant to any proceeding authorized under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 383. Section 31A-26-202 is amended to read:
31A-26-202
. Application for license.(1) (a) The application for a license as an independent adjuster or public adjuster shall be:
(i) made to the commissioner on forms and in a manner the commissioner prescribes; and
(ii) accompanied by the applicable fee, which is not refunded if the application is denied.
(b) The application shall provide:
(i) information about the applicant's identity, including:
(A) the applicant's:
(I) Social Security number; or
(II) federal employer identification number;
(B) the applicant's personal history, experience, education, and business record;
(C) if the applicant is a natural person, whether the applicant is 18 years of age or older; and
(D) whether the applicant has committed an act that is a ground for denial, suspension, or revocation as set forth in Section 31A-25-208; and
(ii) any other information as the commissioner reasonably requires.
(2) The commissioner may require documents reasonably necessary to verify the information contained in the application.
(3) An applicant's Social Security number contained in an application filed under this section is a private record under Section [63-2-302] 63G-2-302.
Section 384. Section 31A-26-206 is amended to read:
31A-26-206
. Continuing education requirements.(1) Pursuant to this section, the commissioner shall by rule prescribe continuing education requirements for each class of license under Section 31A-26-204.
(2) (a) The commissioner shall impose continuing education requirements in accordance with a two-year licensing period in which the licensee meets the requirements of this Subsection (2).
(b) (i) Except as provided in Subsection (2)(b)(iii), the continuing education requirements shall require:
(A) that a licensee complete 24 credit hours of continuing education for every two-year licensing period;
(B) that three of the 24 credit hours described in Subsection (2)(b)(i)(A) be ethics courses; and
(C) that the licensee complete at least half of the required hours through classroom hours of insurance-related instruction.
(ii) The hours not completed through classroom hours in accordance with Subsection (2)(b)(i)(C) may be obtained through:
(A) home study;
(B) video recording;
(C) experience credit; or
(D) other methods provided by rule.
(iii) Notwithstanding Subsections (2)(b)(i)(A) and (B), a title insurance adjuster is required to complete 12 credit hours of continuing education for every two-year licensing period, with three of the credit hours being ethics courses.
(c) A licensee may obtain continuing education hours at any time during the two-year licensing period.
(d) (i) Beginning May 3, 1999, a licensee is exempt from the continuing education requirements of this section if:
(A) the licensee was first licensed before April 1, 1970;
(B) the licensee requests an exemption from the department; and
(C) the department approves the exemption.
(ii) If the department approves the exemption under Subsection (2)(d)(i), the licensee is not required to apply again for the exemption.
(e) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall by rule:
(i) publish a list of insurance professional designations whose continuing education requirements can be used to meet the requirements for continuing education under Subsection (2)(b); and
(ii) authorize professional adjuster associations to:
(A) offer qualified programs for all classes of licenses on a geographically accessible basis; and
(B) collect reasonable fees for funding and administration of the continuing education programs, subject to the review and approval of the commissioner.
(f) (i) The fees permitted under Subsection (2)(e)(ii)(B) that are charged to fund and administer a program shall reasonably relate to the costs of administering the program.
(ii) Nothing in this section shall prohibit a provider of continuing education programs or courses from charging fees for attendance at courses offered for continuing education credit.
(iii) The fees permitted under Subsection (2)(e)(ii)(B) that are charged for attendance at an association program may be less for an association member, based on the member's affiliation expense, but shall preserve the right of a nonmember to attend without affiliation.
(3) The requirements of this section apply only to licensees who are natural persons.
(4) The requirements of this section do not apply to members of the Utah State Bar.
(5) The commissioner shall designate courses that satisfy the requirements of this section, including those presented by insurers.
(6) A nonresident adjuster is considered to have satisfied this state's continuing education requirements if:
(a) the nonresident adjuster satisfies the nonresident producer's home state's continuing education requirements for a licensed insurance adjuster; and
(b) on the same basis the nonresident adjuster's home state considers satisfaction of Utah's continuing education requirements for a producer as satisfying the continuing education requirements of the home state.
(7) A licensee subject to this section shall keep documentation of completing the continuing education requirements of this section for two years after the end of the two-year licensing period to which the continuing education requirement applies.
Section 385. Section 31A-26-213 is amended to read:
31A-26-213
. Revocation, suspension, surrender, lapsing, limiting, or otherwise terminating a license -- Rulemaking for renewal or reinstatement.(1) A license type issued under this chapter remains in force until:
(a) revoked or suspended under Subsection (5);
(b) surrendered to the commissioner and accepted by the commissioner in lieu of administrative action;
(c) the licensee dies or is adjudicated incompetent as defined under:
(i) Title 75, Chapter 5, Part 3, Guardians of Incapacitated Persons; or
(ii) Title 75, Chapter 5, Part 4, Protection of Property of Persons Under Disability and Minors;
(d) lapsed under Section 31A-26-214.5; or
(e) voluntarily surrendered.
(2) The following may be reinstated within one year after the day on which the license is inactivated:
(a) a lapsed license; or
(b) a voluntarily surrendered license.
(3) Unless otherwise stated in the written agreement for the voluntary surrender of a license, submission and acceptance of a voluntary surrender of a license does not prevent the department from pursuing additional disciplinary or other action authorized under:
(a) this title; or
(b) rules made under this title in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) A license classification issued under this chapter remains in force until:
(a) the qualifications pertaining to a license classification are no longer met by the licensee; or
(b) the supporting license type:
(i) is revoked or suspended under Subsection (5); or
(ii) is surrendered to the commissioner and accepted by the commissioner in lieu of administrative action.
(5) (a) If the commissioner makes a finding under Subsection (5)(b) after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commissioner may:
(i) revoke:
(A) a license; or
(B) a license classification;
(ii) suspend for a specified period of 12 months or less:
(A) a license; or
(B) a license classification; or
(iii) limit in whole or in part:
(A) a license; or
(B) a license classification.
(b) The commissioner may take an action described in Subsection (5)(a) if the commissioner finds that the licensee:
(i) is unqualified for a license or license classification under Sections 31A-26-202, 31A-26-203, and 31A-26-204;
(ii) has violated:
(A) an insurance statute;
(B) a rule that is valid under Subsection 31A-2-201(3); or
(C) an order that is valid under Subsection 31A-2-201(4);
(iii) is insolvent, or the subject of receivership, conservatorship, rehabilitation, or other delinquency proceedings in any state;
(iv) fails to pay any final judgment rendered against the person in this state within 60 days after the judgment became final;
(v) fails to meet the same good faith obligations in claims settlement that is required of admitted insurers;
(vi) is affiliated with and under the same general management or interlocking directorate or ownership as another insurance adjuster that transacts business in this state without a license;
(vii) refuses:
(A) to be examined; or
(B) to produce its accounts, records, and files for examination;
(viii) has an officer who refuses to:
(A) give information with respect to the insurance adjuster's affairs; or
(B) perform any other legal obligation as to an examination;
(ix) provides information in the license application that is:
(A) incorrect;
(B) misleading;
(C) incomplete; or
(D) materially untrue;
(x) has violated any insurance law, valid rule, or valid order of another state's insurance department;
(xi) has obtained or attempted to obtain a license through misrepresentation or fraud;
(xii) has improperly withheld, misappropriated, or converted any monies or properties received in the course of doing insurance business;
(xiii) has intentionally misrepresented the terms of an actual or proposed:
(A) insurance contract; or
(B) application for insurance;
(xiv) has been convicted of a felony;
(xv) has admitted or been found to have committed any insurance unfair trade practice or fraud;
(xvi) in the conduct of business in this state or elsewhere has:
(A) used fraudulent, coercive, or dishonest practices; or
(B) demonstrated incompetence, untrustworthiness, or financial irresponsibility;
(xvii) has had an insurance license, or its equivalent, denied, suspended, or revoked in any other state, province, district, or territory;
(xviii) has forged another's name to:
(A) an application for insurance; or
(B) any document related to an insurance transaction;
(xix) has improperly used notes or any other reference material to complete an examination for an insurance license;
(xx) has knowingly accepted insurance business from an individual who is not licensed;
(xxi) has failed to comply with an administrative or court order imposing a child support obligation;
(xxii) has failed to:
(A) pay state income tax; or
(B) comply with any administrative or court order directing payment of state income tax;
(xxiii) has violated or permitted others to violate the federal Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. Secs. 1033 and 1034; or
(xxiv) has engaged in methods and practices in the conduct of business that endanger the legitimate interests of customers and the public.
(c) For purposes of this section, if a license is held by an agency, both the agency itself and any natural person named on the license are considered to be the holders of the license.
(d) If a natural person named on the agency license commits any act or fails to perform any duty that is a ground for suspending, revoking, or limiting the natural person's license, the commissioner may suspend, revoke, or limit the license of:
(i) the natural person;
(ii) the agency, if the agency:
(A) is reckless or negligent in its supervision of the natural person; or
(B) knowingly participated in the act or failure to act that is the ground for suspending, revoking, or limiting the license; or
(iii) (A) the natural person; and
(B) the agency if the agency meets the requirements of Subsection (5)(d)(ii).
(6) A licensee under this chapter is subject to the penalties for conducting an insurance business without a license if:
(a) the licensee's license is:
(i) revoked;
(ii) suspended;
(iii) limited;
(iv) surrendered in lieu of administrative action;
(v) lapsed; or
(vi) voluntarily surrendered; and
(b) the licensee:
(i) continues to act as a licensee; or
(ii) violates the terms of the license limitation.
(7) A licensee under this chapter shall immediately report to the commissioner:
(a) a revocation, suspension, or limitation of the person's license in any other state, the District of Columbia, or a territory of the United States;
(b) the imposition of a disciplinary sanction imposed on that person by any other state, the District of Columbia, or a territory of the United States; or
(c) a judgment or injunction entered against that person on the basis of conduct involving:
(i) fraud;
(ii) deceit;
(iii) misrepresentation; or
(iv) a violation of an insurance law or rule.
(8) (a) An order revoking a license under Subsection (5) or an agreement to surrender a license in lieu of administrative action may specify a time not to exceed five years within which the former licensee may not apply for a new license.
(b) If no time is specified in the order or agreement described in Subsection (8)(a), the former licensee may not apply for a new license for five years without the express approval of the commissioner.
(9) The commissioner shall promptly withhold, suspend, restrict, or reinstate the use of a license issued under this part if so ordered by a court.
(10) The commissioner shall by rule prescribe the license renewal and reinstatement procedures in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 386. Section 31A-26-214 is amended to read:
31A-26-214
. Probation -- Grounds for revocation.(1) The commissioner may place a licensee on probation for a period not to exceed 24 months as follows:
(a) after an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for any circumstances that would justify a suspension under Section 31A-26-213; or
(b) at the issuance of a new license:
(i) with an admitted violation under 18 U.S.C. Sections 1033 and 1034; or
(ii) with a response to a background information question on any new license application indicating that:
(A) the person has been convicted of a crime, that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation;
(B) the person is currently charged with a crime, that is listed by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a crime that is grounds for probation regardless of whether adjudication was withheld;
(C) the person has been involved in an administrative proceeding regarding any professional or occupational license; or
(D) any business in which the person is or was an owner, partner, officer, or director has been involved in an administrative proceeding regarding any professional or occupational license.
(2) The commissioner may put a licensee on probation for a specified period no longer than 24 months if the licensee has admitted to violations under 18 U.S.C. Sections 1033 and 1034.
(3) A probation order under this section shall state the conditions for retention of the license, which shall be reasonable.
(4) A violation of the probation is grounds for revocation pursuant to any proceeding authorized under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 387. Section 31A-27a-102 is amended to read:
31A-27a-102
. Definitions.As used in this chapter:
(1) "Admitted assets" is as defined by and is measured in accordance with the National Association of Insurance Commissioner's Statements of Statutory Accounting Principles, as incorporated in this state by rules made by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the purposes of Subsection 31A-4-113(1)(b)(ii).
(2) "Affected guaranty association" means a guaranty association that is or may become liable for payment of a covered claim.
(3) "Affiliate" is as defined in Section 31A-1-301.
(4) Notwithstanding Section 31A-1-301, "alien insurer" means an insurer incorporated or organized under the laws of a jurisdiction that is not a state.
(5) Notwithstanding Section 31A-1-301, "claimant" or "creditor" means a person having a claim against an insurer whether the claim is:
(a) matured or not matured;
(b) liquidated or unliquidated;
(c) secured or unsecured;
(d) absolute; or
(e) fixed or contingent.
(6) "Commissioner" is as defined in Section 31A-1-301.
(7) "Commodity contract" means:
(a) a contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of:
(i) a board of trade or contract market under the Commodity Exchange Act, 7 U.S.C. Sec. 1 et seq.; or
(ii) a board of trade outside the United States;
(b) an agreement that is:
(i) subject to regulation under Section 19 of the Commodity Exchange Act, 7 U.S.C. Sec. 1 et seq.; and
(ii) commonly known to the commodities trade as:
(A) a margin account;
(B) a margin contract;
(C) a leverage account; or
(D) a leverage contract;
(c) an agreement or transaction that is:
(i) subject to regulation under Section 4c(b) of the Commodity Exchange Act, 7 U.S.C. Sec. 1 et seq.; and
(ii) commonly known to the commodities trade as a commodity option;
(d) a combination of the agreements or transactions referred to in this Subsection (7); or
(e) an option to enter into an agreement or transaction referred to in this Subsection (7).
(8) "Control" is as defined in Section 31A-1-301.
(9) "Delinquency proceeding" means a:
(a) proceeding instituted against an insurer for the purpose of rehabilitating or liquidating the insurer; and
(b) summary proceeding under Section 31A-27a-201.
(10) "Department" is as defined in Section 31A-1-301 unless the context requires otherwise.
(11) "Doing business," "doing insurance business," and "business of insurance" includes any of the following acts, whether effected by mail, electronic means, or otherwise:
(a) issuing or delivering a contract, certificate, or binder relating to insurance or annuities:
(i) to a person who is resident in this state; or
(ii) covering a risk located in this state;
(b) soliciting an application for the contract, certificate, or binder described in Subsection (11)(a);
(c) negotiating preliminary to the execution of the contract, certificate, or binder described in Subsection (11)(a);
(d) collecting premiums, membership fees, assessments, or other consideration for the contract, certificate, or binder described in Subsection (11)(a);
(e) transacting matters:
(i) subsequent to execution of the contract, certificate, or binder described in Subsection (11)(a); and
(ii) arising out of the contract, certificate, or binder described in Subsection (11)(a);
(f) operating as an insurer under a license or certificate of authority issued by the department; or
(g) engaging in an act identified in Chapter 15, Unauthorized Insurers, Surplus Lines, and Risk Retention Groups.
(12) Notwithstanding Section 31A-1-301, "domiciliary state" means the state in which an insurer is incorporated or organized, except that "domiciliary state" means:
(a) in the case of an alien insurer, its state of entry; or
(b) in the case of a risk retention group, the state in which the risk retention group is chartered as contemplated in the Liability Risk Retention Act, 15 U.S.C. Sec. 3901 et seq.
(13) "Estate" has the same meaning as "property of the insurer" as defined in Subsection (30).
(14) "Fair consideration" is given for property or an obligation:
(a) when in exchange for the property or obligation, as a fair equivalent for it, and in good faith:
(i) property is conveyed;
(ii) services are rendered;
(iii) an obligation is incurred; or
(iv) an antecedent debt is satisfied; or
(b) when the property or obligation is received in good faith to secure a present advance or an antecedent debt in amount not disproportionately small compared to the value of the property or obligation obtained.
(15) Notwithstanding Section 31A-1-301, "foreign insurer" means an insurer domiciled in another state.
(16) "Formal delinquency proceeding" means a rehabilitation or liquidation proceeding.
(17) "Forward contract" is as defined in the Federal Deposit Insurance Act, 12 U.S.C. Sec. 1821(e)(8)(D).
(18) (a) "General assets" include all property of the estate that is not:
(i) subject to a properly perfected secured claim;
(ii) subject to a valid and existing express trust for the security or benefit of a specified person or class of person; or
(iii) required by the insurance laws of this state or any other state to be held for the benefit of a specified person or class of person.
(b) "General assets" include all property of the estate or its proceeds in excess of the amount necessary to discharge a claim described in Subsection (18)(a).
(19) "Good faith" means honesty in fact and intention, and in regard to Part 5, Asset Recovery, also requires the absence of:
(a) information that would lead a reasonable person in the same position to know that the insurer is financially impaired or insolvent; and
(b) knowledge regarding the imminence or pendency of a delinquency proceeding against the insurer.
(20) "Guaranty association" means:
(a) a mechanism mandated by Chapter 28, Guaranty Associations; or
(b) a similar mechanism in another state that is created for the payment of claims or continuation of policy obligations of a financially impaired or insolvent insurer.
(21) "Impaired" means that an insurer:
(a) does not have admitted assets at least equal to the sum of:
(i) all its liabilities; and
(ii) the minimum surplus required to be maintained by Section 31A-5-211 or 31A-8-209; or
(b) has a total adjusted capital that is less than its authorized control level RBC, as defined in Section 31A-17-601.
(22) "Insolvency" or "insolvent" means that an insurer:
(a) is unable to pay its obligations when they are due;
(b) does not have admitted assets at least equal to all of its liabilities; or
(c) has a total adjusted capital that is less than its mandatory control level RBC, as defined in Section 31A-17-601.
(23) Notwithstanding Section 31A-1-301, "insurer" means a person who:
(a) is doing, has done, purports to do, or is licensed to do the business of insurance;
(b) is or has been subject to the authority of, or to rehabilitation, liquidation, reorganization, supervision, or conservation by an insurance commissioner; or
(c) is included under Section 31A-27a-104.
(24) "Liabilities" is as defined by and is measured in accordance with the National Association of Insurance Commissioner's Statements of Statutory Accounting Principles, as incorporated in this state by rules made by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the purposes of Subsection 31A-4-113(1)(b)(ii).
(25) (a) Subject to Subsection (21)(b), "netting agreement" means:
(i) a contract or agreement that:
(A) documents one or more transactions between the parties to the agreement for or involving one or more qualified financial contracts; and
(B) provides for the netting, liquidation, setoff, termination, acceleration, or close out under or in connection with:
(I) one or more qualified financial contracts; or
(II) present or future payment or delivery obligations or payment or delivery entitlements under the agreement, including liquidation or close-out values relating to the obligations or entitlements, among the parties to the netting agreement;
(ii) a master agreement or bridge agreement for one or more master agreements described in Subsection (25)(a)(i); or
(iii) any of the following related to a contract or agreement described in Subsection (25)(a)(i) or (ii):
(A) a security agreement;
(B) a security arrangement;
(C) other credit enhancement or guarantee; or
(D) a reimbursement obligation.
(b) If a contract or agreement described in Subsection (25)(a)(i) or (ii) relates to an agreement or transaction that is not a qualified financial contract, the contract or agreement described in Subsection (25)(a)(i) or (ii) is considered a netting agreement only with respect to an agreement or transaction that is a qualified financial contract.
(c) "Netting agreement" includes:
(i) a term or condition incorporated by reference in the contract or agreement described in Subsection (25)(a); or
(ii) a master agreement described in Subsection (25)(a).
(d) A master agreement described in Subsection (25)(a), together with all schedules, confirmations, definitions, and addenda to that master agreement and transactions under any of the items described in this Subsection (25)(d), are treated as one netting agreement.
(26) (a) "New value" means:
(i) money;
(ii) money's worth in goods, services, or new credit; or
(iii) release by a transferee of property previously transferred to the transferee in a transaction that is neither void nor voidable by the insurer or the receiver under any applicable law, including proceeds of the property.
(b) "New value" does not include an obligation substituted for an existing obligation.
(27) "Party in interest" means:
(a) the commissioner;
(b) a nondomiciliary commissioner in whose state the insurer has outstanding claims liabilities;
(c) an affected guaranty association; and
(d) the following parties if the party files a request with the receivership court for inclusion as a party in interest and to be on the service list:
(i) an insurer that ceded to or assumed business from the insurer;
(ii) a policyholder;
(iii) a third party claimant;
(iv) a creditor;
(v) a 10% or greater equity security holder in the insolvent insurer; and
(vi) a person, including an indenture trustee, with a financial or regulatory interest in the delinquency proceeding.
(28) (a) Notwithstanding Section 31A-1-301, "policy" means, notwithstanding what it is called:
(i) a written contract of insurance;
(ii) a written agreement for or affecting insurance; or
(iii) a certificate of a written contract or agreement described in this Subsection (28)(a).
(b) "Policy" includes all clauses, riders, endorsements, and papers that are a part of a policy.
(c) "Policy" does not include a contract of reinsurance.
(29) "Preference" means a transfer of property of an insurer to or for the benefit of a creditor:
(a) for or on account of an antecedent debt, made or allowed by the insurer within one year before the day on which a successful petition for rehabilitation or liquidation is filed under this chapter;
(b) the effect of which transfer may enable the creditor to obtain a greater percentage of the creditor's debt than another creditor of the same class would receive; and
(c) if a liquidation order is entered while the insurer is already subject to a rehabilitation order and the transfer otherwise qualifies, that is made or allowed within the shorter of:
(i) one year before the day on which a successful petition for rehabilitation is filed; or
(ii) two years before the day on which a successful petition for liquidation is filed.
(30) "Property of the insurer" or "property of the estate" includes:
(a) a right, title, or interest of the insurer in property:
(i) whether:
(A) legal or equitable;
(B) tangible or intangible; or
(C) choate or inchoate; and
(ii) including choses in action, contract rights, and any other interest recognized under the laws of this state;
(b) entitlements that exist before the entry of an order of rehabilitation or liquidation;
(c) entitlements that may arise by operation of this chapter or other provisions of law allowing the receiver to avoid prior transfers or assert other rights; and
(d) (i) records or data that is otherwise the property of the insurer; and
(ii) records or data similar to those described in Subsection (30)(d)(i) that are within the possession, custody, or control of a managing general agent, a third party administrator, a management company, a data processing company, an accountant, an attorney, an affiliate, or other person.
(31) Subject to Subsection 31A-27a-611(10), "qualified financial contract" means any of the following:
(a) a commodity contract;
(b) a forward contract;
(c) a repurchase agreement;
(d) a securities contract;
(e) a swap agreement; or
(f) any similar agreement that the commissioner determines by rule or order to be a qualified financial contract for purposes of this chapter.
(32) As the context requires, "receiver" means a rehabilitator, liquidator, or ancillary receiver.
(33) As the context requires, "receivership" means a rehabilitation, liquidation, or ancillary receivership.
(34) Unless the context requires otherwise, "receivership court" refers to the court in which a delinquency proceeding is pending.
(35) "Reciprocal state" means any state other than this state that:
(a) enforces a law substantially similar to this chapter;
(b) requires the commissioner to be the receiver of a delinquent insurer; and
(c) has laws for the avoidance of fraudulent conveyances and preferential transfers by the receiver of a delinquent insurer.
(36) "Record," when used as a noun, means any information or data, in whatever form maintained, including:
(a) a book;
(b) a document;
(c) a paper;
(d) a file;
(e) an application file;
(f) a policyholder list;
(g) policy information;
(h) a claim or claim file;
(i) an account;
(j) a voucher;
(k) a litigation file;
(l) a premium record;
(m) a rate book;
(n) an underwriting manual;
(o) a personnel record;
(p) a financial record; or
(q) other material.
(37) "Reinsurance" means a transaction or contract under which an assuming insurer agrees to indemnify a ceding insurer against all, or a part, of any loss that the ceding insurer may sustain under the one or more policies that the ceding insurer issues or will issue.
(38) "Repurchase agreement" is as defined in the Federal Deposit Insurance Act, 12 U.S.C. Sec. 1821(e)(8)(D).
(39) (a) "Secured claim" means, subject to Subsection (39)(b):
(i) a claim secured by an asset that is not a general asset; or
(ii) the right to set off as provided in Section 31A-27a-510.
(b) "Secured claim" does not include:
(i) a special deposit claim;
(ii) a claim based on mere possession; or
(iii) a claim arising from a constructive or resulting trust.
(40) "Securities contract" is as defined in the Federal Deposit Insurance Act, 12 U.S.C. Sec. 1821(e)(8)(D).
(41) "Special deposit" means a deposit established pursuant to statute for the security or benefit of a limited class or classes of persons.
(42) (a) Subject to Subsection (42)(b), "special deposit claim" means a claim secured by a special deposit.
(b) "Special deposit claim" does not include a claim against the general assets of the insurer.
(43) "State" means a state, district, or territory of the United States.
(44) "Subsidiary" is as defined in Section 31A-1-301.
(45) "Swap agreement" is as defined in the Federal Deposit Insurance Act, 12 U.S.C. Sec. 1821(e)(8)(D).
(46) (a) "Transfer" includes the sale and every other and different mode of disposing of or parting with property or with an interest in property, whether:
(i) directly or indirectly;
(ii) absolutely or conditionally;
(iii) voluntarily or involuntarily; or
(iv) by or without judicial proceedings.
(b) An interest in property includes:
(i) a set off;
(ii) having possession of the property; or
(iii) fixing a lien on the property or on an interest in the property.
(c) The retention of a security title in property delivered to an insurer and foreclosure of the insurer's equity of redemption is considered a transfer suffered by the insurer.
(47) Notwithstanding Section 31A-1-301, "unauthorized insurer" means an insurer transacting the business of insurance in this state that has not received a certificate of authority from this state, or some other type of authority that allows for the transaction of the business of insurance in this state.
Section 388. Section 31A-27a-116 is amended to read:
31A-27a-116
. Financial reporting.(1) (a) The receiver shall comply with all requirements for receivership financial reporting as specified by the commissioner by rule within:
(i) 180 days after the day on which the receivership court enters an order of receivership; and
(ii) 45 days following each calendar quarter after the period specified in Subsection (1)(a)(i).
(b) The rule described in this Subsection (1) shall:
(i) comply with this section;
(ii) be made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(iii) require the receiver to file any financial report with the receivership court in addition to any other person specified in the rule.
(c) A financial report shall include, at a minimum, a statement of:
(i) the assets and liabilities of the insurer;
(ii) the changes in those assets and liabilities; and
(iii) all funds received or disbursed by the receiver during that reporting period.
(d) The receiver may qualify a financial report or provide notes to the financial statement for further explanation.
(e) The receivership court may order the receiver to provide any additional information as the receivership court considers appropriate.
(2) Each affected guaranty association shall file one or more reports with the liquidator:
(a) (i) within 180 days after the day on which the receivership court enters an order of liquidation; and
(ii) (A) within 45 days following each calendar quarter after the period described in Subsection (2)(a)(i); or
(B) at an interval:
(I) agreed to between the liquidator and the affected guaranty association; or
(II) required by the receivership court; and
(b) in no event less than annually.
(3) For good cause shown, the receivership court may grant:
(a) relief for an extension or modification of time to comply with Subsection (1) or (2); or
(b) such other relief as may be appropriate.
Section 389. Section 31A-27a-117 is amended to read:
31A-27a-117
. Records.(1) (a) Upon entry of an order of rehabilitation or liquidation, the receiver is vested with title to all of the records of the insurer:
(i) of whatever nature;
(ii) in whatever medium;
(iii) wherever located; and
(iv) regardless of whether the item is in the custody and control of:
(A) a third party administrator;
(B) a managing general agent;
(C) an attorney; or
(D) other representatives of the insurer.
(b) The receiver may immediately take possession and control of:
(i) all of the records of the insurer; and
(ii) the premises where the records are located.
(c) At the request of the receiver, a third party administrator, managing general agent, attorney, or other representatives of the insurer shall release all records of the insurer to:
(i) the receiver; or
(ii) the receiver's designee.
(d) With the receiver's approval, an affected guaranty association with an obligation under a policy issued by the insurer may take actions necessary to obtain directly from a third party administrator, managing general agent, attorney, or other representative of the insurer all records pertaining to the insurer's business that are appropriate or necessary for the affected guaranty association to fulfill its statutory obligations.
(2) The receiver may certify a record of a delinquent insurer described in Subsection (1) and a record of the receiver's office created and maintained in connection with a delinquent insurer, as follows:
(a) a record of a delinquent insurer may be certified by the receiver in an affidavit stating that the record is a true and correct copy of the record of the insurer that is received from the custody of the insurer, or found among the insurer's effects; or
(b) a record created by or filed with the receiver's office in connection with a delinquent insurer may be certified by the receiver's affidavit stating that the record is a true and correct copy of the record maintained by the receiver's office.
(3) (a) An original record or copy of a record certified under Subsection (2):
(i) when admitted in evidence is prima facie evidence of the facts disclosed; and
(ii) is admissible in evidence in the same manner as a document described in Utah Rules of Evidence, Rule 902(1).
(b) The receivership court may consider the certification of a record by the receiver pursuant to this section as satisfying the requirements of Utah Rules of Evidence, Rule 803(6).
(4) A record of a delinquent insurer held by the receiver:
(a) is not a record of the department for any purposes; and
(b) not subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 390. Section 31A-27a-514 is amended to read:
31A-27a-514
. Recovery of premiums owed.(1) (a) An insured shall pay any unpaid earned premium or retrospectively rated premium due the insurer:
(i) directly to the receiver; or
(ii) to an agent that pays or is obligated to pay the receiver on behalf of the insured.
(b) (i) Premium on surety business is considered earned at inception if no policy term can be determined.
(ii) All premium other than that described in Subsection (1)(b)(i) is considered earned and is prorated equally over the determined policy term, regardless of any provision in the bond, guaranty, contract, or other agreement.
(2) (a) A person, other than the insured, responsible for the remittance of a premium, shall turn over to the receiver any unpaid premium due and owing as shown on the records of the insurer for the full policy term due the insurer at the time of the entry of the receivership order:
(i) including any amount representing commissions; and
(ii) whether earned or unearned based on the termination of coverage under Sections 31A-27a-402 and 31A-27a-403.
(b) The unpaid premium due the receiver from any person other than the insured excludes any premium not collected from the insured and not earned based on the termination of coverage under Sections 31A-27a-402 and 31A-27a-403.
(3) (a) A person, other than the insured, responsible for the remittance of a premium, shall turn over to the receiver any unearned commission of that person based on the termination of coverage under Sections 31A-27a-402 and 31A-27a-403.
(b) A credit, setoff, or both may not be allowed to an agent, broker, premium finance company, or any other person for an:
(i) amount advanced to the insurer by the person on behalf of, but in the absence of a payment by, the insured; or
(ii) other amount paid by the person to any other person after the day on which the order of receivership is entered.
(4) Regardless of any provision to the contrary in an agency contract or other agreement, a person that collects premium or finances premium under a premium finance contract, that is due the insurer in receivership is considered to:
(a) hold that premium in trust as a fiduciary for the benefit of the insurer; and
(b) have availed itself of the laws of this state.
(5) (a) A premium finance company is obligated to pay an amount due the insurer from a premium finance contract, whether the premium is earned or unearned.
(b) The receiver may collect an unpaid financed premium directly from:
(i) the premium finance company by taking an assignment of the underlying premium finance contract; or
(ii) the insured that is a party to the premium finance contract.
(6) Upon satisfactory evidence of a violation of this section by a person other than an insured, the commissioner may pursue one or more of the following courses of action:
(a) suspend, revoke, or refuse to renew the license of an offending party;
(b) impose a penalty of not more than $1,000 for each act in violation of this section by a party; and
(c) impose any other sanction or penalty allowed for by law.
(7) (a) Before the commissioner may take an action set forth in Subsection (6), written notice shall be given to the person accused of violating the law:
(i) stating specifically the nature of the alleged violation; and
(ii) fixing a time and place, at least ten days after the day on which the notice is sent, when a hearing on the matter is to be held.
(b) After a hearing, or upon failure of the accused to appear at a hearing, the commissioner, if a violation is found, shall impose the penalties under Subsection (6) that the commissioner considers advisable.
(c) If the commissioner takes action under this Subsection (7), the party aggrieved may appeal from that action as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 391. Section 31A-27a-515 is amended to read:
31A-27a-515
. Commutation and release agreements.(1) For purposes of this section, "casualty claims" means the insurer's aggregate claims arising out of insurance contracts in the following lines:
(a) farm owner multiperil;
(b) homeowner multiperil;
(c) commercial multiperil;
(d) medical malpractice;
(e) workers' compensation;
(f) other liability;
(g) products liability;
(h) auto liability;
(i) aircraft, all peril; and
(j) international, for lines listed in Subsections (1)(a) through (i).
(2) (a) Notwithstanding Section 31A-27a-512, the liquidator and a reinsurer may negotiate a voluntary commutation and release of all obligations arising from a reinsurance agreement in which the insurer is the ceding party.
(b) A commutation and release agreement voluntarily entered into by the parties shall be commercially reasonable, actuarially sound, and in the best interests of the creditors of the insurer.
(c) (i) An agreement subject to this Subsection (2) that has a gross consideration in excess of $250,000 shall be submitted pursuant to Section 31A-27a-107 to the receivership court for approval.
(ii) An agreement described in this Subsection (2)(c) shall be approved by the receivership court if it meets the standards described in this Subsection (2).
(3) Without derogating from Section 31A-27a-512, if the liquidator is unable to negotiate a voluntary commutation with a reinsurer with respect to a reinsurance agreement between the insurer and that reinsurer, the liquidator may, in addition to any other remedy available under applicable law, apply to the receivership court, with notice to the reinsurer, for an order requiring that the parties submit commutation proposals with respect to the reinsurance agreement to a panel of three arbitrators:
(a) at any time after 75% of the actuarially estimated ultimate incurred liability for all of the casualty claims against the liquidation estate is reached by allowance of claims in the liquidation estate pursuant to Sections 31A-27a-603 and 31A-27a-605, calculated:
(i) as of the day on which the order of liquidation is entered by or at the instance of the liquidator; and
(ii) for purposes of this Subsection (3), not performed during the five-year period subsequent to the day on which the order of liquidation is entered; or
(b) at any time in regard to a reinsurer if that reinsurer has a total adjusted capital that is less than 250% of its authorized control level RBC as defined in Section 31A-17-601.
(4) Venue for the arbitration is within the district of the receivership court's jurisdiction or at another location agreed to by the parties.
(5) (a) If the liquidator determines that commutation would be in the best interests of the creditors of the liquidation estate, the liquidator may petition the receivership court to order arbitration.
(b) If the liquidator petitions the receivership court under Subsection (5)(a), the receivership court shall require that the liquidator and the reinsurer each appoint an arbitrator within 30 days after the day on which the order for arbitration is entered.
(c) If either party fails to appoint an arbitrator within the 30-day period, the other party may appoint both arbitrators and the appointments are binding on the parties.
(d) The two arbitrators shall be active or retired executive officers of insurance or reinsurance companies, not under the control of or affiliated with the insurer or the reinsurer.
(e) (i) Within 30 days after the day on which both arbitrators have been appointed, the two arbitrators shall agree to the appointment of a third independent, impartial, disinterested arbitrator.
(ii) If agreement to the disinterested arbitrator is not reached within the 30-day period, the third arbitrator shall be appointed by the receivership court.
(f) The disinterested arbitrator shall be a person who:
(i) is or, if retired, has been, an executive officer of a United States domiciled insurance or reinsurance company that is not under the control of or affiliated with either of the parties; and
(ii) has at least 15 years experience in the reinsurance industry.
(6) (a) The arbitration panel may choose to retain as an expert to assist the panel in its determinations, a retired, disinterested executive officer of a United States domiciled insurance or reinsurance company having at least 15 years loss reserving actuarial experience.
(b) If the arbitration panel is unable to unanimously agree on the identity of the expert within 14 days of the day on which the disinterested arbitrator is appointed, the expert shall be:
(i) designated by the commissioner:
(A) by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(B) on the basis of recommendations made by a nationally recognized society of actuaries; and
(ii) a disinterested person that has knowledge, experience, and training applicable to the line of insurance that is the subject of the arbitration.
(c) The expert:
(i) may not vote in the proceeding; and
(ii) shall issue a written report and recommendations to the arbitration panel within 60 days after the day on which the arbitration panel receives the commutation proposals submitted by the parties pursuant to Subsection (7), which report shall:
(A) be included as part of the arbitration record; and
(B) accompany the award issued by the arbitration panel pursuant to Subsection (8).
(d) The cost of the expert is to be paid equally by the parties.
(7) Within 90 days after the day on which the disinterested arbitrator is appointed under Subsection (5), each party shall submit to the arbitration panel:
(a) the party's commutation proposals; and
(b) other documents and information relevant to the determination of the parties' rights and obligations under the reinsurance agreement to be commuted, including:
(i) a written review of any disputed paid claim balances;
(ii) any open claim files and related case reserves at net present value; and
(iii) any actuarial estimates with the basis of computation of any other reserves and any incurred-but-not-reported losses at net present value.
(8) (a) Within 90 days after the day on which the parties submit the information required by Subsection (7), the arbitration panel:
(i) shall issue an award, determined by a majority of the arbitration panel, specifying the terms of a commercially reasonable and actuarially sound commutation agreement between the parties; or
(ii) may issue an award declining commutation between the parties for a period not to exceed two years if a majority of the arbitration panel determines that it is unable to derive a commercially reasonable and actuarially sound commutation on the basis of:
(A) the submissions of the parties; and
(B) if applicable, the report and recommendation of the expert retained in accordance with Subsection (6).
(b) Following the expiration of the two-year period described in Subsection (8)(a), the liquidator may again invoke arbitration in accordance with Subsection (2), in which event Subsections (2) through (9) apply to the renewed proceeding, except that the arbitration panel is obliged to issue an award under Subsection (8)(a).
(9) Once an award is issued, the liquidator shall promptly submit the award to the receivership court for confirmation.
(10) (a) Within 30 days of the day on which the receivership court confirms the award, the reinsurer shall give notice to the receiver that the reinsurer:
(i) will commute the reinsurer's liabilities to the insurer for the amount of the award in return for a full and complete release of all liabilities between the parties, whether past, present, or future; or
(ii) will not commute the reinsurer's liabilities to the insurer.
(b) If the reinsurer's liabilities are not commuted under Subsection (10)(a), the reinsurer shall:
(i) establish and maintain in accordance with Section 31A-27a-516 a reinsurance recoverable trust in the amount of 102% of the award; and
(ii) pay the costs and fees associated with establishing and maintaining the trust established under this Subsection (10)(b).
(11) (a) If the reinsurer notifies the liquidator that it will commute the reinsurer's liabilities pursuant to Subsection (10)(a)(i), the liquidator has 30 days from the day on which the reinsurer notifies the liquidator to:
(i) tender to the reinsurer a proposed commutation and release agreement:
(A) providing for a full and complete release of all liabilities between the parties, whether past, present, or future;
(B) that requires that the reinsurer make payment of the commutation amount within 14 days from the day on which the agreement is consummated; or
(ii) reject the commutation in writing, subject to receivership court approval.
(b) If the liquidator rejects the commutation subject to approval of the receivership court in accordance with Subsection (11)(a)(ii), the reinsurer shall establish and maintain a reinsurance recoverable trust in accordance with Section 31A-27a-516.
(c) The liquidator and the reinsurer shall share equally in the costs and fees associated with establishing and maintaining the trust established under Subsection (11)(b).
(12) Except for the period provided in Subsection (8)(b), the time periods established in Subsections (6), (7), (8), (10), and (11) may be extended:
(a) upon the consent of the parties; or
(b) by order of the receivership court, for good cause shown.
(13) Subject to Subsection (14), this section may not be construed to supersede or impair any provision in a reinsurance agreement that establishes a commercially reasonable and actuarially sound method for valuing and commuting the obligations of the parties to the reinsurance agreement by providing in the contract the specific methodology to be used for valuing and commuting the obligations between the parties.
(14) (a) A commutation provision in a reinsurance agreement is not effective if it is demonstrated to the receivership court that the provision is entered into in contemplation of the insolvency of one or more of the parties.
(b) A contractual commutation provision entered into within one year of the day on which the liquidation order of the insurer is entered is rebuttably presumed to have been entered into in contemplation of insolvency.
Section 392. Section 31A-27a-804 is amended to read:
31A-27a-804
. Disposition of records during and after termination of liquidation.(1) Whenever it appears to the receiver that records of the insurer in receivership are no longer useful, the receiver may recommend to the receivership court, and the receivership court shall direct what records shall be destroyed.
(2) (a) If the receiver determines that records should be maintained after the closing of the delinquency proceeding, the receiver may reserve property from the receivership estate for the maintenance of the records.
(b) Any amounts retained under this Subsection (2) are an administrative expense of the estate under Subsection 31A-27a-701(2)(a).
(c) Any records retained pursuant to this Subsection (2) shall be transferred to the custody of the commissioner, and the commissioner may retain or dispose of the records as appropriate, at the commissioner's discretion.
(d) Records of a delinquent insurer that are transferred to the commissioner:
(i) may not be considered a record of the department for any purpose; and
(ii) are not subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 393. Section 31A-29-106 is amended to read:
31A-29-106
. Powers of board.(1) The board shall have the general powers and authority granted under the laws of this state to insurance companies licensed to transact health care insurance business. In addition, the board shall have the specific authority to:
(a) enter into contracts to carry out the provisions and purposes of this chapter, including, with the approval of the commissioner, contracts with:
(i) similar pools of other states for the joint performance of common administrative functions; or
(ii) persons or other organizations for the performance of administrative functions;
(b) sue or be sued, including taking such legal action necessary to avoid the payment of improper claims against the pool or the coverage provided through the pool;
(c) establish appropriate rates, rate schedules, rate adjustments, expense allowances, agents' referral fees, claim reserve formulas, and any other actuarial function appropriate to the operation of the pool;
(d) issue policies of insurance in accordance with the requirements of this chapter;
(e) retain an executive director and appropriate legal, actuarial, and other personnel as necessary to provide technical assistance in the operations of the pool;
(f) establish rules, conditions, and procedures for reinsuring risks under this chapter;
(g) cause the pool to have an annual audit of its operations by the state auditor;
(h) coordinate with the Department of Health in seeking to obtain from the Centers for Medicare and Medicaid Services, or other appropriate office or agency of government, all appropriate waivers, authority, and permission needed to coordinate the coverage available from the pool with coverage available under Medicaid, either before or after Medicaid coverage, or as a conversion option upon completion of Medicaid eligibility, without the necessity for requalification by the enrollee;
(i) provide for and employ cost containment measures and requirements including preadmission certification, concurrent inpatient review, and individual case management for the purpose of making the pool more cost-effective;
(j) offer pool coverage through contracts with health maintenance organizations, preferred provider organizations, and other managed care systems that will manage costs while maintaining quality care;
(k) establish annual limits on benefits payable under the pool to or on behalf of any enrollee;
(l) exclude from coverage under the pool specific benefits, medical conditions, and procedures for the purpose of protecting the financial viability of the pool;
(m) administer the Pool Fund;
(n) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this chapter; and
(o) adopt, trademark, and copyright a trade name for the pool for use in marketing and publicizing the pool and its products.
(2) (a) The board shall prepare and submit an annual report to the Legislature which shall include:
(i) the net premiums anticipated;
(ii) actuarial projections of payments required of the pool;
(iii) the expenses of administration; and
(iv) the anticipated reserves or losses of the pool.
(b) The budget for operation of the pool is subject to the approval of the board.
(c) The administrative budget of the board and the commissioner under this chapter shall comply with the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, and is subject to review and approval by the Legislature.
(3) (a) The board shall on or before September 1, 2004, require the plan administrator or an independent actuarial consultant retained by the plan administrator to redetermine the reasonable equivalent of the criteria for uninsurability required under Subsection 31A-30-106(1)(j) that is used by the board to determine eligibility for coverage in the pool.
(b) The board shall redetermine the criteria established in Subsection (3)(a) at least every five years thereafter.
Section 394. Section 31A-29-110 is amended to read:
31A-29-110
. Pool administrator -- Selection -- Powers.(1) The board shall select a pool administrator in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code. The board shall evaluate bids based on criteria established by the board, which shall include:
(a) ability to manage medical expenses;
(b) proven ability to handle accident and health insurance;
(c) efficiency of claim paying procedures;
(d) marketing and underwriting;
(e) proven ability for managed care and quality assurance;
(f) provider contracting and discounts;
(g) pharmacy benefit management;
(h) an estimate of total charges for administering the pool; and
(i) ability to administer the pool in a cost-efficient manner.
(2) A pool administrator may be:
(a) a health insurer;
(b) a health maintenance organization;
(c) a third-party administrator; or
(d) any person or entity which has demonstrated ability to meet the criteria in Subsection (1).
(3) (a) The pool administrator shall serve for a period of three years, with two one-year extension options, subject to the terms, conditions, and limitations of the contract between the board and the administrator.
(b) At least one year prior to the expiration of the contract between the board and the pool administrator, the board shall invite all interested parties, including the current pool administrator, to submit bids to serve as the pool administrator.
(c) Selection of the pool administrator for a succeeding period shall be made at least six months prior to the expiration of the period of service under Subsection (3)(a).
(4) The pool administrator is responsible for all operational functions of the pool and shall:
(a) have access to all nonpatient specific experience data, statistics, treatment criteria, and guidelines compiled or adopted by the Medicaid program, the Public Employees Health Plan, the Department of Health, or the Insurance Department, and which are not otherwise declared by statute to be confidential;
(b) perform all marketing, eligibility, enrollment, member agreements, and administrative claim payment functions relating to the pool;
(c) establish, administer, and operate a monthly premium billing procedure for collection of premiums from enrollees;
(d) perform all necessary functions to assure timely payment of benefits to enrollees, including:
(i) making information available relating to the proper manner of submitting a claim for benefits to the pool administrator and distributing forms upon which submission shall be made; and
(ii) evaluating the eligibility of each claim for payment by the pool;
(e) submit regular reports to the board regarding the operation of the pool, the frequency, content, and form of which reports shall be determined by the board;
(f) following the close of each calendar year, determine net written and earned premiums, the expense of administration, and the paid and incurred losses for the year and submit a report of this information to the board, the commissioner, and the Division of Finance on a form prescribed by the commissioner; and
(g) be paid as provided in the plan of operation for expenses incurred in the performance of the pool administrator's services.
Section 395. Section 31A-29-111 is amended to read:
31A-29-111
. Eligibility -- Limitations.(1) (a) Except as provided in Subsection (1)(b), an individual who is not HIPAA eligible is eligible for pool coverage if the individual:
(i) pays the established premium;
(ii) is a resident of this state; and
(iii) meets the health underwriting criteria under Subsection (5)(a).
(b) Notwithstanding Subsection (1)(a), an individual who is not HIPAA eligible is not eligible for pool coverage if one or more of the following conditions apply:
(i) the individual is eligible for health care benefits under Medicaid or Medicare, except as provided in Section 31A-29-112;
(ii) the individual has terminated coverage in the pool, unless:
(A) 12 months have elapsed since the termination date; or
(B) the individual demonstrates that creditable coverage has been involuntarily terminated for any reason other than nonpayment of premium;
(iii) the pool has paid the maximum lifetime benefit to or on behalf of the individual;
(iv) the individual is an inmate of a public institution;
(v) the individual is eligible for a public health plan, as defined in federal regulations adopted pursuant to 42 U.S.C. 300gg;
(vi) the individual's health condition does not meet the criteria established under Subsection (5);
(vii) the individual is eligible for coverage under an employer group that offers health insurance or a self-insurance arrangement to its eligible employees, dependents, or members as:
(A) an eligible employee;
(B) a dependent of an eligible employee; or
(C) a member;
(viii) the individual:
(A) has coverage substantially equivalent to a pool policy, as established by the board in administrative rule, either as an insured or a covered dependent; or
(B) would be eligible for the substantially equivalent coverage if the individual elected to obtain the coverage;
(ix) at the time of application, the individual has not resided in Utah for at least 12 consecutive months preceding the date of application; or
(x) the individual's employer pays any part of the individual's health insurance premium, either as an insured or a dependent, for pool coverage.
(2) (a) Except as provided in Subsection (2)(b), an individual who is HIPAA eligible is eligible for pool coverage if the individual:
(i) pays the established premium; and
(ii) is a resident of this state.
(b) Notwithstanding Subsection (2)(a), a HIPAA eligible individual is not eligible for pool coverage if one or more of the following conditions apply:
(i) the individual is eligible for health care benefits under Medicaid or Medicare, except as provided in Section 31A-29-112;
(ii) the individual is eligible for a public health plan, as defined in federal regulations adopted pursuant to 42 U.S.C. 300gg;
(iii) the individual is covered under any other health insurance;
(iv) the individual is eligible for coverage under an employer group that offers health insurance or self-insurance arrangements to its eligible employees, dependents, or members as:
(A) an eligible employee;
(B) a dependent of an eligible employee; or
(C) a member;
(v) the pool has paid the maximum lifetime benefit to or on behalf of the individual;
(vi) the individual is an inmate of a public institution; or
(vii) the individual's employer pays any part of the individual's health insurance premium, either as an insured or a dependent, for pool coverage.
(3) (a) Notwithstanding Subsection (1)(b)(ix), if otherwise eligible under Subsection (1)(a), an individual whose health insurance coverage from a state high risk pool with similar coverage is terminated because of nonresidency in another state is eligible for coverage under the pool subject to the conditions of Subsections (1)(b)(i) through (viii).
(b) Coverage sought under Subsection (3)(a) shall be applied for within 63 days after the termination date of the previous high risk pool coverage.
(c) The effective date of this state's pool coverage shall be the date of termination of the previous high risk pool coverage.
(d) The waiting period of an individual with a preexisting condition applying for coverage under this chapter shall be waived:
(i) to the extent to which the waiting period was satisfied under a similar plan from another state; and
(ii) if the other state's benefit limitation was not reached.
(4) (a) If an eligible individual applies for pool coverage within 30 days of being denied coverage by an individual carrier, the effective date for pool coverage shall be no later than the first day of the month following the date of submission of the completed insurance application to the carrier.
(b) Notwithstanding Subsection (4)(a), for individuals eligible for coverage under Subsection (3), the effective date shall be the date of termination of the previous high risk pool coverage.
(5) (a) The board shall establish and adjust, as necessary, health underwriting criteria based on:
(i) health condition; and
(ii) expected claims so that the expected claims are anticipated to remain within available funding.
(b) The board, with approval of the commissioner, may contract with one or more providers under [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, to develop underwriting criteria under Subsection (5)(a).
(c) If an individual is denied coverage by the pool under the criteria established in Subsection (5)(a), the pool shall issue a certificate of insurability to the individual for coverage under Subsection 31A-30-108(3).
Section 396. Section 31A-29-116 is amended to read:
31A-29-116
. Notice of availability.The commissioner shall establish rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing notice of availability which is to be given by insurers to potential enrollees in the pool.
Section 397. Section 31A-30-106 is amended to read:
31A-30-106
. Premiums -- Rating restrictions -- Disclosure.(1) Premium rates for health benefit plans under this chapter are subject to the provisions of this Subsection (1).
(a) The index rate for a rating period for any class of business may not exceed the index rate for any other class of business by more than 20%.
(b) (i) For a class of business, the premium rates charged during a rating period to covered insureds with similar case characteristics for the same or similar coverage, or the rates that could be charged to such employers under the rating system for that class of business, may not vary from the index rate by more than 30% of the index rate, except as provided in Section 31A-22-625.
(ii) A covered carrier that offers individual and small employer health benefit plans may use the small employer index rates to establish the rate limitations for individual policies, even if some individual policies are rated below the small employer base rate.
(c) The percentage increase in the premium rate charged to a covered insured for a new rating period, adjusted pro rata for rating periods less than a year, may not exceed the sum of the following:
(i) the percentage change in the new business premium rate measured from the first day of the prior rating period to the first day of the new rating period;
(ii) any adjustment, not to exceed 15% annually and adjusted pro rata for rating periods of less than one year, due to the claim experience, health status, or duration of coverage of the covered individuals as determined from the covered carrier's rate manual for the class of business, except as provided in Section 31A-22-625; and
(iii) any adjustment due to change in coverage or change in the case characteristics of the covered insured as determined from the covered carrier's rate manual for the class of business.
(d) (i) Adjustments in rates for claims experience, health status, and duration from issue may not be charged to individual employees or dependents.
(ii) Any adjustment described in Subsection (1)(d)(i) shall be applied uniformly to the rates charged for all employees and dependents of the small employer.
(e) A covered carrier may use industry as a case characteristic in establishing premium rates, provided that the highest rate factor associated with any industry classification does not exceed the lowest rate factor associated with any industry classification by more than 15%.
(f) (i) Covered carriers shall apply rating factors, including case characteristics, consistently with respect to all covered insureds in a class of business.
(ii) Rating factors shall produce premiums for identical groups that:
(A) differ only by the amounts attributable to plan design; and
(B) do not reflect differences due to the nature of the groups assumed to select particular health benefit products.
(iii) A covered carrier shall treat all health benefit plans issued or renewed in the same calendar month as having the same rating period.
(g) For the purposes of this Subsection (1), a health benefit plan that uses a restricted network provision may not be considered similar coverage to a health benefit plan that does not use such a network, provided that use of the restricted network provision results in substantial difference in claims costs.
(h) The covered carrier may not, without prior approval of the commissioner, use case characteristics other than:
(i) age;
(ii) gender;
(iii) industry;
(iv) geographic area;
(v) family composition; and
(vi) group size.
(i) (i) The commissioner may establish rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(A) implement this chapter; and
(B) assure that rating practices used by covered carriers are consistent with the purposes of this chapter.
(ii) The rules described in Subsection (1)(i)(i) may include rules that:
(A) assure that differences in rates charged for health benefit products by covered carriers are reasonable and reflect objective differences in plan design, not including differences due to the nature of the groups assumed to select particular health benefit products;
(B) prescribe the manner in which case characteristics may be used by covered carriers;
(C) implement the individual enrollment cap under Section 31A-30-110, including specifying:
(I) the contents for certification;
(II) auditing standards;
(III) underwriting criteria for uninsurable classification; and
(IV) limitations on high risk enrollees under Section 31A-30-111; and
(D) establish the individual enrollment cap under Subsection 31A-30-110(1).
(j) Before implementing regulations for underwriting criteria for uninsurable classification, the commissioner shall contract with an independent consulting organization to develop industry-wide underwriting criteria for uninsurability based on an individual's expected claims under open enrollment coverage exceeding 200% of that expected for a standard insurable individual with the same case characteristics.
(k) The commissioner shall revise rules issued for Sections 31A-22-602 and 31A-22-605 regarding individual accident and health policy rates to allow rating in accordance with this section.
(2) For purposes of Subsection (1)(c)(i), if a health benefit product is a health benefit product into which the covered carrier is no longer enrolling new covered insureds, the covered carrier shall use the percentage change in the base premium rate, provided that the change does not exceed, on a percentage basis, the change in the new business premium rate for the most similar health benefit product into which the covered carrier is actively enrolling new covered insureds.
(3) (a) A covered carrier may not transfer a covered insured involuntarily into or out of a class of business.
(b) A covered carrier may not offer to transfer a covered insured into or out of a class of business unless the offer is made to transfer all covered insureds in the class of business without regard:
(i) to case characteristics;
(ii) claim experience;
(iii) health status; or
(iv) duration of coverage since issue.
(4) (a) Each covered carrier shall maintain at the covered carrier's principal place of business a complete and detailed description of its rating practices and renewal underwriting practices, including information and documentation that demonstrate that the covered carrier's rating methods and practices are:
(i) based upon commonly accepted actuarial assumptions; and
(ii) in accordance with sound actuarial principles.
(b) (i) Each covered carrier shall file with the commissioner, on or before April 1 of each year, in a form, manner, and containing such information as prescribed by the commissioner, an actuarial certification certifying that:
(A) the covered carrier is in compliance with this chapter; and
(B) the rating methods of the covered carrier are actuarially sound.
(ii) A copy of the certification required by Subsection (4)(b)(i) shall be retained by the covered carrier at the covered carrier's principal place of business.
(c) A covered carrier shall make the information and documentation described in this Subsection (4) available to the commissioner upon request.
(d) Records submitted to the commissioner under this section shall be maintained by the commissioner as protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 398. Section 31A-30-106.7 is amended to read:
31A-30-106.7
. Surcharge for groups changing carriers.(1) (a) Except as provided in Subsection (1)(b), if prior notice is given, a covered carrier may impose upon a small group that changes coverage to that carrier from another carrier a one-time surcharge of up to 25% of the annualized premium that the carrier could otherwise charge under Section 31A-30-106.
(b) A covered carrier may not impose the surcharge described in Subsection (1)(a) if:
(i) the change in carriers occurs on the anniversary of the plan year, as defined in Section 31A-1-301;
(ii) the previous coverage was terminated under Subsection 31A-30-107(3)(e); or
(iii) employees from an existing group form a new business.
(2) A covered carrier may not impose the surcharge described in Subsection (1) if the offer to cover the group occurs at a time other than the anniversary of the plan year because:
(a) (i) the application for coverage is made prior to the anniversary date in accordance with the covered carrier's published policies; and
(ii) the offer to cover the group is not issued until after the anniversary date; or
(b) (i) the application for coverage is made prior to the anniversary date in accordance with the covered carrier's published policies; and
(ii) additional underwriting or rating information requested by the covered carrier is not received until after the anniversary date.
(3) If a covered carrier chooses to apply a surcharge under Subsection (1), the application of the surcharge and the criteria for incurring or avoiding the surcharge shall be clearly stated in the:
(a) written application materials provided to the applicant at the time of application; and
(b) written producer guidelines.
(4) The commissioner shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to ensure compliance with this section.
Section 399. Section 31A-31-104 is amended to read:
31A-31-104
. Disclosure of information.(1) (a) Subject to Subsection (2), upon written request by an insurer to an authorized agency, the authorized agency may release to the insurer information or evidence that is relevant to any suspected insurance fraud.
(b) Upon written request by an authorized agency to an insurer, the insurer or an agent authorized by the insurer to act on the insurer's behalf shall release to the authorized agency information or evidence that is relevant to any suspected insurance fraud.
(2) (a) Any information or evidence furnished to an authorized agency under this section may be classified as a protected record in accordance with Subsection [63-2-304] 63G-2-305(9).
(b) Any information or evidence furnished to an insurer under this section is not subject to discovery in a civil proceeding unless, after reasonable notice to any insurer, agent, or any authorized agency that has an interest in the information and subsequent hearing, a court determines that the public interest and any ongoing criminal investigation will not be jeopardized by the disclosure.
(c) An insurer shall report to the department agency terminations based upon a violation of this chapter.
Section 400. Section 31A-31-106 is amended to read:
31A-31-106
. Disciplinary action.(1) If, after giving notice and a hearing conducted pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commissioner finds by a preponderance of the evidence that a person licensed under Title 31A has committed a fraudulent insurance act, the commissioner may suspend or revoke the license issued under Title 31A.
(2) If the appropriate licensing authority finds by a preponderance of the evidence that a service provider violated Section 31A-31-103, the service provider is subject to revocation or suspension of the service provider's license.
(3) The commissioner may notify the appropriate licensing authority of conduct by a service provider that the commissioner believes may constitute a fraudulent insurance act.
Section 401. Section 31A-31-108 is amended to read:
31A-31-108
. Assessment of insurers.(1) For purposes of this section:
(a) The commissioner shall by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, define:
(i) "annuity consideration";
(ii) "membership fees";
(iii) "other fees";
(iv) "deposit-type contract funds"; and
(v) "other considerations in Utah."
(b) "Utah consideration" means:
(i) the total premiums written for Utah risks;
(ii) annuity consideration;
(iii) membership fees collected by the insurer;
(iv) other fees collected by the insurer;
(v) deposit-type contract funds; and
(vi) other considerations in Utah.
(c) "Utah risks" means insurance coverage on the lives, health, or against the liability of persons residing in Utah, or on property located in Utah, other than property temporarily in transit through Utah.
(2) To implement this chapter, Section 34A-2-110, and Section 76-6-521, the commissioner may assess each admitted insurer and each nonadmitted insurer transacting insurance under Chapter 15, Parts 1 and 2, an annual fee as follows:
(a) $150 for an insurer if the sum of the Utah consideration for that insurer is less than or equal to $1,000,000;
(b) $400 for an insurer if the sum of the Utah consideration for that insurer is greater than $1,000,000 but is less than or equal to $2,500,000;
(c) $700 for an insurer if the sum of the Utah consideration for that insurer is greater than $2,500,000 but is less than or equal to $5,000,000;
(d) $1,350 for an insurer if the sum of the Utah consideration for that insurer is greater than $5,000,000 but less than or equal to $10,000,000;
(e) $5,150 for an insurer if the sum of the Utah consideration for that insurer is greater than $10,000,000 but less than $50,000,000; and
(f) $12,350 for an insurer if the sum of the Utah consideration for that insurer equals or exceeds $50,000,000.
(3) (a) All money received by the state under this section shall be deposited in the General Fund as a dedicated credit of the department for the purpose of providing funds to pay for any costs and expenses incurred by the department in the administration, investigation, and enforcement of this chapter, Section 34A-2-110, and Section 76-6-521.
(b) All monies received by the department to pay for the costs and expenses incurred by the department in the administration, investigation, and enforcement of this chapter, Section 34A-2-110, and Section 76-6-521 shall be nonlapsing.
Section 402. Section 31A-33-104 is amended to read:
31A-33-104
. Workers' Compensation Fund exempted.(1) The Workers' Compensation Fund is exempt from the provisions of:
(a) Title 52, Chapter 4, Open and Public Meetings Act;
(b) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(c) Title 63A, Utah Administrative Services Code.
(2) The board may specifically exempt the Workers' Compensation Fund from any provisions of:
(a) Title 67, Chapter 19, Utah State Personnel Management Act; and
(b) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(3) The provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, do not govern the initial determination of any person's eligibility for benefits under Title 34A, Chapter 2, Workers' Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act.
Section 403. Section 31A-33-107 is amended to read:
31A-33-107
. Duties of board -- Creation of subsidiaries -- Entering into joint enterprises.(1) The board shall:
(a) appoint a chief executive officer to administer the Workers' Compensation Fund;
(b) receive and act upon financial, management, and actuarial reports covering the operations of the Workers' Compensation Fund;
(c) ensure that the Workers' Compensation Fund is administered according to law;
(d) examine and approve an annual operating budget for the Workers' Compensation Fund;
(e) serve as investment trustees and fiduciaries of the Injury Fund;
(f) receive and act upon recommendations of the chief executive officer;
(g) develop broad policy for the long-term operation of the Workers' Compensation Fund, consistent with its mission and fiduciary responsibility;
(h) subject to Chapter 19a, Part 4, Workers' Compensation Rates, approve any rating plans that would modify a policyholder's premium;
(i) subject to Chapter 19a, Part 4, Workers' Compensation Rates, approve the amount of deviation, if any, from standard insurance rates;
(j) approve the amount of the dividends, if any, to be returned to policyholders;
(k) adopt a procurement policy consistent with the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(l) develop and publish an annual report to policyholders, the governor, the Legislature, and interested parties that describes the financial condition of the Injury Fund, including a statement of expenses and income and what measures were taken or will be necessary to keep the Injury Fund actuarially sound;
(m) establish a fiscal year;
(n) determine and establish an actuarially sound price for insurance offered by the fund;
(o) establish conflict of interest requirements that govern the board, officers, and employees;
(p) establish compensation and reasonable expenses to be paid to directors on the board subject to the requirements of Section 31A-33-106, so that the board may not approve compensation that exceeds the amount described in Subsection 31A-33-106(18)(a)(i)(B); and
(q) perform all other acts necessary for the policymaking and oversight of the Workers' Compensation Fund.
(2) Subject to board review and its responsibilities under Subsection (1)(e), the board may delegate authority to make daily investment decisions.
(3) The fund may form or acquire a subsidiary or enter into a joint enterprise:
(a) only if that action is approved by the board; and
(b) subject to the limitations in Section 31A-33-103.5.
Section 404. Section 31A-34-104 is amended to read:
31A-34-104
. Alliance -- Required license.(1) A person must be licensed as an alliance pursuant to this chapter to directly or indirectly make available or otherwise arrange for health insurance through multiple unaffiliated insurers through the use of coordinated actuarial models, coordinated underwriting, or coordinated marketing methodologies.
(2) (a) A person may not hold itself out as a health insurance purchasing alliance, purchasing alliance, health insurance purchasing cooperative, purchasing cooperative, or otherwise use a similar name unless licensed by the commissioner as an alliance.
(b) Notwithstanding Subsection (a), a person may hold itself out as a voluntary health insurance purchasing association without being licensed by the commissioner as provided in Section 31A-34-105.
(3) To apply for licensure as an alliance, a person shall complete an application in a form designated by the commissioner and file it with the commissioner, together with the applicable filing fees determined by the commissioner under Section [63-38-3.2] 63J-1-303.
Section 405. Section 31A-35-301 is amended to read:
31A-35-301
. The commissioner's authority.(1) The commissioner shall:
(a) make rules as necessary for the administration of this chapter;
(b) with information as provided by the board, issue or deny licensure under this chapter;
(c) take action regarding a license, including suspension or revocation; and
(d) maintain and publish a current list of licensed bail bond surety companies and producers.
(2) The commissioner may establish fees for the issuance, renewal, and reinstatement of a bail bond surety company license in accordance with Section [63-38-3.2] 63J-1-303.
Section 406. Section 31A-35-401 is amended to read:
31A-35-401
. Requirement for license or certificate of authority -- Process -- Fees -- Limitations.(1) (a) A person may not engage in the bail bond surety insurance business unless that person:
(i) is a bail bond surety company licensed under this chapter;
(ii) is a surety insurer that is granted a certificate under this section in the same manner as other insurers doing business in this state are granted certificates of authority under this title; or
(iii) is a bail bond producer licensed in accordance with this section.
(b) A bail bond surety company shall be licensed under this chapter as an agency.
(c) A bail bond producer shall be licensed under Chapter 23a, Insurance Marketing - Licensing Producers, Consultants, and Reinsurance Intermediaries, as a limited lines producer.
(2) A person applying for a bail bond surety company license under this chapter shall submit to the commissioner:
(a) a completed application form as prescribed by the commissioner;
(b) a fee as determined by the commissioner in accordance with Section [63-38-3.2] 63J-1-303; and
(c) any additional information required by rule.
(3) Fees required under this section are not refundable.
(4) Fees collected from a bail bond surety company shall be deposited in a restricted account created in Section 31A-35-407.
(5) (a) A bail bond surety company shall be domiciled in Utah.
(b) A bail bond producer shall be a resident of Utah.
(c) A foreign surety insurer that is granted a certificate to issue bail bonds may only issue bail bonds through a bail bond surety company licensed under this chapter.
Section 407. Section 31A-35-405 is amended to read:
31A-35-405
. Issuance of license -- Denial -- Right of appeal.(1) Upon a determination by the board that a person applying for a bail bond surety company license meets the requirements for issuance of a license under this chapter, the commissioner shall issue to that person a bail bond surety company license.
(2) (a) If the commissioner denies an application for a bail bond surety company license under this chapter, the commissioner shall provide prompt written notification to the person applying for licensure:
(i) stating the grounds for denial; and
(ii) notifying the person applying for licensure as a bail bond company that:
(A) the person is entitled to a hearing if that person wants to contest the denial; and
(B) if the person wants a hearing, the person shall submit the request in writing to the commissioner within 30 days after the issuance of the denial.
(b) The hearing described in Subsection (2)(a) shall be scheduled not later than 60 days after the commissioner's receipt of the request.
(c) The department shall hear the appeal, and may:
(i) return the case to the commissioner for reconsideration;
(ii) modify the commissioner's decision; or
(iii) reverse the commissioner's decision.
(3) A decision under this section is subject to review under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 408. Section 31A-35-406 is amended to read:
31A-35-406
. Renewal and reinstatement.(1) (a) To renew its license under this chapter, on or before the last day of the month in which the license expires a bail bond surety company shall:
(i) complete and submit a renewal application to the department; and
(ii) pay the department the applicable renewal fee established in accordance with Section [63-38-3.2] 63J-1-303.
(b) A bail bond surety company shall renew its license under this chapter annually as established by department rule, regardless of when the license is issued.
(2) A bail bond surety company may renew a bail bond surety company license not renewed under Subsection (1) within 30 days after the expiration date by:
(a) submitting a renewal application required by Subsection (1); and
(b) paying a late renewal fee established in accordance with Section [63-38-3.2] 63J-1-303.
(3) A bail bond surety company may apply for reinstatement of an expired bail bond surety company license between 31 days and six months following the expiration of the license under Subsection (1) by:
(a) submitting the renewal application required by Subsection (1); and
(b) paying a license reinstatement fee established in accordance with Section [63-38-3.2] 63J-1-303.
(4) If a bail bond surety company license has been expired for more than six months, the person applying for reinstatement of the bail bond surety license shall:
(a) submit an application form to the commissioner; and
(b) pay the application fee established in accordance with Section [63-38-3.2] 63J-1-303.
(5) If a bail bond surety company license is suspended, the applicant may not submit an application for a bail bond surety company license until after the end of the period of suspension.
(6) Fees collected under this section shall be deposited in the restricted account created in Section 31A-35-407.
Section 409. Section 31A-35-502 is amended to read:
31A-35-502
. Notification of violation of chapter.If the commissioner has reason to believe a person licensed as a bail bond surety company or a bail bond producer has violated this chapter, written notice shall be sent to that person, advising the person of:
(1) the alleged violation;
(2) the commissioner's authority to take action against the person's license;
(3) the person's right to an administrative hearing under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(4) the period of time within which the hearing described in Subsection (3) shall be requested if the person requests a hearing.
Section 410. Section 31A-36-104 is amended to read:
31A-36-104
. License requirements, revocation, and denial.(1) (a) A person may not, without first obtaining a license from the commissioner, operate in or from this state as:
(i) a viatical settlement provider; or
(ii) a viatical settlement producer.
(b) Viatical settlements are included within the scope of the life insurance producer line of authority.
(2) (a) To obtain a license as a viatical settlement provider, an applicant shall:
(i) comply with Section 31A-23a-117;
(ii) file an application; and
(iii) pay the license fee.
(b) If an applicant complies with Subsection (2)(a), the commissioner shall investigate the applicant and issue a license if the commissioner finds that the applicant is competent and trustworthy to engage in the business of providing viatical settlements by experience, training, or education.
(3) In addition to the requirements in Sections 31A-23a-111, 31A-23a-112 and 31A-23a-113, the commissioner may refuse to issue, suspend, revoke, or refuse to renew the license of a viatical settlement provider or viatical settlement producer if the commissioner finds that:
(a) a viatical settlement provider demonstrates a pattern of unreasonable payments to viators;
(b) the applicant, the licensee, an officer, partner, or member, or key management personnel:
(i) has, whether or not a judgment of conviction has been entered by the court, been found guilty of, or pleaded guilty or nolo contendere to:
(A) a felony; or
(B) a misdemeanor involving fraud or moral turpitude;
(ii) violated any provision of this chapter; or
(iii) has been subject to a final administrative action by another state or federal jurisdiction.
(c) a viatical settlement provider has entered into a viatical settlement not approved under this chapter;
(d) a viatical settlement provider has failed to honor obligations of a viatical settlement;
(e) a viatical settlement provider has assigned, transferred, or pledged a viaticated policy to a person other than:
(i) a viatical settlement provider licensed under this chapter;
(ii) a viatical settlement purchaser;
(iii) an accredited investor as defined in Regulation D, Rule 501, 17 C.F.R. Sec. 230.501;
(iv) a qualified institutional buyer as defined in Rule 144A, 17 C.F.R. Sec. 230.144A;
(v) a financing entity;
(vi) a special purpose entity; or
(vii) a related provider trust; or
(f) a viatical settlement provider has failed to maintain a standard set forth in Subsection (2)(b).
(4) If the commissioner denies a license application or suspends, revokes, or refuses to renew the license of a viatical settlement provider or viatical settlement producer, the commissioner shall conduct an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 411. Section 31A-36-115 is amended to read:
31A-36-115
. Confidentiality.(1) The following shall be classified as protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act:
(a) a document or information furnished pursuant to Section 31A-36-114; and
(b) a document or information obtained by the commissioner in an investigation of a violation of Section 31A-36-113.
(2) Subsection (1) does not prohibit the commissioner from disclosing documents or evidence so furnished or obtained:
(a) in an administrative or judicial proceeding to enforce laws administered by the commissioner;
(b) to federal, state, or local law enforcement or regulatory agencies;
(c) to an organization established to detect and prevent fraudulent viatical settlement acts;
(d) to the National Association of Insurance Commissioners; or
(e) to a person engaged in the business of viatical settlements that is aggrieved by the violation.
(3) Disclosure of a document or evidence under Subsection (2) does not abrogate or modify the privilege granted in Subsection (1).
Section 412. Section 31A-36-117 is amended to read:
31A-36-117
. Antifraud initiatives.(1) The following shall establish and maintain antifraud initiatives which are reasonably calculated to prevent, detect, and assist in the prosecution of violations of Section 31A-36-113:
(a) a viatical settlement provider; and
(b) an agency that is a viatical settlement producer.
(2) The commissioner may order, or a licensee may request and the commissioner may approve, modifications of the measures otherwise required under this section, more or less restrictive than those measures, as necessary to protect against fraud.
(3) Antifraud initiatives shall include:
(a) fraud investigators, that may be either:
(i) employees of a viatical settlement provider or viatical settlement producer; or
(ii) independent contractors;
(b) an antifraud plan submitted to the commissioner, which shall include:
(i) a description of the procedures for:
(A) detecting and investigating possible violations of Section 31A-36-113; and
(B) resolving material inconsistencies between medical records and applications for insurance;
(ii) a description of the procedures for reporting possible violations to the commissioner;
(iii) a description of the plan for educating and training underwriters and other personnel against fraud; and
(iv) a description or chart of the organizational arrangement of the personnel responsible for detecting and investigating possible violations of Section 31A-36-113 and for resolving material inconsistencies between medical records and applications for insurance.
(4) A plan submitted to the commissioner shall be classified as a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 413. Section 31A-36-119 is amended to read:
31A-36-119
. Authority to make rules.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may adopt rules to:
(1) establish the requirements for the annual statement required under Section 31A-36-106;
(2) establish standards for evaluating the reasonableness of payments under viatical settlements;
(3) establish appropriate licensing requirements, fees, and standards for continued licensure for:
(a) a viatical settlement provider; and
(b) a viatical settlement producer;
(4) require a bond or otherwise ensure financial accountability of:
(a) a viatical settlement provider; and
(b) a viatical settlement producer;
(5) govern the relationship of insurers with a viatical settlement provider or viatical settlement producer during the viatication of a policy;
(6) determine the specific disclosures required under Section 31A-36-108;
(7) determine whether advertising for viatical settlements violates Section 31A-36-112;
(8) determine the information to be provided to the commissioner under Section 31A-36-114 and the manner of providing the information;
(9) determine additional acts or practices that are prohibited under Section 31A-36-111;
(10) establish payment requirements for the payments in Section 31A-36-110; and
(11) establish the filing procedure for the forms listed in Subsection 31A-36-105(1).
Section 414. Section 31A-37-106 is amended to read:
31A-37-106
. Authority to make rules -- Authority to issue orders.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner may adopt rules to:
(a) determine circumstances under which a branch captive insurance company is not required to be a pure captive insurance company;
(b) determine any statement, document, or information a captive insurance company must provide to the commissioner to obtain a certificate of authority;
(c) determine any factors a captive insurance company shall provide evidence of under Subsection 31A-37-202(4)(c);
(d) prescribe capital requirements for a captive insurance company in addition to those required under Section 31A-37-204 based on the type, volume, and nature of insurance business transacted by the captive insurance company;
(e) establish:
(i) the amount of capital or surplus required to be retained under Subsection 31A-37-205(4) at the payment of a dividend or other distribution by a captive insurance company; or
(ii) a formula to determine the amount described in Subsection 31A-37-205(4);
(f) waive or modify the requirements for public notice and hearing for any of the following by a captive insurance company:
(i) merger;
(ii) consolidation;
(iii) conversion;
(iv) mutualization; or
(v) redomestication;
(g) approve the use of alternative reliable methods of valuation and rating for:
(i) an association captive insurance company;
(ii) a sponsored captive insurance company; or
(iii) an industrial insured group;
(h) prohibit or limit an investment that threatens the solvency or liquidity of:
(i) a pure captive insurance company; or
(ii) an industrial insured captive insurance company;
(i) determine the financial reports a sponsored captive insurance company shall annually file with the commissioner;
(j) determine the required forms and reports under Section 31A-37-501; and
(k) establish standards to ensure that a parent or affiliate of a pure captive insurance company is able to exercise control of the risk management function of any controlled unaffiliated business to be insured by the pure captive insurance company.
(2) Notwithstanding Subsection (1)(k), until the commissioner adopts the rules authorized under Subsection (1)(k), the commissioner may by temporary order grant authority to a pure captive insurance company to insure risks.
(3) The commissioner may issue prohibitory, mandatory, and other orders relating to captive insurance companies as necessary to enable the commissioner to secure compliance with this chapter.
Section 415. Section 31A-37-202 is amended to read:
31A-37-202
. Permissive areas of insurance.(1) (a) Except as provided in Subsection (1)(b), when permitted by its articles of incorporation or charter, a captive insurance company may apply to the commissioner for a certificate of authority to do all insurance authorized by this title except workers' compensation insurance.
(b) Notwithstanding Subsection (1)(a):
(i) a pure captive insurance company may not insure any risks other than those of its:
(A) parent and affiliates;
(B) controlled unaffiliated business; or
(C) a combination of Subsections (1)(b)(i)(A) and (B);
(ii) an association captive insurance company may not insure any risks other than those of the:
(A) member organizations of its association; and
(B) affiliates of the member organizations of its association;
(iii) an industrial insured captive insurance company may not insure any risks other than those of the:
(A) industrial insureds that comprise the industrial insured group; and
(B) affiliates of the industrial insureds that comprise the industrial insured group;
(iv) a special purpose captive insurance company may only insure the risk of its parent;
(v) a captive insurance company may not provide personal motor vehicle or homeowner's insurance coverage or any component of these coverages; and
(vi) a captive insurance company may not accept or cede reinsurance except as provided in Section 31A-37-303.
(c) Notwithstanding Subsection (1)(b)(iv), for risks approved by the commissioner a special purpose captive insurance company may provide:
(i) insurance;
(ii) reinsurance; or
(iii) both insurance and reinsurance.
(2) To conduct insurance business in this state a captive insurance company shall:
(a) obtain from the commissioner a certificate of authority authorizing it to conduct insurance business in this state;
(b) hold at least once each year in this state:
(i) a board of directors meeting; or
(ii) in the case of a reciprocal insurer, a subscriber's advisory committee meeting;
(c) maintain in this state:
(i) the principal place of business of the captive insurance company; or
(ii) in the case of a branch captive insurance company, the principal place of business for the branch operations of the branch captive insurance company; and
(d) except as provided in Subsection (3), appoint a resident registered agent to accept service of process and to otherwise act on behalf of the captive insurance company in this state.
(3) Notwithstanding Subsection (2)(d), in the case of a captive insurance company formed as a corporation or a reciprocal insurer, whenever the registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the commissioner shall be an agent of the captive insurance company upon whom any process, notice, or demand may be served.
(4) (a) Before receiving a certificate of authority, a captive insurance company:
(i) formed as a corporation shall file with the commissioner:
(A) a certified copy of:
(I) articles of incorporation or the charter of the corporation; and
(II) bylaws of the corporation;
(B) a statement under oath of the president and secretary of the corporation showing the financial condition of the corporation; and
(C) any other statement or document required by the commissioner under Section 31A-37-106;
(ii) formed as a reciprocal shall:
(A) file with the commissioner:
(I) a certified copy of the power of attorney of the attorney-in-fact of the reciprocal;
(II) a certified copy of the subscribers' agreement of the reciprocal;
(III) a statement under oath of the attorney-in-fact of the reciprocal showing the financial condition of the reciprocal; and
(IV) any other statement or document required by the commissioner under Section 31A-37-106; and
(B) submit to the commissioner for approval a description of the:
(I) coverages;
(II) deductibles;
(III) coverage limits;
(IV) rates; and
(V) any other information the commissioner requires under Section 31A-37-106.
(b) (i) If there is a subsequent material change in an item in the description required under Subsection (4)(a)(ii)(B) for a reciprocal captive insurance company, the reciprocal captive insurance company shall submit to the commissioner for approval an appropriate revision to the description required under Subsection (4)(a)(ii)(B).
(ii) A reciprocal captive insurance company that is required to submit a revision under Subsection (4)(b)(i) may not offer any additional kinds of insurance until the commissioner approves a revision of the description.
(iii) A reciprocal captive insurance company shall inform the commissioner of any material change in rates within 30 days of the adoption of the change.
(c) In addition to the information required by Subsection (4)(a), an applicant captive insurance company shall file with the commissioner evidence of:
(i) the amount and liquidity of the assets of the applicant captive insurance company relative to the risks to be assumed by the applicant captive insurance company;
(ii) the adequacy of the expertise, experience, and character of the person who will manage the applicant captive insurance company;
(iii) the overall soundness of the plan of operation of the applicant captive insurance company;
(iv) the adequacy of the loss prevention programs of the applicant captive insurance company's parent, member organizations, or industrial insureds, as applicable; and
(v) any other factors the commissioner:
(A) adopts by rule under Section 31A-37-106; and
(B) considers relevant in ascertaining whether the applicant captive insurance company will be able to meet the policy obligations of the applicant captive insurance company.
(d) In addition to the information required by Subsections (4)(a), (b), and (c), an applicant sponsored captive insurance company shall file with the commissioner:
(i) a business plan at the level of detail required by the commissioner under Section 31A-37-106 demonstrating:
(A) the manner in which the applicant sponsored captive insurance company will account for the losses and expenses of each protected cell; and
(B) the manner in which the applicant sponsored captive insurance company will report to the commissioner the financial history, including losses and expenses, of each protected cell;
(ii) a statement acknowledging that all financial records of the applicant sponsored captive insurance company, including records pertaining to any protected cell, shall be made available for inspection or examination by the commissioner;
(iii) any contract or sample contract between the applicant sponsored captive insurance company and any participant; and
(iv) evidence that expenses will be allocated to each protected cell in an equitable manner.
(e) Information submitted pursuant to this Subsection (4) shall be classified as a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(f) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the commissioner may disclose information submitted pursuant to this Subsection (4) to a public official having jurisdiction over the regulation of insurance in another state if:
(i) the public official receiving the information agrees in writing to maintain the confidentiality of the information; and
(ii) the laws of the state in which the public official serves require the information to be confidential.
(g) Subsections (4)(e) and (4)(f) do not apply to information provided by an industrial insured captive insurance company insuring the risks of an industrial insured group.
(5) (a) A captive insurance company shall pay to the department the following nonrefundable fees established by the department under Sections 31A-3-103 and [63-38-3.2] 63J-1-303:
(i) a fee for examining, investigating, and processing, by department employees, of an application for a certificate of authority made by a captive insurance company;
(ii) a fee for obtaining a certificate of authority for the year the captive insurance company is issued a certificate of authority by the department; and
(iii) a certificate of authority renewal fee.
(b) The commissioner may retain legal, financial, and examination services from outside the department to perform the services under Subsection (5)(a) and Section 31A-37-502 and charge the reasonable cost of those services against the applicant captive insurance company.
(6) If the commissioner is satisfied that the documents and statements filed by the applicant captive insurance company comply with the provisions of this chapter, the commissioner may grant a certificate of authority authorizing the company to do insurance business in this state.
(7) A certificate of authority granted under this section expires annually and must be renewed by July 1 of each year.
Section 416. Section 31A-37-503 is amended to read:
31A-37-503
. Classification and use of records.(1) The following shall be classified as a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act:
(a) examination reports under this section;
(b) preliminary examination reports or results under this section;
(c) working papers for an examination conducted under this section;
(d) recorded information for an examination conducted under this section; and
(e) documents and copies of documents produced by, obtained by, or disclosed to the commissioner or any other person in the course of an examination conducted under this section.
(2) This section does not prevent the commissioner from using the information provided under this section in furtherance of the commissioner's regulatory authority under this title.
(3) Notwithstanding other provisions of this section, the commissioner may grant access to the information provided under this section to:
(a) public officers having jurisdiction over the regulation of insurance in any other state or country; or
(b) law enforcement officers of this state or any other state or agency of the federal government, if the officers receiving the information agree in writing to hold the information in a manner consistent with this section.
Section 417. Section 31A-37-602 is amended to read:
31A-37-602
. Requirements of a captive reinsurance company.(1) (a) If permitted by its articles of incorporation or charter, a captive reinsurance company may apply to the commissioner for a license to write reinsurance covering:
(i) property and casualty insurance; or
(ii) reinsurance contracts.
(b) A captive reinsurance company authorized by the commissioner may write reinsurance contracts covering risks in any state.
(2) To conduct business in this state, a captive reinsurance company shall:
(a) obtain from the commissioner a license authorizing it to conduct business as a captive reinsurance company in this state;
(b) hold at least one board of directors' meeting each year in this state;
(c) maintain its principal place of business in this state; and
(d) appoint a registered agent to accept service of process and act otherwise on its behalf in this state.
(3) Before receiving a license, a captive reinsurance company shall file with the commissioner:
(a) a certified copy of its:
(i) (A) articles of incorporation; or
(B) charter; and
(ii) bylaws;
(b) a statement under oath of its president and secretary showing its financial condition; and
(c) other documents required by the commissioner.
(4) In addition to the information required by Subsection (3), the applicant captive reinsurance company shall file with the commissioner evidence of:
(a) the amount and liquidity of the captive reinsurance company's assets relative to the risks to be assumed;
(b) the adequacy of the expertise, experience, and character of the person who manages the captive reinsurance company;
(c) the overall soundness of the captive reinsurance company's plan of operation; and
(d) other overall factors considered relevant by the commissioner in ascertaining if the proposed captive reinsurance company is able to meet its policy obligations.
(5) (a) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, information submitted pursuant to this section is confidential and may not be made public by the commissioner or an agent or employee of the commissioner without the written consent of the company, except that:
(i) information may be discoverable by a party in a civil action or contested case to which the submitting captive reinsurance company is a party, upon a showing by the party seeking to discover the information that:
(A) the information sought is relevant to and necessary for the furtherance of the action or case;
(B) the information sought is unavailable from other nonconfidential sources; and
(C) a subpoena issued by a judicial or administrative law officer of competent jurisdiction has been submitted to the commissioner; and
(ii) the commissioner may disclose the information to the public officer having jurisdiction over the regulation of insurance in another state if:
(A) the public official agrees in writing to maintain the confidentiality of the information; and
(B) the laws of the state in which the public official serves require the information to be confidential.
(b) This Subsection (5) does not apply to an industrial insured captive reinsurance company insuring the risks of an industrial insured group.
Section 418. Section 32A-1-115 is amended to read:
32A-1-115
. Alcoholic Beverage Enforcement and Treatment Restricted Account -- Distribution.(1) As used in this section:
(a) "Account" means the Alcoholic Beverage Enforcement and Treatment Restricted Account created in this section.
(b) "Alcohol-related offense" means:
(i) a violation of:
(A) Section 41-6a-502; or
(B) an ordinance that complies with the requirements of:
(I) Subsection 41-6a-510(1); or
(II) Section 76-5-207; or
(ii) an offense involving the:
(A) illegal sale of alcohol;
(B) illegal distribution of alcohol;
(C) illegal transportation of alcohol;
(D) illegal possession of alcohol; or
(E) illegal consumption of alcohol.
(c) "Annual conviction time period" means the time period that:
(i) begins on July 1 and ends on June 30; and
(ii) immediately precedes the fiscal year for which an appropriation under this section is made.
(d) "Coordinating council" means the Utah Substance Abuse and Anti-Violence Coordinating Council created in Section [63-25a-201] 63M-7-301.
(e) "Municipality" means:
(i) a city; or
(ii) a town.
(2) (a) There is created in the General Fund a restricted account called the "Alcoholic Beverage Enforcement and Treatment Restricted Account."
(b) The account shall be funded from:
(i) amounts deposited by the state treasurer in accordance with Section 59-15-109;
(ii) any appropriations made to the account by the Legislature; and
(iii) interest described in Subsection (2)(c).
(c) Interest earned on the account shall be deposited into the account.
(d) (i) Consistent with the policies provided in Subsection 32A-1-104(4)(b), the revenues in the account shall be used for statewide public purposes including promoting the reduction of the harmful effects of over consumption of alcoholic beverages by adults and alcohol consumption by minors by funding exclusively programs or projects related to prevention, treatment, detection, prosecution, and control of violations of this title and other offenses in which alcohol is a contributing factor except as provided in Subsection (2)(d)(ii).
(ii) The portion distributed under this section to counties may also be used for the confinement or treatment of persons arrested for or convicted of offenses in which alcohol is a contributing factor.
(iii) Any municipality or county entitled to receive funds shall use the funds exclusively as required by this Subsection (2)(d).
(iv) The appropriations provided for under Subsection (3) are:
(A) intended to supplement the budget of the appropriate agencies of each municipality and county within the state to enable the municipalities and counties to more effectively fund the programs and projects described in this Subsection (2)(d); and
(B) not intended to replace funds that would otherwise be allocated for the programs and projects in this Subsection (2)(d).
(3) (a) The revenues deposited into the account shall be distributed to municipalities and counties:
(i) to the extent appropriated by the Legislature except that the Legislature shall appropriate each fiscal year an amount equal to at least the amount deposited in the account in accordance with Section 59-15-109; and
(ii) as provided in this Subsection (3).
(b) The amount appropriated from the account shall be distributed as follows:
(i) 25% to municipalities and counties based upon the percentage of the state population residing in each municipality and county;
(ii) 30% to municipalities and counties based upon each municipality's and county's percentage of the statewide convictions for all alcohol-related offenses;
(iii) 20% to municipalities and counties based upon the percentage of all state stores, package agencies, liquor licensees, and beer licensees in the state that are located in each municipality and county; and
(iv) 25% to the counties for confinement and treatment purposes authorized by this section based upon the percentage of the state population located in each county.
(c) (i) Except as provided in Subsection (3)(c)(iii), a municipality that does not have a law enforcement agency may not receive monies under this section.
(ii) The State Tax Commission:
(A) may not distribute the monies the municipality would receive but for the municipality not having a law enforcement agency to that municipality; and
(B) shall distribute the monies that the municipality would have received but for it not having a law enforcement agency to the county in which the municipality is located for use by the county in accordance with this section.
(iii) Notwithstanding Subsections (3)(c)(i) and (ii), if the coordinating council finds that a municipality described in Subsection (3)(c)(i) demonstrates that the municipality can use the monies that the municipality is otherwise eligible to receive in accordance with this section, the coordinating council may direct the State Tax Commission to distribute the money to the municipality.
(4) To determine the distributions required by Subsection (3)(b)(ii), the State Tax Commission shall annually:
(a) for an annual conviction time period:
(i) multiply by two the total number of convictions in the state obtained during the annual conviction time period for violation of:
(A) Section 41-6a-502; or
(B) an ordinance that complies with the requirements of Subsection 41-6a-510(1) or Section 76-5-207; and
(ii) add to the number calculated under Subsection (4)(a)(i) the number of convictions obtained during the annual conviction time period for all alcohol-related offenses other than the alcohol-related offenses described in Subsection (4)(a)(i);
(b) divide an amount equal to 30% of the appropriation for that fiscal year by the sum obtained in Subsection (4)(a); and
(c) multiply the amount calculated under Subsection (4)(b), by the number of convictions obtained in each municipality and county during the annual conviction time period for alcohol-related offenses.
(5) For purposes of this section:
(a) the number of state stores, package agencies, and licensees located within the limits of each municipality and county:
(i) is the number determined by the department to be so located;
(ii) includes all:
(A) private clubs;
(B) restaurants;
(C) limited restaurants;
(D) on-premise banquet licenses;
(E) airport lounges;
(F) package agencies; and
(G) state stores; and
(iii) does not include on-premise beer retailer licensees;
(b) the number of state stores, package agencies, and licensees in a county consists only of that number located within unincorporated areas of the county;
(c) population figures shall be determined according to the most current population estimates prepared by the Utah Population Estimates Committee;
(d) a county's population figure for the 25% distribution to municipalities and counties under Subsection (3)(b)(i) shall be determined only with reference to the population in the unincorporated areas of the county;
(e) a county's population figure under Subsection (3)(b)(iv) for the 25% distribution to counties only shall be determined with reference to the total population in the county, including that of municipalities;
(f) a conviction occurs in the municipality or county that actually prosecutes the offense to judgment; and
(g) in the case of a conviction based upon a guilty plea, the conviction is considered to occur in the municipality or county that, except for the guilty plea, would have prosecuted the offense.
(6) By not later than September 1 each year:
(a) the state court administrator shall certify to the State Tax Commission the number of convictions obtained for alcohol-related offenses in each municipality or county in the state during the annual conviction time period; and
(b) the coordinating council shall notify the State Tax Commission of any municipality that does not have a law enforcement agency.
(7) By not later than December 1 of each year, the coordinating council shall notify the State Tax Commission for the fiscal year of appropriation of:
(a) any municipality that may receive a distribution under Subsection (3)(c)(iii);
(b) any county that may receive a distribution allocated to a municipality described in Subsection (3)(c)(ii);
(c) any municipality or county that may not receive a distribution because the coordinating council has suspended the payment under Subsection (10)(a)(i); and
(d) any municipality or county that receives a distribution because the suspension of payment has been cancelled under Subsection (10)(a)(ii).
(8) (a) By not later than January 1 of the fiscal year of appropriation, the State Tax Commission shall annually distribute to each municipality and county the portion of the appropriation that the municipality or county is eligible to receive under this section, except for any municipality or county that the coordinating council notifies the State Tax Commission in accordance with Subsection (7) may not receive a distribution in that fiscal year.
(b) (i) The State Tax Commission shall prepare forms for use by municipalities and counties in applying for distributions under this section.
(ii) The forms described in this Subsection (8) may require the submission of information the State Tax Commission considers necessary to enable the State Tax Commission to comply with this section.
(9) A municipality or county that receives any monies under this section during a fiscal year shall by no later than October 1 following the fiscal year:
(a) report to the coordinating council:
(i) the programs or projects of the municipality or county that receive monies under this section;
(ii) if the monies for programs or projects were exclusively used as required by Subsection (2)(d);
(iii) indicators of whether the programs or projects that receive monies under this section are effective; and
(iv) if any monies received under this section were not expended by the municipality or county; and
(b) provide the coordinating council a statement signed by the chief executive officer of the county or municipality attesting that the monies received under this section were used in addition to any monies appropriated or otherwise available for the county's or municipality's law enforcement and were not used to supplant those monies.
(10) (a) The coordinating council may, by a majority vote:
(i) suspend future payments under Subsection (8) to a municipality or county that:
(A) does not file a report that meets the requirements of Subsection (9); or
(B) the coordinating council finds does not use the monies as required by Subsection (2)(d) on the basis of the report filed by the municipality or county under Subsection (9); and
(ii) cancel a suspension under Subsection (10)(a)(i).
(b) The State Tax Commission shall:
(i) retain monies that a municipality or county does not receive under Subsection (10)(a); and
(ii) notify the coordinating council of the balance of retained monies under this Subsection (10)(b) after the annual distribution under Subsection (8).
(11) (a) Subject to the requirements of this Subsection (11), the coordinating council shall award the balance of retained monies under Subsection (10)(b):
(i) as prioritized by majority vote of the coordinating council; and
(ii) as grants to:
(A) a county;
(B) a municipality;
(C) the Department of Alcoholic Beverage Control;
(D) the Department of Human Services;
(E) the Department of Public Safety; or
(F) the Utah State Office of Education.
(b) By not later than May 30 of the fiscal year of the appropriation, the coordinating council shall notify the State Tax Commission of any grants awarded under this Subsection (11).
(c) The State Tax Commission shall make payments of grants:
(i) upon receiving notice as provided under Subsection (11)(b); and
(ii) by not later than June 30 of the fiscal year of the appropriation.
(d) An entity that receives a grant under this Subsection (11) shall use the grant monies exclusively for programs or projects described in Subsection (2)(d).
Section 419. Section 32A-1-118 is amended to read:
32A-1-118
. Liability insurance -- Governmental immunity.(1) The department shall maintain insurance against loss on each motor vehicle operated by it on any public highway. Each motor vehicle shall be covered for:
(a) any liability imposed by law upon the department for damages from bodily injuries suffered by any person or persons by reason of the ownership, maintenance, or use of the motor vehicle; and
(b) any liability or loss from damage to or destruction of property of any description, including liability of the department for the resultant loss of use of the property, which results from accident due to the ownership, maintenance, or use of the motor vehicle.
(2) The department is liable to respond in damages in all cases if a private corporation under the same circumstances would be liable.
(3) The provisions of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, apply in all actions commenced against the department in any action for damages sustained as a result of department ownership, maintenance, or use of motor vehicles under Subsections (1) and (2). Immunity from suit against the commission or any member of the commission, is in all respects retained in any such action.
Section 420. Section 32A-1-119 is amended to read:
32A-1-119
. Disciplinary proceedings -- Procedure.(1) (a) As used in this section and Section 32A-1-120, "disciplinary proceeding" means an adjudicative proceeding permitted under this title:
(i) against:
(A) a permittee;
(B) a licensee;
(C) a manufacturer;
(D) a supplier;
(E) an importer;
(F) an out-of-state brewer holding a certificate of approval under Section 32A-8-101; or
(G) an officer, employee, or agent of:
(I) a person listed in Subsections (1)(a)(i)(A) through (F); or
(II) a package agent; and
(ii) that is brought on the basis of a violation of this title.
(b) As used in Subsection (4), "final adjudication" means an adjudication for which a final unappealable judgment or order has been issued.
(2) (a) The following may conduct adjudicative proceedings to inquire into any matter necessary and proper for the administration of this title and rules adopted under this title:
(i) the commission;
(ii) a hearing examiner appointed by the commission for the purposes provided in Subsection 32A-1-107(3);
(iii) the director; and
(iv) the department.
(b) Except as provided in this section or Section 32A-3-106, the following shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in adjudicative proceedings:
(i) the commission;
(ii) a hearing examiner appointed by the commission;
(iii) the director; and
(iv) the department.
(c) Except where otherwise provided by law, all adjudicative proceedings before the commission or its appointed hearing examiner shall be:
(i) video or audio recorded; and
(ii) subject to Subsection (5)(e), conducted in accordance with Title 52, Chapter 4, Open and Public Meetings Act.
(d) All adjudicative proceedings concerning departmental personnel shall be conducted in accordance with Title 67, Chapter 19, Utah State Personnel Management Act.
(e) All hearings that are informational, fact gathering, and nonadversarial in nature shall be conducted in accordance with rules, policies, and procedures promulgated by the commission, director, or department.
(3) (a) A disciplinary proceeding shall be conducted under the authority of the commission, which is responsible for rendering a final decision and order on any disciplinary matter.
(b) (i) Nothing in this section precludes the commission from appointing necessary officers, including hearing examiners, from within or without the department, to administer the disciplinary proceeding process.
(ii) A hearing examiner appointed by the commission:
(A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
(B) shall submit to the commission a report including:
(I) findings of fact determined on the basis of a preponderance of the evidence presented at the hearing;
(II) conclusions of law; and
(III) recommendations.
(c) Nothing in this section precludes the commission, after the commission has rendered its final decision and order, from having the director prepare, issue, and cause to be served on the parties the final written order on behalf of the commission.
(4) (a) The department may initiate a disciplinary proceeding described in Subsection (4)(b) when the department receives:
(i) a report from any government agency, peace officer, examiner, or investigator alleging that any person listed in Subsections (1)(a)(i)(A) through (G) has violated this title or the rules of the commission;
(ii) a final adjudication of criminal liability against any person listed in Subsections (1)(a)(i)(A) through (G) based on an alleged violation of this title; or
(iii) a final adjudication of civil liability under Chapter 14a, Alcoholic Beverage Liability, against any person listed in Subsections (1)(a)(i)(A) through (G) based on an alleged violation of this title.
(b) The department may initiate a disciplinary proceeding if the department receives an item listed in Subsection (4)(a) to determine:
(i) whether any person listed in Subsections (1)(a)(i)(A) through (G) violated this title or rules of the commission; and
(ii) if a violation is found, the appropriate sanction to be imposed.
(5) (a) Unless waived by the respondent, a disciplinary proceeding shall be held:
(i) if required by law;
(ii) before revoking or suspending any permit, license, or certificate of approval issued under this title; or
(iii) before imposing a fine against any person listed in Subsections (1)(a)(i)(A) through (G).
(b) Inexcusable failure of a respondent to appear at a scheduled disciplinary proceeding hearing after receiving proper notice is an admission of the charged violation.
(c) The validity of a disciplinary proceeding is not affected by the failure of any person to attend or remain in attendance.
(d) All disciplinary proceeding hearings shall be presided over by the commission or an appointed hearing examiner.
(e) A disciplinary proceeding hearing may be closed only after the commission or hearing examiner makes a written finding that the public interest in an open hearing is clearly outweighed by factors enumerated in the closure order.
(f) (i) The commission or its hearing examiner as part of a disciplinary proceeding hearing may:
(A) administer oaths or affirmations;
(B) take evidence;
(C) take depositions within or without this state; and
(D) require by subpoena from any place within this state:
(I) the testimony of any person at a hearing; and
(II) the production of any books, records, papers, contracts, agreements, documents, or other evidence considered relevant to the inquiry.
(ii) A person subpoenaed in accordance with this Subsection (5)(f) shall testify and produce any books, papers, documents, or tangible things as required in the subpoena.
(iii) Any witness subpoenaed or called to testify or produce evidence who claims a privilege against self-incrimination may not be compelled to testify, but the commission or the hearing examiner shall file a written report with the county attorney or district attorney in the jurisdiction where the privilege was claimed or where the witness resides setting forth the circumstance of the claimed privilege.
(iv) (A) A person is not excused from obeying a subpoena without just cause.
(B) Any district court within the judicial district in which a person alleged to be guilty of willful contempt of court or refusal to obey a subpoena is found or resides, upon application by the party issuing the subpoena, may issue an order requiring the person to:
(I) appear before the issuing party; and
(II) (Aa) produce documentary evidence if so ordered; or
(Bb) give evidence regarding the matter in question.
(C) Failure to obey an order of the court may be punished by the court as contempt.
(g) (i) In all disciplinary proceeding hearings heard by a hearing examiner, the hearing examiner shall prepare a report required by Subsection (3)(b)(ii) to the commission.
(ii) The report required by Subsection (3)(b)(ii) and this Subsection (5)(g) may not recommend a penalty more severe than that initially sought by the department in the notice of agency action.
(iii) A copy of the report required by Subsection (3)(b)(ii) and this Subsection (5)(g) shall be served upon the respective parties.
(iv) The respondent and the department shall be given reasonable opportunity to file any written objections to the report required by Subsection (3)(b)(ii) and this Subsection (5)(g) before final commission action.
(h) In all cases heard by the commission, it shall issue its final decision and order in accordance with Subsection (3).
(6) (a) The commission shall:
(i) render a final decision and order on any disciplinary action; and
(ii) cause its final order to be prepared in writing, issued, and served on all parties.
(b) Any order of the commission is considered final on the date the order becomes effective.
(c) If the commission is satisfied that a person listed in Subsections (1)(a)(i)(A) through (G) has committed a violation of this title or the commission's rules, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commission may:
(i) suspend or revoke the permit, license, or certificate of approval;
(ii) impose a fine against a person listed in Subsections (1)(a)(i)(A) through (G);
(iii) assess the administrative costs of any disciplinary proceeding to the permittee, the licensee, or certificate holder; or
(iv) any combination of Subsections (6)(c)(i) through (iii).
(d) A fine imposed in accordance with this Subsection (6) is subject to Subsections 32A-1-107(1)(p) and (4).
(e) (i) If a permit or license is suspended under this Subsection (6), a sign provided by the department shall be prominently posted:
(A) during the suspension;
(B) by the permittee or licensee; and
(C) at the entrance of the premises of the permittee or licensee.
(ii) The sign required by this Subsection (6)(e) shall:
(A) read "The Utah Alcoholic Beverage Control Commission has suspended the alcoholic beverage license or permit of this establishment. Alcoholic beverages may not be sold, served, furnished, or consumed on these premises during the period of suspension."; and
(B) include the dates of the suspension period.
(iii) A permittee or licensee may not remove, alter, obscure, or destroy a sign required to be posted under this Subsection (6)(e) during the suspension period.
(f) If a permit or license is revoked, the commission may order the revocation of any compliance bond posted by the permittee or licensee.
(g) Any permittee or licensee whose permit or license is revoked may not reapply for a permit or license under this title for three years from the date on which the permit or license is revoked.
(h) All costs assessed by the commission shall be transferred into the General Fund in accordance with Section 32A-1-113.
(7) (a) In addition to any action taken against a permittee, licensee, or certificate holder under this section, the department may initiate disciplinary action against an officer, employee, or agent of a permittee, licensee, or certificate holder.
(b) If any officer, employee, or agent is found to have violated this title, the commission may prohibit the officer, employee, or agent from serving, selling, distributing, manufacturing, wholesaling, warehousing, or handling alcoholic beverages in the course of employment with any permittee, licensee, or certificate holder under this title for a period determined by the commission.
(8) (a) The department may initiate a disciplinary proceeding for an alleged violation of this title or the rules of the commission against:
(i) a manufacturer, supplier, or importer of alcoholic beverages; or
(ii) an officer, employee, agent, or representative of a person listed in Subsection (8)(a)(i).
(b) (i) If the commission makes the finding described in Subsection (8)(b)(ii), the commission may, in addition to other penalties prescribed by this title, order:
(A) the removal of the manufacturer's, supplier's, or importer's products from the department's sales list; and
(B) a suspension of the department's purchase of the products described in Subsection (8)(b)(i)(A) for a period determined by the commission.
(ii) The commission may take the action described in Subsection (8)(b)(i) if:
(A) any manufacturer, supplier, or importer of liquor, wine, or heavy beer or its officer, employee, agent, or representative violates any provision of this title; and
(B) the manufacturer, supplier, or importer:
(I) directly committed the violation; or
(II) solicited, requested, commanded, encouraged, or intentionally aided another to engage in the violation.
(9) (a) The department may initiate a disciplinary proceeding against a brewer holding a certificate of approval under Section 32A-8-101 for an alleged violation of this title or the rules of the commission.
(b) If the commission makes a finding that the brewer holding a certificate of approval violates this title or rules of the commission, the commission may take any action against the brewer holding a certificate of approval that the commission could take against a licensee including:
(i) suspension or revocation of the certificate of approval; and
(ii) imposition of a fine.
(10) (a) If a respondent requests a disciplinary proceeding hearing, the hearing held by the commission or a hearing examiner appointed by the commission shall proceed formally in accordance with Sections [63-46b-6] 63G-4-204 through [63-46b-11] 63G-4-209 in any case where:
(i) the alleged violation poses, or potentially poses, a grave risk to public safety, health, and welfare;
(ii) the alleged violation involves:
(A) selling, serving, or otherwise furnishing alcoholic products to a minor;
(B) attire, conduct, or entertainment prohibited by Part 6, Attire, Conduct, and Entertainment Act;
(C) fraud, deceit, willful concealment, or misrepresentation of the facts by or on behalf of the respondent;
(D) interfering or refusing to cooperate with:
(I) an authorized official of the department or the state in the discharge of the official's duties in relation to the enforcement of this title; or
(II) a peace officer in the discharge of the peace officer's duties in relation to the enforcement of this title;
(E) an unlawful trade practice under Sections 32A-12-601 through 32A-12-606;
(F) unlawful importation of alcoholic products; or
(G) unlawful supply of liquor by a liquor industry member, as defined in Subsection 32A-12-601(2), to any person other than the department or a military installation, except to the extent permitted by this title; or
(iii) the department determines to seek in a disciplinary proceeding hearing:
(A) an administrative fine exceeding $3,000;
(B) a suspension of a license, permit, or certificate of approval of more than ten days; or
(C) a revocation of a license, permit, or certificate of approval.
(b) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to provide a procedure to implement this Subsection (10).
Section 421. Section 32A-1-120 is amended to read:
32A-1-120
. Judicial review -- Enforcement.(1) In a disciplinary proceeding, as defined in Section 32A-1-119, a respondent found in a final order of the commission to have violated this title or rules of the commission made under this title may seek judicial review in a court of competent jurisdiction pursuant to the judicial review provisions of Sections [63-46b-14] 63G-4-401 through [63-46b-18] 63G-4-405.
(2) Notwithstanding Subsection [63-46b-16] 63G-4-403(4)(g), an appellate court may not grant relief on the basis that a finding of fact by the commission in a formal disciplinary proceeding is not supported, if the commission's finding of fact is supported by any evidence of substance in the record of the formal disciplinary proceeding when viewed in light of the whole record before the court.
(3) In addition to any other remedy provided by law, the commission may seek enforcement of a commission order in a disciplinary proceeding by seeking civil enforcement in a state district court in accordance with Section [63-46b-19] 63G-4-501.
Section 422. Section 32A-1-603 is amended to read:
32A-1-603
. Sexually oriented entertainer.(1) Subject to the restrictions of this section, live entertainment is permitted on a premises or at an event regulated by the commission.
(2) Notwithstanding Subsection (1), a licensee or permittee may not permit a person to:
(a) appear or perform in a state of nudity;
(b) perform or simulate an act of:
(i) sexual intercourse;
(ii) masturbation;
(iii) sodomy;
(iv) bestiality;
(v) oral copulation;
(vi) flagellation; or
(v) a sexual act that is prohibited by Utah law; or
(c) touch, caress, or fondle the breast, buttocks, anus, or genitals.
(3) A sexually oriented entertainer may perform in a state of seminudity:
(a) only in a tavern or class D private club; and
(b) only if:
(i) all windows, doors, and other apertures to the premises are darkened or otherwise constructed to prevent anyone outside the premises from seeing the performance; and
(ii) the outside entrance doors of the premises remain unlocked.
(4) A sexually oriented entertainer may perform only upon a stage or in a designated performance area that is:
(a) approved by the commission in accordance with rules made by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) configured so as to preclude a patron from:
(i) touching the sexually oriented entertainer; or
(ii) placing any money or object on or within the costume or the person of the sexually oriented entertainer; and
(c) configured so as to preclude the sexually oriented entertainer from touching a patron.
(5) A sexually oriented entertainer may not touch a patron:
(a) during the sexually oriented entertainer's performance; or
(b) while the sexually oriented entertainer is dressed in performance attire or costume.
(6) A sexually oriented entertainer, while in the portion of the premises used by patrons, must be dressed in opaque clothing which covers and conceals the sexually oriented entertainer's performance attire or costume from the top of the breast to the knee.
(7) A patron may not be on the stage or in the performance area while a sexually oriented entertainer is appearing or performing on the stage or in the performance area.
(8) A patron may not:
(a) touch a sexually oriented entertainer:
(i) during the sexually oriented entertainer's performance; or
(ii) while the sexually oriented entertainer is dressed in performance attire or costume; or
(b) place money or any other object on or within the costume or the person of the sexually oriented entertainer.
(9) A minor may not be on a premises described in Subsection (3) when a sexually oriented entertainer is performing on the premises.
(10) A person who appears or performs for the entertainment of patrons on a premises or at an event regulated by the commission that is not a tavern or class D private club:
(a) may not appear or perform in a state of nudity or a state of seminudity; and
(b) may appear or perform in opaque clothing that completely covers the person's genitals, pubic area, and anus if the covering:
(i) is not less than the following at its widest point:
(A) four inches coverage width in the front of the human body; and
(B) five inches coverage width in the back of the human body;
(ii) does not taper to less than one inch wide at the narrowest point; and
(iii) if covering a female, completely covers the breast below the top of the areola.
Section 423. Section 32A-4-103 is amended to read:
32A-4-103
. Qualifications.(1) (a) The commission may not grant a restaurant liquor license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for a restaurant has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a restaurant liquor license if after the day on which the restaurant liquor license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of a restaurant liquor license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a restaurant liquor license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a restaurant liquor license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a restaurant liquor license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) a partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a restaurant liquor license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member of a limited liability company who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted a restaurant liquor license.
(b) The commission may not grant a restaurant liquor license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 424. Section 32A-4-203 is amended to read:
32A-4-203
. Qualifications.(1) (a) The commission may not grant an airport lounge liquor license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for an airport lounge has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke an airport lounge license if after the day on which the airport lounge license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of an airport lounge liquor license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant an airport lounge liquor license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant an airport lounge liquor license to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or a stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) A corporation or partnership applicant may not be granted an airport lounge liquor license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted an airport lounge liquor license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owns at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted an airport lounge liquor license.
(b) The commission may not grant an airport lounge liquor license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 425. Section 32A-4-304 is amended to read:
32A-4-304
. Qualifications.(1) (a) The commission may not grant a limited restaurant license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the limited restaurant has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a limited restaurant license if after the day on which the limited restaurant license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of the limited restaurant license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii) or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a limited restaurant license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a limited restaurant license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member of any limited liability company who owns or owned at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a limited restaurant license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in their individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a limited restaurant license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member of a limited liability company who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted a limited restaurant license.
(b) The commission may not grant a limited restaurant license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 426. Section 32A-4-403 is amended to read:
32A-4-403
. Qualifications.(1) (a) The commission may not grant an on-premise banquet license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the on-premise banquet licensee has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke an on-premise banquet license if after the day on which the on-premise banquet license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of an on-premise banquet license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant an on-premise banquet license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant an on-premise banquet license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted an on-premise banquet license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in their individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted an on-premise banquet license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted an on-premise banquet license.
(b) The commission may not grant an on-premise banquet license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 427. Section 32A-4-406 is amended to read:
32A-4-406
. Operational restrictions.Each person granted an on-premise banquet license and the employees and management personnel of the on-premise banquet licensee shall comply with this title, the rules of the commission, and the following conditions and requirements. Failure to comply may result in a suspension or revocation of the license or other disciplinary action taken against individual employees or management personnel.
(1) A person involved in the sale or service of alcoholic beverages under the on-premise banquet license shall:
(a) be under the supervision and direction of the on-premise banquet licensee; and
(b) complete the seminar provided for in Section 62A-15-401.
(2) (a) Liquor may not be purchased by the on-premise banquet licensee except from state stores or package agencies.
(b) Liquor purchased in accordance with Subsection (2)(a) may be transported by the on-premise banquet licensee from the place of purchase to the licensed premises.
(c) Payment for liquor shall be made in accordance with rules established by the commission.
(3) Alcoholic beverages may be sold or provided at a banquet subject to the restrictions set forth in this Subsection (3).
(a) An on-premise banquet licensee may sell or provide any primary spirituous liquor only in a quantity not to exceed one ounce per beverage dispensed through a calibrated metered dispensing system approved by the department in accordance with commission rules adopted under this title, except that:
(i) spirituous liquor need not be dispensed through a calibrated metered dispensing system if used as a secondary flavoring ingredient in a beverage subject to the following restrictions:
(A) the secondary ingredient may be dispensed only in conjunction with the purchase of a primary spirituous liquor;
(B) the secondary ingredient may not be the only spirituous liquor in the beverage;
(C) the on-premise banquet licensee shall designate a location where flavorings are stored on the floor plan provided to the department; and
(D) all flavoring containers shall be plainly and conspicuously labeled "flavorings";
(ii) spirituous liquor need not be dispensed through a calibrated metered dispensing system if used:
(A) as a flavoring on desserts; and
(B) in the preparation of flaming food dishes, drinks, and desserts;
(iii) each attendee may have no more than 2.75 ounces of spirituous liquor at a time before the attendee; and
(iv) each attendee may have no more than one spirituous liquor drink at a time before the attendee.
(b) (i) (A) Wine may be sold and served by the glass or an individual portion not to exceed five ounces per glass or individual portion.
(B) An individual portion may be served to an attendee in more than one glass as long as the total amount of wine does not exceed five ounces.
(C) An individual portion of wine is considered to be one alcoholic beverage under Subsection (5)(c).
(ii) Wine may be sold and served in containers not exceeding 1.5 liters at prices fixed by the commission.
(iii) A wine service may be performed and a service charge assessed by the on-premise banquet licensee as authorized by commission rule for wine purchased on the banquet premises.
(c) (i) Heavy beer may be served in original containers not exceeding one liter at prices fixed by the commission.
(ii) A service charge may be assessed by the on-premise banquet licensee as authorized by commission rule for heavy beer purchased on the banquet premises.
(d) (i) Except as provided in Subsection (3)(d)(ii), beer may be sold and served for on-premise consumption:
(A) in an open container; and
(B) on draft.
(ii) Beer sold pursuant to Subsection (3)(d)(i) shall be in a size of container that does not exceed two liters, except that beer may not be sold to an individual attendee in a container size that exceeds one liter.
(4) Alcoholic beverages may not be stored, served, or sold in any place other than as designated in the on-premise banquet licensee's application, except that additional locations in or on the premises of an on-premise banquet licensee may be approved in accordance with guidelines approved by the commission as provided in Subsection 32A-4-402(2).
(5) (a) An attendee may only make alcoholic beverage purchases from and be served by a person employed, designated, and trained by the on-premise banquet licensee to sell and serve alcoholic beverages.
(b) Notwithstanding Subsection (5)(a), an attendee who has purchased bottled wine from an employee of the on-premise banquet licensee may thereafter serve wine from the bottle to the attendee or others at the attendee's table.
(c) Each attendee may have no more than two alcoholic beverages of any kind at a time before the attendee.
(6) The alcoholic beverage storage area shall remain locked at all times other than those hours and days when alcoholic beverage sales are authorized by law.
(7) (a) Except as provided in Subsection (7)(b), alcoholic beverages may be offered for sale, sold, served, or otherwise furnished from 10 a.m. to 1 a.m. seven days a week:
(i) at a banquet; or
(ii) in connection with room service.
(b) Notwithstanding Subsection (7)(a), a sale or service of liquor may not occur at a banquet or in connection with room service until after the polls are closed on the day of:
(i) a regular general election;
(ii) a regular primary election; or
(iii) a statewide special election.
(8) Alcoholic beverages may not be sold, served, or otherwise furnished to any:
(a) minor;
(b) person actually, apparently, or obviously intoxicated;
(c) known habitual drunkard; or
(d) known interdicted person.
(9) (a) (i) Liquor may be sold only at prices fixed by the commission.
(ii) Liquor may not be sold at discount prices on any date or at any time.
(b) Alcoholic beverages may not be sold at less than the cost of the alcoholic beverage to the licensee.
(c) An alcoholic beverage may not be sold at a special or reduced price that encourages over consumption or intoxication.
(d) An alcoholic beverage may not be sold at a special or reduced price for only certain hours of the on-premise banquet licensee's business day such as a "happy hour."
(e) The sale or service of more than one alcoholic beverage for the price of a single alcoholic beverage is prohibited.
(f) An on-premise banquet licensee may not engage in a public promotion involving or offering free alcoholic beverages to the general public.
(10) Alcoholic beverages may not be purchased for an attendee by:
(a) the on-premise banquet licensee; or
(b) any employee or agent of the on-premise banquet licensee.
(11) An attendee of a banquet may not bring any alcoholic beverage into or onto, or remove any alcoholic beverage from the premises of a banquet.
(12) (a) Except as otherwise provided in this title, the sale and service of alcoholic beverages by an on-premise banquet licensee at a banquet shall be made only for consumption at the location of the banquet.
(b) The host of a banquet, an attendee, or any other person other than the on-premise banquet licensee or its employees, may not remove any alcoholic beverage from the premises of the banquet.
(13) An on-premise banquet licensee employee shall remain at the banquet at all times when alcoholic beverages are being sold, served, or consumed at the banquet.
(14) (a) An on-premise banquet licensee may not leave any unsold alcoholic beverages at the banquet following the conclusion of the banquet.
(b) At the conclusion of a banquet, the on-premise banquet licensee or its employees, shall:
(i) destroy any opened and unused alcoholic beverages that are not saleable, under conditions established by the department; and
(ii) return to the on-premise banquet licensee's approved locked storage area any:
(A) opened and unused alcoholic beverage that is saleable; and
(B) unopened containers of alcoholic beverages.
(15) Except as provided in Subsection (14), any open or sealed container of alcoholic beverages not sold or consumed at a banquet:
(a) shall be stored by the on-premise banquet licensee in the licensee's approved locked storage area; and
(b) may be used at more than one banquet.
(16) An on-premise banquet licensee may not employ a minor to sell, serve, dispense, or otherwise furnish alcoholic beverages in connection with the licensee's banquet and room service activities.
(17) An employee of an on-premise banquet licensee, while on duty, may not:
(a) consume an alcoholic beverage; or
(b) be intoxicated.
(18) An on-premise banquet licensee shall prominently display at each banquet at which alcoholic beverages are sold or served:
(a) a copy of the licensee's on-premise banquet license; and
(b) a sign in large letters stating: "Warning: Driving under the influence of alcohol or drugs is a serious crime that is prosecuted aggressively in Utah."
(19) An on-premise banquet licensee may not on the premises of the hotel, resort facility, sports center, or convention center:
(a) engage in or permit any form of gambling, as defined and proscribed in Title 76, Chapter 10, Part 11, Gambling;
(b) have any video gaming device, as defined and proscribed by Title 76, Chapter 10, Part 11, Gambling; or
(c) engage in or permit a contest, game, gaming scheme, or gaming device that requires the risking of something of value for a return or for an outcome when the return or outcome is based upon an element of chance, excluding the playing of an amusement device that confers only an immediate and unrecorded right of replay not exchangeable for value.
(20) (a) An on-premise banquet licensee shall maintain accounting and such other records and documents as the commission or department may require.
(b) An on-premise banquet licensee or person acting for the on-premise banquet licensee, who knowingly forges, falsifies, alters, cancels, destroys, conceals, or removes the entries in any of the books of account or other documents of the on-premise banquet licensee required to be made, maintained, or preserved by this title or the rules of the commission for the purpose of deceiving the commission or department, or any of their officials or employees, is subject to:
(i) the suspension or revocation of the on-premise banquet license; and
(ii) possible criminal prosecution under Chapter 12, Criminal Offenses.
(21) (a) For the purpose described in Subsection (21)(b), an on-premise banquet licensee shall provide the department with advance notice of a scheduled banquet in accordance with rules made by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The advance notice required by Subsection (21)(a) is required to provide any of the following the opportunity to conduct a random inspection of a banquet:
(i) an authorized representative of the commission or the department; or
(ii) a law enforcement officer.
(22) An on-premise banquet licensee shall maintain at least 50% of its total annual banquet gross receipts from the sale of food, not including:
(a) mix for alcoholic beverages; and
(b) charges in connection with the service of alcoholic beverages.
(23) A person may not transfer an on-premise banquet license from one business location to another without prior written approval of the commission.
(24) (a) An on-premise banquet licensee may not sell, transfer, assign, exchange, barter, give, or attempt in any way to dispose of the license to any other person, whether for monetary gain or not.
(b) An on-premise banquet license has no monetary value for the purpose of any type of disposition.
(25) (a) Room service of alcoholic beverages to a guest room of a hotel or resort facility shall be provided in person by an on-premise banquet licensee employee only to an adult guest in the guest room.
(b) Alcoholic beverages may not be left outside a guest room for retrieval by a guest.
(c) An on-premise banquet licensee may only provide alcoholic beverages for room service in sealed containers.
Section 428. Section 32A-5-103 is amended to read:
32A-5-103
. Qualifications.(1) (a) The commission may not grant a private club license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for a private club has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a private club license if after the day on which the private club license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of a private club license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for any offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a private club license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a private club license to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or a stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a private club license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owned at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a private club license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member of a limited liability company who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted a private club license.
(b) The commission may not grant a private club license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person or entity to whom a license has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 429. Section 32A-6-103 is amended to read:
32A-6-103
. Qualifications.(1) Special use permits may be granted only to the following persons or organizations:
(a) a religious wine use permit may be granted to a church or religious organization;
(b) an industrial or manufacturing use permit may be granted to a person or organization engaged in an industrial or manufacturing pursuit;
(c) a scientific or educational use permit may be granted to a person or organization engaged in a scientific or educational pursuit;
(d) a health care facility use permit may be granted to a hospital or health care facility; and
(e) a public service permit may be granted to an operator of an airline, railroad, or other public conveyance.
(2) (a) The commission may not issue a special use permit to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic products;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the special use permit is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (2)(a) applies if any of the following has been convicted of any offense described in Subsection (2)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation; or
(vii) a member who owns at least 20% of an applicant limited liability company.
(c) The proscription under Subsection (2)(a) applies if any person employed to act in a supervisory or managerial capacity for a special use permittee has been convicted of any offense described in Subsection (2)(a).
(3) The commission may immediately suspend or revoke a special use permit if after the day on which the special use permit is granted, a person described in Subsection (2)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (2)(a) prior to the permit being granted; or
(b) on or after the day on which the permit is granted:
(i) is convicted of an offense described in Subsection (2)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (3)(b)(ii)(A).
(4) The director may take emergency action by immediately suspending the operation of a special use permit according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (2)(a), (b), or (c):
(a) is arrested on a charge described in Subsection (2)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (4)(b)(i).
(5) (a) (i) The commission may not grant a special use permit to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a special use permit to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a special use permit if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a special use permit if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of a limited liability company that had any type of license, agency, or permit revoked within the last three years.
(6) (a) A minor may not be:
(i) granted a special use permit; or
(ii) employed by a permittee to handle alcoholic beverages.
(b) The commission may not grant a special use permit to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(7) If any person to whom a permit has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that permit, the commission may suspend or revoke that permit.
Section 430. Section 32A-7-103 is amended to read:
32A-7-103
. Qualifications.(1) To qualify for a single event permit, the applicant shall have been in existence as a bona fide organization for at least one year prior to the date of application.
(2) (a) The commission may not grant a single event permit to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the last five years before the day on which the permit is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (2)(a) applies if any of the following has been convicted of any offense described in Subsection (2)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation; or
(vii) a member who owns at least 20% of an applicant limited liability company.
(c) The proscription under Subsection (2)(a) applies if any person employed to act in a supervisory or managerial capacity for the single event permittee has been convicted of any offense described in Subsection (2)(a).
(3) The commission may immediately suspend or revoke a single event permit if after the day on which the permit is granted, a person described in Subsection (2)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (2)(a) prior to the permit being granted; or
(b) on or after the day on which the permit is granted:
(i) is convicted of an offense described in Subsection (2)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (3)(b)(ii)(A).
(4) The director may take emergency action by immediately revoking the permit according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if a person described in Subsection (2)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (2)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (4)(b)(i).
(5) (a) (i) The commission may not grant a single event permit to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a single event permit to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had a liquor license, agency, or permit revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a permit if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(6) (a) A minor may not be:
(i) granted a single event permit; or
(ii) employed by a single event permittee to handle alcoholic beverages.
(b) The commission may not grant a single event permit to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(7) If a person to whom a permit has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that permit, the commission may suspend or revoke that permit.
Section 431. Section 32A-8-103 is amended to read:
32A-8-103
. Qualifications.(1) (a) The commission may not grant an alcoholic beverage manufacturing license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the manufacturer has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke an alcoholic beverage manufacturing license if after the day on which the alcoholic beverage manufacturing license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of the licensee according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a manufacturing license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a manufacturing license to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a manufacturing license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a manufacturing license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be:
(i) granted an alcoholic beverage manufacturing license; or
(ii) employed by a manufacturing licensee to handle alcoholic beverages.
(b) The commission may not grant an alcoholic beverage manufacturing license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) The commission may not grant an alcoholic beverage manufacturing license to any person who has not met any applicable federal requirements for the operation of wineries, distilleries, or breweries.
(7) If any person to whom a license has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 432. Section 32A-8-503 is amended to read:
32A-8-503
. Qualifications.(1) (a) The commission may not grant a local industry representative license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, importing, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the local industry representative has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke the local industry representative license if after the day on which the local industry representative license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of the local industry representative license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a local industry representative license to any individual who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a local industry representative license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a local industry representative license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted an industry representative license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) The commission may not grant a local industry representative license to a minor.
(b) The commission may not grant a local industry representative license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) Except as otherwise provided, the commission may not grant a local industry representative license to:
(a) any holder of any retail license issued under this title that sells spirituous liquor, wine, or heavy beer;
(b) any employee or agent of any retail license issued under this title that sells spirituous liquor, wine, or heavy beer; or
(c) any individual, partnership, corporation, or limited liability company who holds any interest in any retail license issued under this title that sells spirituous liquor, wine, or heavy beer.
(7) If any individual, partnership, corporation, or limited liability company to whom a local industry representative license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 433. Section 32A-9-103 is amended to read:
32A-9-103
. Qualifications.(1) (a) The commission may not grant a warehousing license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the warehouse has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a warehousing license if after the day on which the warehousing license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of the warehousing license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a warehousing license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a warehousing license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a warehousing license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a warehousing license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) any manager or member who owned at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be:
(i) granted a warehousing license; or
(ii) employed by a warehouse to handle liquor.
(b) The commission may not grant a warehousing license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) A person, through any officer, director, representative, agent, or employee, or otherwise, either directly or indirectly, may not hold at the same time both a warehousing license and any other kind of license, agency, or permit issued under Title 32A, Chapter 3, 4, 5, 6, or 7, or Chapter 10, Part 2.
(7) If any person to whom a license has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 434. Section 32A-10-203 is amended to read:
32A-10-203
. Qualifications.(1) (a) The commission may not grant an on-premise beer retailer license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) of any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a manager or member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the on-premise beer retailer has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke an on-premise beer retailer license if after the day on which the on-premise beer retailer license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of an on-premise beer retailer license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant an on-premise beer retailer license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant an on-premise beer retailer license to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted an on-premise beer retailer license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member company who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted an on-premise beer retailer license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member of any limited liability company who owned at least 20% of a limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be granted an on-premise beer retailer license.
(b) The commission may not grant a on-premise beer retailer license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a license has been issued under this part no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 435. Section 32A-10-303 is amended to read:
32A-10-303
. Qualifications.(1) (a) The commission may not grant a temporary special event beer permit to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the permit is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of an offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the temporary special event beer permittee has been convicted of any offense as provided in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a temporary special event permit if after the day on which the permit is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the permit being granted; or
(b) on or after the day on which the permit is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately revoking the temporary special event permit according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a temporary special event beer permit to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a temporary special event permit to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of an applicant corporation, or member who owns at least 20% of an applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a temporary special event permit if any of the following had any type of license, agency, or permit issued under this title revoked while acting in their individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a temporary special event permit if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be:
(i) granted a temporary special event permit; or
(ii) employed by a temporary special event permittee to handle alcoholic beverages.
(b) The commission may not grant a temporary special event permit to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) If any person to whom a permit has been issued under this part no longer possesses the qualifications required by this title for obtaining that permit, the commission may suspend or revoke that permit.
Section 436. Section 32A-11-103 is amended to read:
32A-11-103
. Qualifications.(1) (a) The commission may not issue a beer wholesaling license to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic products;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the license is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for the wholesaler has been convicted of any offense as provided in Subsection (1)(a).
(2) The commission may immediately suspend or revoke a beer wholesaling license if after the day on which the beer wholesaling license is granted, a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the license being granted; or
(b) on or after the day on which the license is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of a beer wholesaling license according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a beer wholesaling license to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a beer wholesaling license to an applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a beer wholesaling license if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) a partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a beer wholesaling license if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) A minor may not be:
(i) granted a beer wholesaling license; or
(ii) employed by a licensee to handle beer.
(b) The commission may not grant a beer wholesaling license to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(6) (a) A beer wholesaler may not be issued, directly or indirectly, nor hold, through any wholly or partially owned subsidiaries or otherwise, a brewery license or a retail beer license simultaneously with a wholesaling license.
(b) A retail beer licensee may not be issued, directly or indirectly, nor hold, through any wholly or partially owned subsidiaries or otherwise, a wholesaling license.
(7) The commission may not grant a beer wholesaling license to any person who has not met any applicable federal requirements for beer wholesaling.
(8) If any person to whom a license has been issued under this chapter no longer possesses the qualifications required by this title for obtaining that license, the commission may suspend or revoke that license.
Section 437. Section 32A-15a-103 is amended to read:
32A-15a-103
. Rulemaking.In accordance with this chapter and [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules that govern the filing under this chapter of:
(1) a formal objection to the renewal of a retail license; and
(2) a request for hearing filed by a retail licensee.
Section 438. Section 32A-15a-201 is amended to read:
32A-15a-201
. Commission to prohibit nuisance activities by licensees -- License not renewed.(1) In accordance with Section 32A-1-103, the commission shall require a retail licensee as a condition of being licensed under this title to operate in a manner so as not to endanger the public health, peace, safety, welfare, or morals of the community.
(2) (a) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Sections 32A-15a-202 and 32A-15a-203, the commission may deny the renewal of any retail license issued under this title if:
(i) a formal objection to the renewal is filed; and
(ii) the commission determines that the retail licensee has engaged in nuisance activities to such an extent that the nuisance activities have adversely impacted the public health, peace, safety, welfare, or morals of the neighboring community of the licensed premises.
(b) In making a determination under this Subsection (2), the commission may consider:
(i) the types of nuisance activities in which a licensee has engaged;
(ii) the frequency or pattern of the nuisance activities; and
(iii) the retail licensee's notice of and failure to abate or correct the nuisance activities.
Section 439. Section 34-20-10 is amended to read:
34-20-10
. Unfair labor practices -- Powers of board to prevent -- Procedure.(1) (a) The board may prevent any person from engaging in any unfair labor practice, as listed in Section 34-20-8, affecting intrastate commerce or the orderly operation of industry.
(b) This authority is exclusive and is not affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.
(2) The board shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
(3) When it is charged that any person has engaged in or is engaged in any unfair labor practice, the board, or any agent or agency designated by the board, may issue and serve a notice of agency action on that person.
(4) (a) If, upon all the testimony taken, the board finds that any person named in the complaint has engaged in or is engaging in an unfair labor practice, the board shall state its findings of fact and shall issue and serve on the person an order to cease and desist from the unfair labor practice and to take other affirmative action designated by the commission, including reinstatement of employees with or without back pay, to effectuate the policies of this chapter.
(b) The order may require the person to make periodic reports showing the extent to which it has complied with the order.
(c) If, upon all the testimony taken, the board determines that no person named in the complaint has engaged in or is engaging in any unfair labor practice, the board shall state its findings of fact and shall issue an order dismissing the complaint.
(5) (a) The board may petition the district court to enforce the order and for appropriate temporary relief or for a restraining order.
(b) The board shall certify and file in the court:
(i) a transcript of the entire record in the proceeding;
(ii) the pleadings and testimony upon which the order was entered; and
(iii) the findings and order of the board.
(c) When the petition is filed, the board shall serve notice on all parties to the action.
(d) Upon filing of the petition, the court has jurisdiction of the proceeding and of the question to be determined.
(e) The court may grant temporary relief or a restraining order, and, based upon the pleadings, testimony, and proceedings set forth in the transcript, order that the board's order be enforced, modified, or set aside in whole or in part.
(f) The court may not consider any objection that was not presented before the board, its member, agent, or agency, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.
(g) The board's findings of fact, if supported by evidence, are conclusive.
(h) (i) If either party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the board, its member, agent, or agency, the court may order additional evidence to be taken before the board, its member, agent, or agency, and to be made part of the transcript.
(ii) The board may modify its findings as to the facts, or make new findings, because of the additional evidence taken and filed.
(iii) The board shall file the modified or new findings, which, if supported by evidence, are conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order.
Section 440. Section 34-23-104 is amended to read:
34-23-104
. Duty of commission to establish hours and conditions -- Promulgation of rules.(1) The commission shall ascertain and establish the hours and the conditions of labor and employment for any occupation in which minors are employed.
(2) The commission may promulgate rules consistent with this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 441. Section 34-23-401 is amended to read:
34-23-401
. Investigation by division -- Administrative penalty.(1) The director of the division or the director's designee shall have authority to enter and inspect any place or establishment covered by this chapter and to have access to such records as may aid in the enforcement of this chapter.
(2) The division may investigate any complaint under this chapter and may commence an administrative proceeding with a penalty of up to $500 per violation. Administrative proceedings conducted under this section shall be consistent with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act.
Section 442. Section 34-28-19 is amended to read:
34-28-19
. Retaliation prohibited -- Administrative process -- Enforcement -- Rulemaking.(1) (a) An employer violates this chapter if the employer takes an action described in Subsection (1)(b) against an employee because:
(i) the employee files a complaint or testifies in a proceeding relative to the enforcement of this chapter;
(ii) the employee is going to file a complaint or testify in a proceeding relative to the enforcement of this chapter; or
(iii) the employer believes that the employee may file a complaint or testify in any proceeding relative to the enforcement of this chapter.
(b) Subsection (1)(a) applies to the following actions of an employer:
(i) the discharge of an employee;
(ii) the demotion of an employee; or
(iii) any other form of retaliation against an employee in the terms, privileges, or conditions of employment.
(2) (a) An employee claiming to be aggrieved by an action of the employer in violation of Subsection (1) may file with the division a request for agency action.
(b) On receipt of a request for agency action under Subsection (2)(a), the division:
(i) shall conduct an adjudicative proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(ii) may attempt to reach a settlement between the parties through a settlement conference.
(3) If the division determines that a violation has occurred, the division may require the employer to:
(a) cease and desist any retaliatory action;
(b) compensate the employee, which compensation may not exceed reimbursement for, and payment of, lost wages and benefits to the employee; or
(c) do both (3)(a) and (b).
(4) The division may enforce this section in accordance with Subsections 34-28-9(3) and (4).
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall adopt rules, as required, to implement this section.
Section 443. Section 34-40-104 is amended to read:
34-40-104
. Exemptions.(1) The minimum wage established in this chapter does not apply to:
(a) any employee who is entitled to a minimum wage as provided in 29 U.S.C. Sec. 201 et seq., the Fair Labor Standards Act of 1938, as amended;
(b) outside sales persons;
(c) an employee who is a member of the employer's immediate family;
(d) companionship service for persons who, because of age or infirmity, are unable to care for themselves;
(e) casual and domestic employees as defined by the commission;
(f) seasonal employees of nonprofit camping programs, religious or recreation programs, and nonprofit educational and charitable organizations registered under Title 13, Chapter 22, Charitable Solicitations Act;
(g) an individual employed by the United States of America;
(h) any prisoner employed through the penal system;
(i) any employee employed in agriculture if the employee:
(i) is principally engaged in the range production of livestock;
(ii) is employed as a harvest laborer and is paid on a piece rate basis in an operation that has been and is generally recognized by custom as having been paid on a piece rate basis in the region of employment;
(iii) was employed in agriculture less than 13 weeks during the preceding calendar year; or
(iv) is a retired or semiretired person performing part-time or incidental work as a condition of the employee's residence on a farm or ranch;
(j) registered apprentices or students employed by the educational institution in which they are enrolled; or
(k) any seasonal hourly employee employed by a seasonal amusement establishment with permanent structures and facilities if the other direct monetary compensation from tips, incentives, commissions, end-of-season bonus, or other forms of pay is sufficient to cause the average hourly rate of total compensation for the season of seasonal hourly employees who continue to work to the end of the operating season to equal the applicable minimum wage if the seasonal amusement establishment:
(i) does not operate for more than seven months in any calendar year; or
(ii) during the preceding calendar year its average receipts for any six months of that year were not more than 33-1/3% of its average receipts for the other six months of that year.
(2) (a) Persons with a disability whose earnings or productive capacities are impaired by age, physical or mental deficiencies, or injury may be employed at wages that are lower than the minimum wage, provided the wage is related to the employee's productivity.
(b) The commission may establish and regulate the wages paid or wage scales for persons with a disability.
(3) The commission may establish or may set a lesser minimum wage for learners not to exceed the first 160 hours of employment.
(4) (a) An employer of a tipped employee shall pay the tipped employee at least the minimum wage established by this chapter.
(b) In computing a tipped employee's wage under this Subsection (4), an employer of a tipped employee:
(i) shall pay the tipped employee at least the cash wage obligation as an hourly wage; and
(ii) may compute the remainder of the tipped employee's wage using the tips or gratuities the tipped employee actually receives.
(c) An employee shall retain all tips and gratuities except to the extent that the employee participates in a bona fide tip pooling or sharing arrangement with other tipped employees.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall by rule establish the cash wage obligation in conjunction with its review of the minimum wage under Section 34-40-103.
Section 444. Section 34-40-105 is amended to read:
34-40-105
. Grant of rulemaking authority.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may issue rules that are consistent with this chapter.
Section 445. Section 34-40-202 is amended to read:
34-40-202
. Enforcement.The division shall enforce this chapter and investigate complaints under this chapter. The division may commence administrative proceedings in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, and may impose a penalty of up to $500 per violation of this chapter.
Section 446. Section 34-41-103 is amended to read:
34-41-103
. Policy requirements.(1) (a) Before testing or retesting for the presence of drugs, a local governmental entity or state institution of higher education shall:
(i) adopt a written policy or ordinance;
(ii) distribute it to employees and volunteers; and
(iii) make it available for review by prospective employees and prospective volunteers.
(b) The local governmental entity or state institution of higher education may only test or retest for the presence of drugs by following the procedures and requirements of that ordinance or policy.
(2) The collection and testing of samples shall be conducted in accordance with Section 34-41-104 and not necessarily limited to circumstances where there are indications of individual, job-related impairment of an employee or volunteer.
(3) The use and disposition of all drug test results are subject to the limitations of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.
(4) An employee, prospective employee, volunteer, or prospective volunteer shall submit a split urine sample for testing or retesting.
(5) A split urine sample shall consist of at least 45 ml of urine. The urine shall be divided into two specimen bottles, with at least 30 ml of urine in one bottle and at least 15 ml of urine in the other. If the test results of the 30 ml urine sample indicate the presence of drugs, the donor of the test shall have 72 hours from the time he is so notified to request, at his option that the 15 ml urine sample be tested for the indicated drugs, the expense of which shall be divided equally between the donor and employer. In addition to the test results of the 30 ml urine sample, the test results of the 15 ml urine sample shall be considered at any subsequent disciplinary hearing if the requirements of this section and Section 34-41-104 have been complied with in the collection, handling, and testing of these samples.
Section 447. Section 34A-1-104 is amended to read:
34A-1-104
. Commission authority.Within all other authority or responsibility granted to it by law, the commission may:
(1) adopt rules when authorized by this title, or Title 34, Labor in General, in accordance with the procedures of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(2) conduct adjudicative proceedings in accordance with the procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(3) license agencies in accordance with this title or Title 34, Labor in General;
(4) employ and determine the compensation of clerical, legal, technical, investigative, and other employees necessary to carry out its policymaking, regulatory, and enforcement powers, rights, duties, and responsibilities under this title or Title 34, Labor in General;
(5) administer and enforce all laws for the protection of the life, health, and safety, of employees;
(6) ascertain and fix reasonable standards, and prescribe, modify, and enforce reasonable orders, for the adoption of safety devices, safeguards, and other means or methods of protection, to be as nearly uniform as possible, as necessary to carry out all laws and lawful orders relative to the protection of the life, health, and safety, of employees in employment and places of employment;
(7) ascertain, fix, and order reasonable standards for the construction, repair, and maintenance of places of employment as shall make them safe;
(8) investigate, ascertain, and determine reasonable classifications of persons, employments, and places of employment as necessary to carry out the purposes of this title or Title 34, Labor in General;
(9) promote the voluntary arbitration, mediation, and conciliation of disputes between employers and employees;
(10) ascertain and adopt reasonable standards and rules, prescribe and enforce reasonable orders, and take other actions appropriate for the protection of life, health, and safety of all persons with respect to all prospects, tunnels, pits, banks, open cut workings, quarries, strip mine operations, ore mills, and surface operations or any other mining operation, whether or not the relationship of employer and employee exists, but the commission may not assume jurisdiction or authority over adopted standards and regulations or perform any mining inspection or enforcement of mining rules and regulations so long as Utah's mining operations are governed by federal regulations;
(11) develop processes to ensure that the commission responds to the full range of employee and employer clients; and
(12) carry out the responsibilities assigned to it by statute.
Section 448. Section 34A-1-106 is amended to read:
34A-1-106
. Fees.(1) Unless otherwise provided by statute, the commission may adopt a schedule of fees assessed for services provided by the commission by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(2) The commission shall submit each fee established under this section to the Legislature for its approval as part of the commission's annual appropriations request.
Section 449. Section 34A-1-302 is amended to read:
34A-1-302
. Presiding officers for adjudicative proceedings -- Subpoenas -- Independent judgment -- Consolidation -- Record -- Notice of order.(1) (a) The commissioner shall authorize the Division of Adjudication to call, assign a presiding officer, and conduct hearings and adjudicative proceedings when an application for a proceeding is filed with the Division of Adjudication under this title.
(b) The director of the Division of Adjudication or the director's designee may issue subpoenas. Failure to respond to a properly issued subpoena may result in a contempt citation and offenders may be punished as provided in Section 78-32-15.
(c) Witnesses subpoenaed under this section are allowed fees as provided by law for witnesses in the district court of the state. The witness fees shall be paid by the state unless the witness is subpoenaed at the instance of a party other than the commission.
(d) A presiding officer assigned under this section may not participate in any case in which the presiding officer is an interested party. Each decision of a presiding officer shall represent the presiding officer's independent judgment.
(2) If, in the judgment of the presiding officer having jurisdiction of the proceeding the consolidation would not be prejudicial to any party, when the same or substantially similar evidence is relevant and material to the matters in issue in more than one proceeding, the presiding officer may:
(a) fix the same time and place for considering each matter;
(b) jointly conduct hearings;
(c) make a single record of the proceedings; and
(d) consider evidence introduced with respect to one proceeding as introduced in the others.
(3) (a) The commission shall keep a full and complete record of all adjudicative proceedings in connection with a disputed matter.
(b) All testimony at any hearing shall be recorded but need not be transcribed. If a party requests transcription, the transcription shall be provided at the party's expense.
(c) All records on appeals shall be maintained by the Division of Adjudication. The records shall include an appeal docket showing the receipt and disposition of the appeals.
(4) A party in interest shall be given notice of the entry of a presiding officer's order or any order or award of the commission. The mailing of the copy of the order or award to the last-known address in the files of the commission of a party in interest and to the attorneys or agents of record in the case, if any, is considered to be notice of the order.
(5) In any formal adjudicative proceeding, the presiding officer may take any action permitted under Section [63-46b-8] 63G-4-206.
Section 450. Section 34A-1-303 is amended to read:
34A-1-303
. Review of administrative decision.(1) A decision entered by an administrative law judge under this title is the final order of the commission unless a further appeal is initiated:
(a) under this title; and
(b) in accordance with the rules of the commission governing the review.
(2) (a) Unless otherwise provided, a person who is entitled to appeal a decision of an administrative law judge under this title may appeal the decision by filing a motion for review with the Division of Adjudication.
(b) (i) Unless a party in interest to the appeal requests in accordance with Subsection (3) that the appeal be heard by the Appeals Board, the commissioner shall hear the review in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(ii) A decision of the commissioner is a final order of the commission unless set aside by the court of appeals.
(c) (i) If in accordance with Subsection (3) a party in interest to the appeal requests that the appeal be heard by the Appeals Board, the Appeals Board shall hear the review in accordance with:
(A) Section 34A-1-205; and
(B) [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(ii) A decision of the Appeals Board is a final order of the commission unless set aside by the court of appeals.
(3) A party in interest may request that an appeal be heard by the Appeals Board by filing the request with the Division of Adjudication:
(a) as part of the motion for review; or
(b) if requested by a party in interest who did not file a motion for review, within 20 days of the date the motion for review is filed with the Division of Adjudication.
(4) (a) On appeal, the commissioner or the Appeals Board may:
(i) affirm the decision of an administrative law judge;
(ii) modify the decision of an administrative law judge;
(iii) return the case to an administrative law judge for further action as directed; or
(iv) reverse the findings, conclusions, and decision of an administrative law judge.
(b) The commissioner or Appeals Board may not conduct a trial de novo of the case.
(c) The commissioner or Appeals Board may base its decision on:
(i) the evidence previously submitted in the case; or
(ii) on written argument or written supplemental evidence requested by the commissioner or Appeals Board.
(d) The commissioner or Appeals Board may permit the parties to:
(i) file briefs or other papers; or
(ii) conduct oral argument.
(e) The commissioner or Appeals Board shall promptly notify the parties to any proceedings before the commissioner or Appeals Board of its decision, including its findings and conclusions.
(5) (a) Each decision of a member of the Appeals Board shall represent the member's independent judgment.
(b) A member of the Appeals Board may not participate in any case in which the member is an interested party.
(c) If a member of the Appeals Board may not participate in a case because the member is an interested party, the two members of the Appeals Board that may hear the case shall assign an individual to participate as a member of the board in that case if the individual:
(i) is not an interested party in the case;
(ii) was not previously assigned to:
(A) preside over any proceeding related to the case; or
(B) take any administrative action related to the case; and
(iii) is representative of the following group that was represented by the member that may not hear the case under Subsection (5)(b):
(A) employers;
(B) employees; or
(C) the public.
(d) The two members of the Appeals Board may appoint an individual to participate as a member of the Appeals Board in a case if:
(i) there is a vacancy on the board at the time the Appeals Board hears the review of the case;
(ii) the individual appointed meets the conditions described in Subsections (5)(c)(i) and (ii); and
(iii) the individual appointed is representative of the following group that was represented by the member for which there is a vacancy:
(A) employers;
(B) employees; or
(C) the public.
(6) If an order is appealed to the court of appeals after the party appealing the order has exhausted all administrative appeals, the court of appeals has jurisdiction to:
(a) review, reverse, remand, or annul any order of the commissioner or Appeals Board; or
(b) suspend or delay the operation or execution of the order of the commissioner or Appeals Board being appealed.
Section 451. Section 34A-1-304 is amended to read:
34A-1-304
. Rulemaking -- Electronic or similar methods of proceedings.(1) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing adjudicative procedures including the forms of notices and the manner of serving notice in all claims.
(b) Except as provided in this title and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the rules made under this section are not required to conform to common law or statutory rules of evidence or other technical rules of procedure.
(2) The rules made under this section shall include procedures to dispose of cases informally, or to expedite claims adjudication, narrow issues, and simplify the methods of proof at hearings.
(3) The commission may by rule permit hearings or other adjudicative proceedings to be conducted, recorded, or published by means of electronic devices or other similar methods.
Section 452. Section 34A-1-307 is amended to read:
34A-1-307
. Action permitted in adjudicative proceedings.For the purposes mentioned in this title, the commission may take any action permitted:
(1) if a formal adjudicative proceeding, under Section [63-46b-7] 63G-4-205 or [63-46b-8] 63G-4-206; or
(2) if an informal adjudicative proceeding, under Section [63-46b-5] 63G-4-203.
Section 453. Section 34A-1-309 is amended to read:
34A-1-309
. Attorneys' fees.(1) In all cases coming before the commission in which attorneys have been employed, the commission is vested with full power to regulate and fix the fees of the attorneys.
(2) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, an attorney may file an application for hearing with the Division of Adjudication to appeal a decision or final order to the extent it concerns the award of attorney fees.
(3) (a) The commission may award reasonable attorneys' fees on a contingency basis when disability or death benefits or interest on disability or death benefits are generated.
(b) Attorney fees awarded under Subsection (3)(a) shall be paid by the employer or its insurance carrier out of the award of disability or death benefits, or interest on disability or death benefits.
(4) (a) If the commission orders that only medical benefits be paid, the commission may award reasonable attorneys' fee on a contingency basis for medical benefits ordered paid if:
(i) the commission's informal dispute resolution mechanisms were fully used by the parties prior to adjudication; and
(ii) at no time were disability or death benefits or interest on disability or death benefits at issue in the adjudication of the medical benefit claim.
(b) Attorneys' fees awarded under Subsection (3)(a) shall be paid by the employer or its insurance carrier in addition to the payment of medical benefits ordered.
Section 454. Section 34A-1-402 is amended to read:
34A-1-402
. Publication of orders, rules, and rates.(1) (a) The commission shall make available in proper form for distribution to the public, its orders and rules; and
(b) furnish the information made available under Subsection (1) to any person upon request.
(2) The commission may in accordance with Section [63-2-203] 63G-2-203 charge a fee for furnishing materials under this section.
Section 455. Section 34A-2-111 is amended to read:
34A-2-111
. Managed health care programs -- Other safety programs.(1) As used in this section:
(a) (i) "Health care provider" means a person who furnishes treatment or care to persons who have suffered bodily injury.
(ii) "Health care provider" includes:
(A) a hospital;
(B) a clinic;
(C) an emergency care center;
(D) a physician;
(E) a nurse;
(F) a nurse practitioner;
(G) a physician's assistant;
(H) a paramedic; or
(I) an emergency medical technician.
(b) "Physician" means any health care provider licensed under:
(i) Title 58, Chapter 5a, Podiatric Physician Licensing Act;
(ii) Title 58, Chapter 24a, Physical Therapist Practice Act;
(iii) Title 58, Chapter 67, Utah Medical Practice Act;
(iv) Title 58, Chapter 68, Utah Osteopathic Medical Practice Act;
(v) Title 58, Chapter 69, Dentist and Dental Hygienist Practice Act;
(vi) Title 58, Chapter 70a, Physician Assistant Act;
(vii) Title 58, Chapter 71, Naturopathic Physician Practice Act;
(viii) Title 58, Chapter 72, Acupuncture Licensing Act; and
(ix) Title 58, Chapter 73, Chiropractic Physician Practice Act.
(c) "Preferred health care facility" means a facility:
(i) that is a health care facility as defined in Section 26-21-2; and
(ii) designated under a managed health care program.
(d) "Preferred provider physician" means a physician designated under a managed health care program.
(e) "Self-insured employer" is as defined in Section 34A-2-201.5.
(2) (a) A self-insured employer and insurance carrier may adopt a managed health care program to provide employees the benefits of this chapter or Chapter 3, Utah Occupational Disease Act, beginning January 1, 1993. The plan shall comply with this Subsection (2).
(b) (i) A preferred provider program may be developed if the preferred provider program allows a selection by the employee of more than one physician in the health care specialty required for treating the specific problem of an industrial patient.
(ii) (A) Subject to the requirements of this section, if a preferred provider program is developed by an insurance carrier or self-insured employer, an employee is required to use:
(I) preferred provider physicians; and
(II) preferred health care facilities.
(B) If a preferred provider program is not developed, an employee may have free choice of health care providers.
(iii) The failure to do the following may, if the employee has been notified of the preferred provider program, result in the employee being obligated for any charges in excess of the preferred provider allowances:
(A) use a preferred health care facility; or
(B) initially receive treatment from a preferred provider physician.
(iv) Notwithstanding the requirements of Subsections (2)(b)(i) through (iii), a self-insured employer or other employer may:
(A) (I) (Aa) have its own health care facility on or near its worksite or premises; and
(Bb) continue to contract with other health care providers; or
(II) operate a health care facility; and
(B) require employees to first seek treatment at the provided health care or contracted facility.
(v) An employee subject to a preferred provider program or employed by an employer having its own health care facility may procure the services of any qualified health care provider:
(A) for emergency treatment, if a physician employed in the preferred provider program or at the health care facility is not available for any reason;
(B) for conditions the employee in good faith believes are nonindustrial; or
(C) when an employee living in a rural area would be unduly burdened by traveling to:
(I) a preferred provider physician; or
(II) preferred health care facility.
(c) (i) (A) An employer, insurance carrier, or self-insured employer may enter into contracts with the following for the purposes listed in Subsection (2)(c)(i)(B):
(I) health care providers;
(II) medical review organizations; or
(III) vendors of medical goods, services, and supplies including medicines.
(B) A contract described in Subsection (1)(c)(i)(A) may be made for the following purposes:
(I) insurance carriers or self-insured employers may form groups in contracting for managed health care services with health care providers;
(II) peer review;
(III) methods of utilization review;
(IV) use of case management;
(V) bill audit;
(VI) discounted purchasing; and
(VII) the establishment of a reasonable health care treatment protocol program including the implementation of medical treatment and quality care guidelines that are:
(Aa) scientifically based;
(Bb) peer reviewed; and
(Cc) consistent with standards for health care treatment protocol programs that the commission shall establish by rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, including the authority of the commission to approve a health care treatment protocol program before it is used or disapprove a health care treatment protocol program that does not comply with this Subsection (2)(c)(i)(B)(VII).
(ii) An insurance carrier may make any or all of the factors in Subsection (2)(c)(i) a condition of insuring an entity in its insurance contract.
(3) (a) In addition to a managed health care program, an insurance carrier may require an employer to establish a work place safety program if the employer:
(i) has an experience modification factor of 1.00 or higher, as determined by the National Council on Compensation Insurance; or
(ii) is determined by the insurance carrier to have a three-year loss ratio of 100% or higher.
(b) A workplace safety program may include:
(i) a written workplace accident and injury reduction program that:
(A) promotes safe and healthful working conditions; and
(B) is based on clearly stated goals and objectives for meeting those goals; and
(ii) a documented review of the workplace accident and injury reduction program each calendar year delineating how procedures set forth in the program are met.
(c) A written workplace accident and injury reduction program permitted under Subsection (3)(b)(i) should describe:
(i) how managers, supervisors, and employees are responsible for implementing the program;
(ii) how continued participation of management will be established, measured, and maintained;
(iii) the methods used to identify, analyze, and control new or existing hazards, conditions, and operations;
(iv) how the program will be communicated to all employees so that the employees are informed of work-related hazards and controls;
(v) how workplace accidents will be investigated and corrective action implemented; and
(vi) how safe work practices and rules will be enforced.
(d) For the purposes of a workplace accident and injury reduction program of an eligible employer described in Subsection 34A-2-103(7)(f), the workplace accident and injury reduction program shall:
(i) include the provisions described in Subsections (3)(b) and (c), except that the employer shall conduct a documented review of the workplace accident and injury reduction program at least semiannually delineating how procedures set forth in the workplace accident and injury reduction program are met; and
(ii) require a written agreement between the employer and all contractors and subcontractors on a project that states that:
(A) the employer has the right to control the manner or method by which the work is executed;
(B) if a contractor, subcontractor, or any employee of a contractor or subcontractor violates the workplace accident and injury reduction program, the employer maintains the right to:
(I) terminate the contract with the contractor or subcontractor;
(II) remove the contractor or subcontractor from the work site; or
(III) require that the contractor or subcontractor not permit an employee that violates the workplace accident and injury reduction program to work on the project for which the employer is procuring work; and
(C) the contractor or subcontractor shall provide safe and appropriate equipment subject to the right of the employer to:
(I) inspect on a regular basis the equipment of a contractor or subcontractor; and
(II) require that the contractor or subcontractor repair, replace, or remove equipment the employer determines not to be safe or appropriate.
(4) The premiums charged to any employer who fails or refuses to establish a workplace safety program pursuant to Subsection (3)(b)(i) or (ii) may be increased by 5% over any existing current rates and premium modifications charged that employer.
Section 456. Section 34A-2-203 is amended to read:
34A-2-203
. Payment of premiums for workers' compensation.(1) Until June 30, 2007, a department, commission, board, or other agency of the state shall pay the insurance premium on its employees direct to the Workers' Compensation Fund.
(2) Beginning July 1, 2007, the state shall secure the payment of workers' compensation benefits for its employees:
(a) by:
(i) insuring, and keeping insured, the payment of this compensation with the Workers' Compensation Fund;
(ii) insuring, and keeping insured, the payment of this compensation with any stock corporation or mutual association authorized to transact the business of workers' compensation insurance in this state; or
(iii) paying direct compensation as a self-insured employer in the amount, in the manner, and when due as provided for in this chapter or Chapter 3, Utah Occupational Disease Act;
(b) in accordance with Title 63A, Chapter 4, Risk Management; and
(c) subject to Subsection (3).
(3) (a) If the state determines to secure the payment of workers' compensation benefits for its employees by paying direct compensation as a self-insured employer in the amount, in the manner, and due as provided for in this chapter or Chapter 3, Utah Occupational Disease Act, the state is:
(i) exempt from Section 34A-2-202.5 and Subsection 34A-2-704(14); and
(ii) required to pay a premium assessment as provided in Section 34A-2-202.
(b) If the state chooses to pay workers' compensation benefits for its employees through insuring under Subsection (2)(a)(i) or (ii), the state shall obtain that insurance in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
Section 457. Section 34A-2-205 is amended to read:
34A-2-205
. Notification of workers' compensation insurance coverage to division -- Cancellation requirements -- Penalty for violation.(1) (a) Every insurance carrier writing workers' compensation insurance coverage in this state or for this state, regardless of the state in which the policy is written, shall file notification of that coverage with the division or its designee within 30 days after the inception date of the policy in the form prescribed by the division.
(b) A policy described in Subsection (1)(a) is in effect from inception until canceled by filing with the division or its designee a notification of cancellation in the form prescribed by the division within ten days after the cancellation of a policy.
(c) Failure to notify the division or its designee under Subsection (1)(b) will result in the continued liability of the carrier until the date that notice of cancellation is received by the division or its designee.
(d) Filings shall be made within 30 days of:
(i) the reinstatement of a policy;
(ii) the changing or addition of a name or address of the insured; or
(iii) the merger of an insured with another entity.
(e) All filings under this section shall include:
(i) the name of the insured;
(ii) the principal business address;
(iii) any and all assumed name designations;
(iv) the address of all locations within this state where business is conducted; and
(v) all federal employer identification numbers or federal tax identification numbers.
(2) Noncompliance with this section is grounds for revocation of an insurance carrier's certificate of authority in addition to the grounds specified in Title 31A, Insurance Code.
(3) The division may assess an insurer up to $150, payable to the Uninsured Employers' Fund, if the insurer fails to comply with this section.
(4) (a) The notification of workers' compensation insurance coverage required to be filed under Subsection (1) is a protected record under Section [63-2-304] 63G-2-305.
(b) The commission or any of its divisions may not disclose the information described in Subsection (4)(a) except as provided in:
(i) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, for a protected record; or
(ii) Subsection (4)(c), notwithstanding whether [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, permits disclosure.
(c) The commission may disclose the information described in Subsection (4)(a) if:
(i) the information is disclosed on an individual case basis related to a single employer;
(ii) the information facilitates the:
(A) coverage of subcontractors by identifying the insurance carrier providing workers' compensation coverage for an employer;
(B) filing of a claim by an employee; or
(C) payment of services rendered on an employee's claim by a medical practitioner; and
(iii) promotes the purposes of this chapter or Chapter 3, Utah Occupational Disease Act.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules concerning when information may be disclosed under Subsection (4)(c).
Section 458. Section 34A-2-211 is amended to read:
34A-2-211
. Notice of noncompliance to employer -- Enforcement power of division -- Penalty.(1) (a) In addition to the remedies specified in Section 34A-2-210, if the division has reason to believe that an employer is conducting business without securing the payment of benefits in one of the three ways provided in Section 34A-2-201, the division may give that employer written notice of the noncompliance by certified mail to the last-known address of the employer.
(b) If the employer does not remedy the default within 15 days after delivery of the notice, the division may issue an order requiring the employer to appear before the division and show cause why the employer should not be ordered to comply with Section 34A-2-201.
(c) If it is found that the employer has failed to provide for the payment of benefits in one of the three ways provided in Section 34A-2-201, the division may require any employer to comply with Section 34A-2-201.
(2) (a) Notwithstanding Subsection (1), the division may impose a penalty against the employer under this Subsection (2):
(i) subject to the notice and other requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(ii) if the division believes that an employer of one or more employees is conducting business without securing the payment of benefits in one of the three ways provided in Section 34A-2-201.
(b) The penalty imposed under Subsection (2)(a) shall be the greater of:
(i) $1,000; or
(ii) three times the amount of the premium the employer would have paid for workers' compensation insurance based on the rate filing of the Workers' Compensation Fund, during the period of noncompliance.
(c) For purposes of Subsection (2)(b)(ii), the premium is calculated by applying rates and rate multipliers to the payroll basis under Subsection (2)(d), using the highest rated employee class code applicable to the employer's operations.
(d) The payroll basis for the purpose of calculating the premium penalty shall be 150% of the state's average weekly wage multiplied by the highest number of workers employed by the employer during the period of the employer's noncompliance multiplied by the number of weeks of the employer's noncompliance up to a maximum of 156 weeks.
(3) The penalty imposed under Subsection (2) shall be deposited in the Uninsured Employers' Fund created by Section 34A-2-704 and used for the purposes of that fund.
(4) (a) An employer who disputes the determination, imposition, or amount of a penalty imposed under Subsection (2) shall request a hearing before an administrative law judge within 30 days of the date of issuance of the administrative action imposing the penalty or the administrative action becomes a final order of the commission.
(b) The employer's request for a hearing under Subsection (4)(a) shall specify the facts and grounds that are the basis of the employer's objection to the determination, imposition, or amount of the penalty.
(c) An administrative law judge's decision under this Subsection (4) may be reviewed pursuant to Part 8, Adjudication.
(5) (a) After a penalty has been issued and becomes a final order of the commission the division on behalf of the commission may file an abstract for any uncollected penalty in the district court.
(b) The abstract filed under Subsection (5)(a) shall state:
(i) the amount of the uncollected penalty;
(ii) reasonable attorneys' fees;
(iii) costs of collection; and
(iv) court costs.
(c) The filed abstract shall have the effect of a judgment of that court.
(6) Any administrative action issued by the division under this section shall:
(a) be in writing;
(b) be sent by certified mail to the last-known address of the employer;
(c) state the findings and administrative action of the division; and
(d) specify its effective date, which may be immediate or may be at a later date.
(7) The final order of the commission under this section, upon application by the division on behalf of the commission made on or after the effective date of the order to a court of general jurisdiction in any county in this state, may be enforced by an order to comply entered ex parte and without notice by the court.
Section 459. Section 34A-2-407 is amended to read:
34A-2-407
. Reporting of industrial injuries -- Regulation of health care providers -- Funeral expenses.(1) As used in this section, "physician" is as defined in Section 34A-2-111.
(2) (a) Any employee sustaining an injury arising out of and in the course of employment shall provide notification to the employee's employer promptly of the injury.
(b) If the employee is unable to provide the notification required by Subsection (2)(a), the following may provide notification of the injury to the employee's employer:
(i) the employee's next-of-kin; or
(ii) the employee's attorney.
(c) An employee claiming benefits under this chapter, or Chapter 3, Utah Occupational Disease Act, shall comply with rules adopted by the commission regarding disclosure of medical records of the employee medically relevant to the industrial accident or occupational disease claim.
(3) (a) An employee is barred for any claim of benefits arising from an injury if the employee fails to notify within the time period described in Subsection (3)(b):
(i) the employee's employer in accordance with Subsection (2); or
(ii) the division.
(b) The notice required by Subsection (3)(a) shall be made within:
(i) 180 days of the day on which the injury occurs; or
(ii) in the case of an occupational hearing loss, the time period specified in Section 34A-2-506.
(4) The following constitute notification of injury required by Subsection (2):
(a) an employer's or physician's injury report filed with:
(i) the division;
(ii) the employer; or
(iii) the employer's insurance carrier; or
(b) the payment of any medical or disability benefits by:
(i) the employer; or
(ii) the employer's insurance carrier.
(5) (a) In the form prescribed by the division, each employer shall file a report with the division of any:
(i) work-related fatality; or
(ii) work-related injury resulting in:
(A) medical treatment;
(B) loss of consciousness;
(C) loss of work;
(D) restriction of work; or
(E) transfer to another job.
(b) The employer shall file the report required by Subsection (5)(a) within seven days after:
(i) the occurrence of a fatality or injury;
(ii) the employer's first knowledge of the fatality or injury; or
(iii) the employee's notification of the fatality or injury.
(c) (i) An employer shall file a subsequent report with the division of any previously reported injury that later results in death.
(ii) The subsequent report required by this Subsection (5)(c) shall be filed with the division within seven days following:
(A) the death; or
(B) the employer's first knowledge or notification of the death.
(d) A report is not required to be filed under this Subsection (5) for minor injuries, such as cuts or scratches that require first-aid treatment only, unless:
(i) a treating physician files a report with the division in accordance with Subsection (9); or
(ii) a treating physician is required to file a report with the division in accordance with Subsection (9).
(6) An employer required to file a report under Subsection (5) shall provide the employee with:
(a) a copy of the report submitted to the division; and
(b) a statement, as prepared by the division, of the employee's rights and responsibilities related to the industrial injury.
(7) Each employer shall maintain a record in a manner prescribed by the division of all:
(a) work-related fatalities; or
(b) work-related injuries resulting in:
(i) medical treatment;
(ii) loss of consciousness;
(iii) loss of work;
(iv) restriction of work; or
(v) transfer to another job.
(8) (a) Except as provided in Subsection (8)(b), an employer who refuses or neglects to make reports, to maintain records, or to file reports with the division as required by this section is:
(i) guilty of a class C misdemeanor; and
(ii) subject to a civil assessment:
(A) imposed by the division, subject to the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(B) that may not exceed $500.
(b) An employer is not subject to the civil assessment or guilty of a class C misdemeanor under this Subsection (8) if:
(i) the employer submits a report later than required by this section; and
(ii) the division finds that the employer has shown good cause for submitting a report later than required by this section.
(c) A civil assessment collected under this Subsection (8) shall be deposited into the Uninsured Employers' Fund created in Section 34A-2-704.
(9) (a) A physician attending an injured employee shall comply with rules established by the commission regarding:
(i) fees for physician's services;
(ii) disclosure of medical records of the employee medically relevant to the employee's industrial accident or occupational disease claim; and
(iii) reports to the division regarding:
(A) the condition and treatment of an injured employee; or
(B) any other matter concerning industrial cases that the physician is treating.
(b) A physician who is associated with, employed by, or bills through a hospital is subject to Subsection (9)(a).
(c) A hospital providing services for an injured employee is not subject to the requirements of Subsection (9)(a) except for rules made by the commission that are described in Subsection (9)(a)(ii) or (iii).
(d) The commission's schedule of fees may reasonably differentiate remuneration to be paid to providers of health services based on:
(i) the severity of the employee's condition;
(ii) the nature of the treatment necessary; and
(iii) the facilities or equipment specially required to deliver that treatment.
(e) This Subsection (9) does not prohibit a contract with a provider of health services relating to the pricing of goods and services.
(10) A copy of the initial report filed under Subsection (9)(a)(iii) shall be furnished to:
(a) the division;
(b) the employee; and
(c) (i) the employer; or
(ii) the employer's insurance carrier.
(11) (a) Except as provided in Subsection (11)(b), a person subject to Subsection (9)(a)(iii) who fails to comply with Subsection (9)(a)(iii) is guilty of a class C misdemeanor for each offense.
(b) A person subject to Subsection (9)(a)(iii) is not guilty of a class C misdemeanor under this Subsection (11), if:
(i) the person files a late report; and
(ii) the division finds that there is good cause for submitting a late report.
(12) (a) Subject to appellate review under Section 34A-1-303, the commission has exclusive jurisdiction to hear and determine:
(i) whether goods provided to or services rendered to an employee are compensable pursuant to this chapter or Chapter 3, Utah Occupational Disease Act, including:
(A) medical, nurse, or hospital services;
(B) medicines; and
(C) artificial means, appliances, or prosthesis;
(ii) the reasonableness of the amounts charged or paid for a good or service described in Subsection (12)(a)(i); and
(iii) collection issues related to a good or service described in Subsection (12)(a)(i). (b) Except as provided in Subsection (12)(a), Subsection 34A-2-211(7), or Section 34A-2-212, a person may not maintain a cause of action in any forum within this state other than the commission for collection or payment for goods or services described in Subsection (12)(a) that are compensable under this chapter or Chapter 3, Utah Occupational Disease Act.
Section 460. Section 34A-2-704 is amended to read:
34A-2-704
. Uninsured Employers' Fund.(1) (a) There is created an Uninsured Employers' Fund. The Uninsured Employers' Fund has the purpose of assisting in the payment of workers' compensation benefits to any person entitled to the benefits, if:
(i) that person's employer:
(A) is individually, jointly, or severally liable to pay the benefits; and
(B) (I) becomes or is insolvent;
(II) appoints or has appointed a receiver; or
(III) otherwise does not have sufficient funds, insurance, sureties, or other security to cover workers' compensation liabilities; and
(ii) the employment relationship between that person and the person's employer is localized within the state as provided in Subsection (20).
(b) The Uninsured Employers' Fund succeeds to all monies previously held in the Default Indemnity Fund.
(c) If it becomes necessary to pay benefits, the Uninsured Employers' Fund is liable for all obligations of the employer as set forth in this chapter and Chapter 3, Utah Occupational Disease Act, with the exception of penalties on those obligations.
(2) (a) Monies for the Uninsured Employers' Fund shall be deposited into the Uninsured Employers' Fund in accordance with this chapter and Subsection 59-9-101(2).
(b) The commissioner shall appoint an administrator of the Uninsured Employers' Fund.
(c) (i) The state treasurer is the custodian of the Uninsured Employers' Fund.
(ii) The administrator shall make provisions for and direct distribution from the Uninsured Employers' Fund.
(3) Reasonable costs of administering the Uninsured Employers' Fund or other fees required to be paid by the Uninsured Employers' Fund may be paid from the Uninsured Employers' Fund.
(4) The state treasurer shall:
(a) receive workers' compensation premium assessments from the State Tax Commission; and
(b) invest the Uninsured Employers' Fund to ensure maximum investment return for both long and short term investments in accordance with Section 51-7-12.5.
(5) (a) The administrator may employ, retain, or appoint counsel to represent the Uninsured Employers' Fund in all proceedings brought to enforce claims against or on behalf of the Uninsured Employers' Fund.
(b) If requested by the commission, the following shall aid in the representation of the Uninsured Employers' Fund:
(i) the attorney general; or
(ii) the city attorney, or county attorney of the locality in which:
(A) any investigation, hearing, or trial under this chapter or Chapter 3, Utah Occupational Disease Act, is pending;
(B) the employee resides; or
(C) an employer:
(I) resides; or
(II) is doing business.
(6) To the extent of the compensation and other benefits paid or payable to or on behalf of an employee or the employee's dependents from the Uninsured Employers' Fund, the Uninsured Employers' Fund, by subrogation, has all the rights, powers, and benefits of the employee or the employee's dependents against the employer failing to make the compensation payments.
(7) (a) The receiver, trustee, liquidator, or statutory successor of an employer meeting a condition listed in Subsection (1)(a)(i)(B) is bound by settlements of covered claims by the Uninsured Employers' Fund.
(b) The court with jurisdiction shall grant all payments made under this section a priority equal to that to which the claimant would have been entitled in the absence of this section against the assets of the employer meeting a condition listed in Subsection (1)(a)(i)(B).
(c) The expenses of the Uninsured Employers' Fund in handling claims shall be accorded the same priority as the liquidator's expenses.
(8) (a) The administrator shall periodically file the information described in Subsection (8)(b) with the receiver, trustee, or liquidator of:
(i) an employer that meets a condition listed in Subsection (1)(a)(i)(B);
(ii) a public agency insurance mutual, as defined in Section 31A-1-103, that meets a condition listed in Subsection (1)(a)(i)(B); or
(iii) an insolvent insurance carrier.
(b) The information required to be filed under Subsection (8)(a) is:
(i) statements of the covered claims paid by the Uninsured Employers' Fund; and
(ii) estimates of anticipated claims against the Uninsured Employers' Fund.
(c) The filings under this Subsection (8) shall preserve the rights of the Uninsured Employers' Fund for claims against the assets of the employer that meets a condition listed in Subsection (1)(a)(i)(B).
(9) When any injury or death for which compensation is payable from the Uninsured Employers' Fund has been caused by the wrongful act or neglect of another person not in the same employment, the Uninsured Employers' Fund has the same rights as allowed under Section 34A-2-106.
(10) The Uninsured Employers' Fund, subject to approval of the administrator, shall discharge its obligations by:
(a) adjusting its own claims; or
(b) contracting with an adjusting company, risk management company, insurance company, or other company that has expertise and capabilities in adjusting and paying workers' compensation claims.
(11) (a) For the purpose of maintaining the Uninsured Employers' Fund, an administrative law judge, upon rendering a decision with respect to any claim for workers' compensation benefits in which an employer that meets a condition listed in Subsection (1)(a)(i)(B) was duly joined as a party, shall:
(i) order the employer that meets a condition listed in Subsection (1)(a)(i)(B) to reimburse the Uninsured Employers' Fund for all benefits paid to or on behalf of an injured employee by the Uninsured Employers' Fund along with interest, costs, and attorneys' fees; and
(ii) impose a penalty against the employer that meets a condition listed in Subsection (1)(a)(i)(B) of 15% of the value of the total award in connection with the claim that shall be paid into the Uninsured Employers' Fund.
(b) Awards may be docketed as other awards under this chapter and Chapter 3, Utah Occupational Disease Act.
(12) The liability of the state, the commission, and the state treasurer, with respect to payment of any compensation benefits, expenses, fees, or disbursement properly chargeable against the Uninsured Employers' Fund, is limited to the assets in the Uninsured Employers' Fund, and they are not otherwise in any way liable for the making of any payment.
(13) The commission may make reasonable rules for the processing and payment of claims for compensation from the Uninsured Employers' Fund.
(14) (a) (i) If it becomes necessary for the Uninsured Employers' Fund to pay benefits under this section to an employee described in Subsection (14)(a)(ii), the Uninsured Employers' Fund may assess all other self-insured employers amounts necessary to pay:
(A) the obligations of the Uninsured Employers' Fund subsequent to a condition listed in Subsection (1)(a)(i)(B) occurring;
(B) the expenses of handling covered claims subsequent to a condition listed in Subsection (1)(a)(i)(B) occurring;
(C) the cost of examinations under Subsection (15); and
(D) other expenses authorized by this section.
(ii) This Subsection (14) applies to benefits paid to an employee of:
(A) a self-insured employer, as defined in Section 34A-2-201.5, that meets a condition listed in Subsection (1)(a)(i)(B); or
(B) if the self-insured employer that meets a condition described in Subsection (1)(a)(i)(B) is a public agency insurance mutual, a member of the public agency insurance mutual.
(b) The assessments of each self-insured employer shall be in the proportion that the manual premium of the self-insured employer for the preceding calendar year bears to the manual premium of all self-insured employers for the preceding calendar year.
(c) Each self-insured employer shall be notified of the self-insured employer's assessment not later than 30 days before the day on which the assessment is due.
(d) (i) A self-insured employer may not be assessed in any year an amount greater than 2% of that self-insured employer's manual premium for the preceding calendar year.
(ii) If the maximum assessment does not provide in any one year an amount sufficient to make all necessary payments from the Uninsured Employers' Fund for one or more self-insured employers that meet a condition listed in Subsection (1)(a)(i)(B), the unpaid portion shall be paid as soon as funds become available.
(e) All self-insured employers are liable under this section for a period not to exceed three years after the day on which the Uninsured Employers' Fund first pays benefits to an employee described in Subsection (14)(a)(ii) for the self-insured employer that meets a condition listed in Subsection (1)(a)(i)(B).
(f) This Subsection (14) does not apply to claims made against a self-insured employer that meets a condition listed in Subsection (1)(a)(i)(B) if the condition listed in Subsection (1)(a)(i)(B) occurred prior to July 1, 1986.
(15) (a) The following shall notify the division of any information indicating that any of the following may be insolvent or in a financial condition hazardous to its employees or the public:
(i) a self-insured employer; or
(ii) if the self-insured employer is a public agency insurance mutual, a member of the public agency insurance mutual.
(b) Upon receipt of the notification described in Subsection (15)(a) and with good cause appearing, the division may order an examination of:
(i) that self-insured employer; or
(ii) if the self-insured employer is a public agency insurance mutual, a member of the public agency mutual.
(c) The cost of the examination ordered under Subsection (15)(b) shall be assessed against all self-insured employers as provided in Subsection (14).
(d) The results of the examination ordered under Subsection (15)(b) shall be kept confidential.
(16) (a) In any claim against an employer by the Uninsured Employers' Fund, or by or on behalf of the employee to whom or to whose dependents compensation and other benefits are paid or payable from the Uninsured Employers' Fund, the burden of proof is on the employer or other party in interest objecting to the claim.
(b) The claim described in Subsection (16)(a) is presumed to be valid up to the full amount of workers' compensation benefits claimed by the employee or the employee's dependents.
(c) This Subsection (16) applies whether the claim is filed in court or in an adjudicative proceeding under the authority of the commission.
(17) A partner in a partnership or an owner of a sole proprietorship may not recover compensation or other benefits from the Uninsured Employers' Fund if:
(a) the person is not included as an employee under Subsection 34A-2-104(3); or
(b) the person is included as an employee under Subsection 34A-2-104(3), but:
(i) the person's employer fails to insure or otherwise provide adequate payment of direct compensation; and
(ii) the failure described in Subsection (17)(b)(i) is attributable to an act or omission over which the person had or shared control or responsibility.
(18) A director or officer of a corporation may not recover compensation or other benefits from the Uninsured Employers' Fund if the director or officer is excluded from coverage under Subsection 34A-2-104(4).
(19) The Uninsured Employers' Fund:
(a) shall be:
(i) used in accordance with this section only for:
(A) the purpose of assisting in the payment of workers' compensation benefits in accordance with Subsection (1); and
(B) in accordance with Subsection (3), payment of:
(I) reasonable costs of administering the Uninsured Employers' Fund; or
(II) fees required to be paid by the Uninsured Employers' Fund; and
(ii) expended according to processes that can be verified by audit; and
(b) may not be used for:
(i) administrative costs unrelated to the Uninsured Employers' Fund; or
(ii) any activity of the commission other than an activity described in Subsection (19)(a).
(20) (a) For purposes of Subsection (1), an employment relationship is localized in the state if:
(i) (A) the employer who is liable for the benefits has a business premise in the state; and
(B) (I) the contract for hire is entered into in the state; or
(II) the employee regularly performs work duties in the state for the employer who is liable for the benefits; or
(ii) the employee is:
(A) a resident of the state; and
(B) regularly performs work duties in the state for the employer who is liable for the benefits.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall by rule define what constitutes regularly performing work duties in the state.
Section 461. Section 34A-2-801 is amended to read:
34A-2-801
. Initiating adjudicative proceedings -- Procedure for review of administrative action.(1) (a) To contest an action of the employee's employer or its insurance carrier concerning a compensable industrial accident or occupational disease alleged by the employee, any of the following shall file an application for hearing with the Division of Adjudication:
(i) the employee; or
(ii) a representative of the employee, the qualifications of whom are defined in rule by the commission.
(b) To appeal the imposition of a penalty or other administrative act imposed by the division on the employer or its insurance carrier for failure to comply with this chapter or Chapter 3, Utah Occupational Disease Act, any of the following shall file an application for hearing with the Division of Adjudication:
(i) the employer;
(ii) the insurance carrier; or
(iii) a representative of either the employer or the insurance carrier, the qualifications of whom are defined in rule by the commission.
(c) A person providing goods or services described in Subsections 34A-2-407(12) and 34A-3-108(12) may file an application for hearing in accordance with Section 34A-2-407 or 34A-3-108.
(d) An attorney may file an application for hearing in accordance with Section 34A-1-309.
(2) Unless a party in interest appeals the decision of an administrative law judge in accordance with Subsection (3), the decision of an administrative law judge on an application for hearing filed under Subsection (1) is a final order of the commission 30 days after the date the decision is issued.
(3) (a) A party in interest may appeal the decision of an administrative law judge by filing a motion for review with the Division of Adjudication within 30 days of the date the decision is issued.
(b) Unless a party in interest to the appeal requests under Subsection (3)(c) that the appeal be heard by the Appeals Board, the commissioner shall hear the review.
(c) A party in interest may request that an appeal be heard by the Appeals Board by filing the request with the Division of Adjudication:
(i) as part of the motion for review; or
(ii) if requested by a party in interest who did not file a motion for review, within 20 days of the date the motion for review is filed with the Division of Adjudication.
(d) A case appealed to the Appeals Board shall be decided by the majority vote of the Appeals Board.
(4) All records on appeals shall be maintained by the Division of Adjudication. Those records shall include an appeal docket showing the receipt and disposition of the appeals on review.
(5) Upon appeal, the commissioner or Appeals Board shall make its decision in accordance with Section 34A-1-303.
(6) The commissioner or Appeals Board shall promptly notify the parties to any proceedings before it of its decision, including its findings and conclusions.
(7) The decision of the commissioner or Appeals Board is final unless within 30 days after the date the decision is issued further appeal is initiated under the provisions of this section or [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(8) (a) Within 30 days after the date the decision of the commissioner or Appeals Board is issued, any aggrieved party may secure judicial review by commencing an action in the court of appeals against the commissioner or Appeals Board for the review of the decision of the commissioner or Appeals Board.
(b) In an action filed under Subsection (8)(a):
(i) any other party to the proceeding before the commissioner or Appeals Board shall be made a party; and
(ii) the commission shall be made a party.
(c) A party claiming to be aggrieved may seek judicial review only if the party has exhausted the party’s remedies before the commission as provided by this section.
(d) At the request of the court of appeals, the commission shall certify and file with the court all documents and papers and a transcript of all testimony taken in the matter together with the decision of the commissioner or Appeals Board.
Section 462. Section 34A-5-102 is amended to read:
34A-5-102
. Definitions.As used in this chapter:
(1) "Apprenticeship" means a program for the training of apprentices including a program providing the training of those persons defined as apprentices by Section 35A-6-102.
(2) "Bona fide occupational qualification" means a characteristic applying to an employee:
(a) that is necessary to the operation; or
(b) is the essence of the employee's employer's business.
(3) "Court" means:
(a) the district court in the judicial district of the state in which the asserted unfair employment practice occurred; or
(b) if this court is not in session at that time, a judge of the court described in Subsection (3)(a).
(4) "Director" means the director of the division.
(5) "Disability" means a physical or mental disability as defined and covered by the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
(6) "Division" means the Division of Antidiscrimination and Labor.
(7) "Employee" means any person applying with or employed by an employer.
(8) (a) "Employer" means:
(i) the state;
(ii) any political subdivision;
(iii) a board, commission, department, institution, school district, trust, or agent of the state or its political subdivisions; or
(iv) a person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year.
(b) "Employer" does not include:
(i) a religious organization or association;
(ii) a religious corporation sole; or
(iii) any corporation or association constituting a wholly owned subsidiary or agency of any religious organization or association or religious corporation sole.
(9) "Employment agency" means any person:
(a) undertaking to procure employees or opportunities to work for any other person; or
(b) holding itself out to be equipped to take an action described in Subsection (9)(a).
(10) "Joint apprenticeship committee" means any association of representatives of a labor organization and an employer providing, coordinating, or controlling an apprentice training program.
(11) "Labor organization" means any organization that exists for the purpose in whole or in part of:
(a) collective bargaining;
(b) dealing with employers concerning grievances, terms or conditions of employment; or
(c) other mutual aid or protection in connection with employment.
(12) "National origin" means the place of birth, domicile, or residence of an individual or of an individual's ancestors.
(13) "On-the-job-training" means any program designed to instruct a person who, while learning the particular job for which the person is receiving instruction:
(a) is also employed at that job; or
(b) may be employed by the employer conducting the program during the course of the program, or when the program is completed.
(14) "Person" means one or more individuals, partnerships, associations, corporations, legal representatives, trusts or trustees, receivers, the state and all political subdivisions and agencies of the state.
(15) "Presiding officer" means the same as that term is defined in Section [63-46b-2] 63G-4-103.
(16) "Prohibited employment practice" means a practice specified as discriminatory, and therefore unlawful, in Section 34A-5-106.
(17) "Retaliate" means the taking of adverse action by an employer, employment agency, labor organization, apprenticeship program, on-the-job training program, or vocational school against one of its employees, applicants, or members because the employee, applicant, or member:
(a) has opposed any employment practice prohibited under this chapter; or
(b) filed charges, testified, assisted, or participated in any way in any proceeding, investigation, or hearing under this chapter.
(18) "Vocational school" means any school or institution conducting a course of instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to pursue a manual, technical, industrial, business, commercial, office, personal services, or other nonprofessional occupations.
Section 463. Section 34A-5-107 is amended to read:
34A-5-107
. Procedure for aggrieved person to file claim -- Investigations -- Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.(1) (a) Any person claiming to be aggrieved by a discriminatory or prohibited employment practice may, or that person's attorney or agent may, make, sign, and file with the division a request for agency action.
(b) Every request for agency action shall be verified under oath or affirmation.
(c) A request for agency action made under this section shall be filed within 180 days after the alleged discriminatory or prohibited employment practice occurred.
(d) The division may transfer a request for agency action filed with the division pursuant to this section to the federal Equal Employment Opportunity Commission in accordance with the provisions of any work-share agreement that is:
(i) between the division and the Equal Employment Opportunity Commission; and
(ii) in effect on the day on which the request for agency action is transferred.
(2) Any employer, labor organization, joint apprenticeship committee, or vocational school who has an employee or member who refuses or threatens to refuse to comply with this chapter may file with the division a request for agency action asking the division for assistance to obtain the employee's or member's compliance by conciliation or other remedial action.
(3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the division shall promptly assign an investigator to attempt a settlement between the parties by conference, conciliation, or persuasion.
(b) If no settlement is reached, the investigator shall make a prompt impartial investigation of all allegations made in the request for agency action.
(c) The division and its staff, agents, and employees:
(i) shall conduct every investigation in fairness to all parties and agencies involved; and
(ii) may not attempt a settlement between the parties if it is clear that no discriminatory or prohibited employment practice has occurred.
(d) An aggrieved party may withdraw the request for agency action prior to the issuance of a final order.
(4) (a) If the initial attempts at settlement are unsuccessful, and the investigator uncovers insufficient evidence during the investigation to support the allegations of a discriminatory or prohibited employment practice set out in the request for agency action, the investigator shall formally report these findings to the director or the director's designee.
(b) Upon receipt of the investigator's report described in Subsection (4)(a), the director or the director's designee may issue a determination and order for dismissal of the adjudicative proceeding.
(c) A party may make a written request to the Division of Adjudication for an evidentiary hearing to review de novo the director's or the director's designee's determination and order within 30 days of the date the determination and order for dismissal is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the determination and order issued by the director or the director's designee becomes the final order of the commission.
(5) (a) If the initial attempts at settlement are unsuccessful and the investigator uncovers sufficient evidence during the investigation to support the allegations of a discriminatory or prohibited employment practice set out in the request for agency action, the investigator shall formally report these findings to the director or the director's designee.
(b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the director or the director's designee may issue a determination and order based on the investigator's report.
(ii) A determination and order issued under this Subsection (5)(b) shall:
(A) direct the respondent to cease any discriminatory or prohibited employment practice; and
(B) provide relief to the aggrieved party as the director or the director's designee determines is appropriate.
(c) A party may file a written request to the Division of Adjudication for an evidentiary hearing to review de novo the director's or the director's designee's determination and order within 30 days of the date the determination and order is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the determination and order issued by the director or the director's designee in accordance with Subsection (5)(b) becomes the final order of the commission.
(6) In any adjudicative proceeding to review the director's or the director's designee's determination that a prohibited employment practice has occurred, the division shall present the factual and legal basis of the determination or order issued under Subsection (5).
(7) (a) Prior to commencement of an evidentiary hearing:
(i) the party filing the request for agency action may reasonably and fairly amend any allegation; and
(ii) the respondent may amend its answer.
(b) An amendment permitted under this Subsection (7) may be made:
(i) during or after a hearing; and
(ii) only with permission of the presiding officer.
(8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a respondent has not engaged in a discriminatory or prohibited employment practice, the presiding officer shall issue an order dismissing the request for agency action containing the allegation of a discriminatory or prohibited employment practice.
(b) The presiding officer may order that the respondent be reimbursed by the complaining party for the respondent's attorneys' fees and costs.
(9) If upon all the evidence at the hearing, the presiding officer finds that a respondent has engaged in a discriminatory or prohibited employment practice, the presiding officer shall issue an order requiring the respondent to:
(a) cease any discriminatory or prohibited employment practice; and
(b) provide relief to the complaining party, including:
(i) reinstatement;
(ii) back pay and benefits;
(iii) attorneys' fees; and
(iv) costs.
(10) Conciliation between the parties is to be urged and facilitated at all stages of the adjudicative process.
(11) (a) Either party may file with the Division of Adjudication a written request for review before the commissioner or Appeals Board of the order issued by the presiding officer in accordance with:
(i) Section [63-46b-12] 63G-4-301; and
(ii) Chapter 1, Part 3, Adjudicative Proceedings.
(b) If there is no timely request for review, the order issued by the presiding officer becomes the final order of the commission.
(12) An order of the commission under Subsection (11)(a) is subject to judicial review as provided in:
(a) Section [63-46b-16] 63G-4-403; and
(b) Chapter 1, Part 3, Adjudicative Proceedings.
(13) The commission shall have authority to make rules concerning procedures under this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(14) The commission and its staff may not divulge or make public any information gained from any investigation, settlement negotiation, or proceeding before the commission except as provided in Subsections (14)(a) through (d).
(a) Information used by the director or the director's designee in making any determination may be provided to all interested parties for the purpose of preparation for and participation in proceedings before the commission.
(b) General statistical information may be disclosed provided the identities of the individuals or parties are not disclosed.
(c) Information may be disclosed for inspection by the attorney general or other legal representatives of the state or the commission.
(d) Information may be disclosed for information and reporting requirements of the federal government.
(15) The procedures contained in this section are the exclusive remedy under state law for employment discrimination based upon:
(a) race;
(b) color;
(c) sex;
(d) retaliation;
(e) pregnancy, childbirth, or pregnancy-related conditions;
(f) age;
(g) religion;
(h) national origin; or
(i) disability.
(16) (a) The commencement of an action under federal law for relief based upon any act prohibited by this chapter bars the commencement or continuation of any adjudicative proceeding before the commission in connection with the same claims under this chapter.
(b) The transfer of a request for agency action to the Equal Employment Opportunity Commission in accordance with Subsection (1)(d) is considered the commencement of an action under federal law for purposes of Subsection (16)(a).
(c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the exclusive remedy provision set forth in Subsection (15).
Section 464. Section 34A-5-108 is amended to read:
34A-5-108
. Judicial enforcement of division findings.(1) The commission or the attorney general at the request of the commission shall commence an action under Section [63-46b-19] 63G-4-501 for civil enforcement of a final order of the commission issued under Subsection 34A-5-107(11) if:
(a) the order finds that there is reasonable cause to believe that a respondent has engaged or is engaging in discriminatory or prohibited employment practices made unlawful by this chapter;
(b) counsel to the commission or the attorney general determines after reasonable inquiry that the order is well grounded in fact and is warranted by existing law;
(c) the respondent has not received an order of automatic stay or discharge from the United States Bankruptcy Court; and
(d) (i) the commission has not accepted a conciliation agreement to which the aggrieved party and respondent are parties; or
(ii) the respondent has not conciliated or complied with the final order of the commission within 30 days from the date the order is issued.
(2) If the respondent seeks judicial review of the final order under Section [63-46b-16] 63G-4-403, pursuant to Section [63-46b-18] 63G-4-405 the commission may stay seeking civil enforcement pending the completion of the judicial review.
Section 465. Section 34A-6-103 is amended to read:
34A-6-103
. Definitions.As used in this chapter:
(1) "Administrator" means the director of the Division of Occupational Safety and Health.
(2) "Amendment" means such modification or change in a code, standard, rule, or order intended for universal or general application.
(3) "Commission" means the Labor Commission.
(4) "Council" means the Utah Occupational Safety and Health Advisory Council.
(5) "Division" means the Division of Occupational Safety and Health.
(6) "Employee" includes any person suffered or permitted to work by an employer.
(7) "Employer" means:
(a) the state;
(b) each county, city, town, and school district in the state; and
(c) every person, firm, and private corporation, including public utilities, having one or more workers or operatives regularly employed in the same business, or in or about the same establishment, under any contract of hire.
(8) "Hearing" means a proceeding conducted by the commission.
(9) "Imminent danger" means a danger exists which reasonably could be expected to cause an occupational disease, death, or serious physical harm immediately, or before the danger could be eliminated through enforcement procedures under this chapter.
(10) "National consensus standard" means any occupational safety and health standard or modification:
(a) adopted by a nationally recognized standards-producing organization under procedures where it can be determined by the administrator and division that persons interested and affected by the standard have reached substantial agreement on its adoption;
(b) formulated in a manner which affords an opportunity for diverse views to be considered; and
(c) designated as such a standard by the Secretary of the United States Department of Labor.
(11) "Person" means the general public, one or more individuals, partnerships, associations, corporations, legal representatives, trustees, receivers, and the state and its political subdivisions.
(12) "Publish" means publication in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(13) "Secretary" means the Secretary of the United States Department of Labor.
(14) "Standard" means an occupational health and safety standard or group of standards which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary to provide safety and healthful employment and places of employment.
(15) "Variance" means a special, limited modification or change in the code or standard applicable to the particular establishment of the employer or person petitioning for the modification or change.
(16) "Workplace" means any place of employment.
Section 466. Section 34A-6-105 is amended to read:
34A-6-105
. Procedures -- Adjudicative proceedings.The commission, the division, and the administrator shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in any adjudicative proceedings that they conduct under this chapter.
Section 467. Section 34A-6-202 is amended to read:
34A-6-202
. Standards -- Procedure for issuance, modification, or revocation by division -- Emergency temporary standard -- Variances from standards -- Statement of reasons for administrator's actions -- Judicial review -- Priority for establishing standards.(1) (a) The division, as soon as practicable, shall issue as standards any national consensus standard, any adopted federal standard, or any adopted Utah standard, unless it determines that issuance of the standard would not result in improved safety or health.
(b) All codes, standards, and rules adopted under Subsection (1)(a) shall take effect 30 days after publication unless otherwise specified.
(c) If any conflict exists between standards, the division shall issue the standard that assures the greatest protection of safety or health for affected employees.
(2) The division may issue, modify, or revoke any standard as follows:
(a) (i) Whenever the administrator determines upon the basis of information submitted in writing by an interested person, a representative of any organization of employers or employees, a nationally recognized standards-producing organization, the Department of Health, or a state agency or political subdivision, or on information developed by the division or otherwise available, that a rule should be promulgated to promote the objectives of this chapter, the administrator may request recommendations from the advisory council.
(ii) The administrator shall provide the advisory council with proposals, together with all pertinent factual information developed by the division, or otherwise available, including the results of research, demonstrations, and experiments.
(iii) The advisory council shall submit to the administrator its recommendations regarding the rule to be promulgated within a period as prescribed by the administrator.
(b) The division shall publish a proposed rule issuing, modifying, or revoking an occupational safety or health standard and shall afford interested parties an opportunity to submit written data or comments as prescribed by [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. When the administrator determines that a rule should be issued, the division shall publish the proposed rule after the submission of the advisory council's recommendations or the expiration of the period prescribed by the administrator for submission.
(c) The administrator, in issuing standards for toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard during an employee's working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and other information deemed appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience under this and other health and safety laws. Whenever practicable, the standard shall be expressed in terms of objective criteria and of the performance desired.
(d) (i) Any employer may apply to the administrator for a temporary order granting a variance from a standard issued under this section. Temporary orders shall be granted only if the employer:
(A) files an application which meets the requirements of Subsection (2)(d)(iv);
(B) establishes that the employer is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed for compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;
(C) establishes that the employer is taking all available steps to safeguard the employer's employees against hazards; and
(D) establishes that the employer has an effective program for compliance as quickly as practicable.
(ii) Any temporary order shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail the employer's program for compliance with the standard. A temporary order may be granted only after notice to employees and an opportunity for a public hearing; provided, that the administrator may issue one interim order effective until a decision is made after public hearing.
(iii) A temporary order may not be in effect longer than the period reasonably required by the employer to achieve compliance. In no case shall the period of a temporary order exceed one year.
(iv) An application for a temporary order under Subsection (2)(d) shall contain:
(A) a specification of the standard or part from which the employer seeks a variance;
(B) a representation by the employer, supported by representations from qualified persons having first-hand knowledge of the facts represented, that the employer is unable to comply with the standard or some part of the standard;
(C) a detailed statement of the reasons the employer is unable to comply;
(D) a statement of the measures taken and anticipated with specific dates, to protect employees against the hazard;
(E) a statement of when the employer expects to comply with the standard and what measures the employer has taken and those anticipated, giving specific dates for compliance; and
(F) a certification that the employer has informed the employer's employees of the application by:
(I) giving a copy to their authorized representative;
(II) posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted; and
(III) by other appropriate means.
(v) The certification required under Subsection (2)(d)(iv) shall contain a description of how employees have been informed.
(vi) The information to employees required under Subsection (2)(d)(v) shall inform the employees of their right to petition the division for a hearing.
(vii) The administrator is authorized to grant a variance from any standard or some part of the standard when the administrator determines that it is necessary to permit an employer to participate in a research and development project approved by the administrator to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.
(e) (i) Any standard issued under this subsection shall prescribe the use of labels or other forms of warning necessary to ensure that employees are apprised of all hazards, relevant symptoms and emergency treatment, and proper conditions and precautions of safe use or exposure. When appropriate, a standard shall prescribe suitable protective equipment and control or technological procedures for use in connection with such hazards and provide for monitoring or measuring employee exposure at such locations and intervals, and in a manner necessary for the protection of employees. In addition, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available by the employer, or at his cost, to employees exposed to hazards in order to most effectively determine whether the health of employees is adversely affected by exposure. If medical examinations are in the nature of research as determined by the division, the examinations may be furnished at division expense. The results of such examinations or tests shall be furnished only to the division; and, at the request of the employee, to the employee's physician.
(ii) The administrator may by rule make appropriate modifications in requirements for the use of labels or other forms of warning, monitoring or measuring, and medical examinations warranted by experience, information, or medical or technological developments acquired subsequent to the promulgation of the relevant standard.
(f) Whenever a rule issued by the administrator differs substantially from an existing national consensus standard, the division shall publish a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard.
(g) Whenever a rule, standard, or national consensus standard is modified by the secretary so as to make less restrictive the federal Williams-Steiger Occupational Safety and Health Act of 1970, the less restrictive modification shall be immediately applicable to this chapter and shall be immediately implemented by the division.
(3) (a) The administrator shall provide an emergency temporary standard to take immediate effect upon publication if the administrator determines that:
(i) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and
(ii) that the standard is necessary to protect employees from danger.
(b) An emergency standard shall be effective until superseded by a standard issued in accordance with the procedures prescribed in Subsection (3)(c).
(c) Upon publication of an emergency standard the division shall commence a proceeding in accordance with Subsection (2) and the standard as published shall serve as a proposed rule for the proceedings. The division shall issue a standard under Subsection (3) no later than 120 days after publication of the emergency standard.
(4) (a) Any affected employer may apply to the division for a rule or order for a variance from a standard issued under this section. Affected employees shall be given notice of each application and may participate in a hearing. The administrator shall issue a rule or order if the administrator determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and a workplace to the employer's employees that are as safe and healthful as those which would prevail if the employer complied with the standard.
(b) The rule or order issued under Subsection (4)(a) shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations and processes that the employer must adopt and use to the extent they differ from the standard in question.
(c) A rule or order issued under Subsection (4)(a) may be modified or revoked upon application by an employer, employees, or by the administrator on its own motion, in the manner prescribed for its issuance under Subsection (4) at any time after six months from its issuance.
(5) The administrator shall include a statement of reasons for the administrator's actions when the administrator:
(a) issues any code, standard, rule, or order;
(b) grants any exemption or extension of time; or
(c) compromises, mitigates, or settles any penalty assessed under this chapter.
(6) Any person adversely affected by a standard issued under this section, at any time prior to 60 days after a standard is issued, may file a petition challenging its validity with the district court having jurisdiction for judicial review. A copy of the petition shall be served upon the division by the petitioner. The filing of a petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the division shall be conclusive if supported by substantial evidence on the record as a whole.
(7) In determining the priority for establishing standards under this section, the division shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments. The administrator shall also give due regard to the recommendations of the Department of Health about the need for mandatory standards in determining the priority for establishing the standards.
Section 468. Section 34A-6-301 is amended to read:
34A-6-301
. Inspection and investigation of workplace, worker injury, illness, or complaint -- Warrants -- Attendance of witnesses -- Recordkeeping by employers -- Employer and employee representatives -- Request for inspection -- Compilation and publication of reports and information -- Rules.(1) (a) The division or its representatives, upon presenting appropriate credentials to the owner, operator, or agent in charge, may:
(i) enter without delay at reasonable times any workplace where work is performed by an employee of an employer;
(ii) inspect and investigate during regular working hours and at other reasonable times in a reasonable manner, any workplace, worker injury, occupational disease, or complaint and all pertinent methods, operations, processes, conditions, structures, machines, apparatus, devices, equipment, and materials in the workplace; and
(iii) question privately any such employer, owner, operator, agent, or employee.
(b) The division, upon an employer's refusal to permit an inspection, may seek a warrant pursuant to the Utah Rules of Criminal Procedure.
(2) (a) The division or its representatives may require the attendance and testimony of witnesses and the production of evidence under oath.
(b) Witnesses shall receive fees and mileage in accordance with Section 78-46-28.
(c) (i) If any person fails or refuses to obey an order of the division to appear, any district court within the jurisdiction of which such person is found, or resides or transacts business, upon the application by the division, shall have jurisdiction to issue to any person an order requiring that person to:
(A) appear to produce evidence if, as, and when so ordered; and
(B) give testimony relating to the matter under investigation or in question.
(ii) Any failure to obey an order of the court described in this Subsection (2)(c) may be punished by the court as a contempt.
(3) (a) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, requiring employers:
(i) to keep records regarding activities related to this chapter considered necessary for enforcement or for the development of information about the causes and prevention of occupational accidents and diseases; and
(ii) through posting of notices or other means, to inform employees of their rights and obligations under this chapter including applicable standards.
(b) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, requiring employers to keep records regarding any work-related death and injury and any occupational disease as provided in this Subsection (3)(b).
(i) Each employer shall investigate or cause to be investigated all work-related injuries and occupational diseases and any sudden or unusual occurrence or change of conditions that pose an unsafe or unhealthful exposure to employees.
(ii) Each employer shall, within eight hours of occurrence, notify the division of any:
(A) work-related fatality;
(B) disabling, serious, or significant injury; or
(C) occupational disease incident.
(iii) (A) Each employer shall file a report with the Division of Industrial Accidents within seven days after the occurrence of an injury or occupational disease, after the employer's first knowledge of the occurrence, or after the employee's notification of the same, in the form prescribed by the Division of Industrial Accidents, of any work-related fatality or any work-related injury or occupational disease resulting in:
(I) medical treatment;
(II) loss of consciousness;
(III) loss of work;
(IV) restriction of work; or
(V) transfer to another job.
(B) (I) Each employer shall file a subsequent report with the Division of Industrial Accidents of any previously reported injury or occupational disease that later resulted in death.
(II) The subsequent report shall be filed with the Division of Industrial Accidents within seven days following the death or the employer's first knowledge or notification of the death.
(iv) A report is not required for minor injuries, such as cuts or scratches that require first-aid treatment only, unless a treating physician files, or is required to file, the Physician's Initial Report of Work Injury or Occupational Disease with the Division of Industrial Accidents.
(v) A report is not required:
(A) for occupational diseases that manifest after the employee is no longer employed by the employer with which the exposure occurred; or
(B) where the employer is not aware of an exposure occasioned by the employment which results in a compensable occupational disease as defined by Section 34A-3-103.
(vi) Each employer shall provide the employee with:
(A) a copy of the report submitted to the Division of Industrial Accidents; and
(B) a statement, as prepared by the Division of Industrial Accidents, of the employee's rights and responsibilities related to the industrial injury or occupational disease.
(vii) Each employer shall maintain a record in a manner prescribed by the commission of all work-related fatalities or work-related injuries and of all occupational diseases resulting in:
(A) medical treatment;
(B) loss of consciousness;
(C) loss of work;
(D) restriction of work; or
(E) transfer to another job.
(viii) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this Subsection (3)(b) consistent with nationally recognized rules or standards on the reporting and recording of work-related injuries and occupational diseases.
(c) (i) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, requiring employers to keep records regarding exposures to potentially toxic materials or harmful physical agents required to be measured or monitored under Section 34A-6-202.
(ii) (A) The rules made under Subsection (3)(c)(i) shall provide for employees or their representatives:
(I) to observe the measuring or monitoring; and
(II) to have access to the records of the measuring or monitoring, and to records that indicate their exposure to toxic materials or harmful agents.
(B) Each employer shall promptly notify employees being exposed to toxic materials or harmful agents in concentrations that exceed prescribed levels and inform any such employee of the corrective action being taken.
(4) Information obtained by the division shall be obtained with a minimum burden upon employers, especially those operating small businesses.
(5) A representative of the employer and a representative authorized by employees shall be given an opportunity to accompany the division's authorized representative during the physical inspection of any workplace. If there is no authorized employee representative, the division's authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.
(6) (a) (i) (A) Any employee or representative of employees who believes that a violation of an adopted safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the division's authorized representative of the violation or danger. The notice shall be:
(I) in writing, setting forth with reasonable particularity the grounds for notice; and
(II) signed by the employee or representative of employees.
(B) A copy of the notice shall be provided the employer or the employer's agent no later than at the time of inspection.
(C) Upon request of the person giving notice, the person's name and the names of individual employees referred to in the notice shall not appear in the copy or on any record published, released, or made available pursuant to Subsection (7).
(ii) (A) If upon receipt of the notice the division's authorized representative determines there are reasonable grounds to believe that a violation or danger exists, the authorized representative shall make a special inspection in accordance with this section as soon as practicable to determine if a violation or danger exists.
(B) If the division's authorized representative determines there are no reasonable grounds to believe that a violation or danger exists, the authorized representative shall notify the employee or representative of the employees in writing of that determination.
(b) (i) Prior to or during any inspection of a workplace, any employee or representative of employees employed in the workplace may notify the division or its representative of any violation of a standard that they have reason to believe exists in the workplace.
(ii) The division shall:
(A) by rule, establish procedures for informal review of any refusal by a representative of the division to issue a citation with respect to any alleged violation; and
(B) furnish the employees or representative of employees requesting review a written statement of the reasons for the division's final disposition of the case.
(7) (a) The division may compile, analyze, and publish, either in summary or detailed form, all reports or information obtained under this section, subject to the limitations set forth in Section 34A-6-306.
(b) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to carry out its responsibilities under this chapter, including rules for information obtained under this section, subject to the limitations set forth in Section 34A-6-306.
(8) Any employer who refuses or neglects to make reports, to maintain records, or to file reports with the commission as required by this section is guilty of a class C misdemeanor and subject to citation under Section 34A-6-302 and a civil assessment as provided under Section 34A-6-307, unless the commission finds that the employer has shown good cause for submitting a report later than required by this section.
Section 469. Section 34A-6-304 is amended to read:
34A-6-304
. Procedure for review of order entered by administrative law judge -- Continuing jurisdiction of commission.(1) (a) Administrative law judges assigned by the director of the Division of Adjudication shall hear and determine any proceeding assigned to them by the Division of Adjudication.
(b) The administrative law judge shall enter the administrative law judge's findings of fact, conclusions of law, and order not later than 30 days after final receipt of all matters concerned in the hearing.
(c) The findings of fact, conclusions of law, and order of the administrative law judge shall become the final order of the commission unless objections are made in accordance with Subsection (2).
(2) (a) Any party of interest who is dissatisfied with the order entered by an administrative law judge may obtain a review by appealing the decision in accordance with Section [63-46b-12] 63G-4-301 and Chapter 1, Part 3, Adjudicative Proceedings.
(b) The commissioner or Appeals Board shall make its decision in accordance with Section 34A-1-303.
(c) The decision of the commission is final unless judicial review is requested in accordance with Chapter 1, Part 3, Adjudicative Proceedings.
(d) To the extent that new facts are provided, the commission has continuing jurisdiction to amend, reverse, or enhance prior orders.
Section 470. Section 34A-6-307 is amended to read:
34A-6-307
. Civil and criminal penalties.(1) The commission may assess civil penalties against any employer who has received a citation under Section 34A-6-302 as follows:
(a) Except as provided in Subsections (1)(b) through (d), the commission may assess up to $7,000 for each cited violation.
(b) The commission may not assess less than $250 nor more than $7,000 for each cited serious violation. A violation is serious only if:
(i) it arises from a condition, practice, method, operation, or process in the workplace of which the employer knows or should know through the exercise of reasonable diligence; and
(ii) there is a substantial possibility that the condition, practice, method, operation, or process could result in death or serious physical harm.
(c) The commission may not assess less than $5,000 nor more than $70,000 for each cited willful violation.
(d) The commission may assess up to $70,000 for each cited violation if the employer has previously been found to have violated the same standards, code, rule, or order.
(e) After the expiration of the time permitted to an employer to correct a cited violation, the commission may assess up to $7,000 for each day the violation continues uncorrected.
(2) The commission may assess a civil penalty of up to $7,000 for each violation of any posting requirement under this chapter.
(3) In deciding the amount to assess for a civil penalty, the commission shall consider all relevant factors, including:
(a) the size of the employer's business;
(b) the nature of the violation;
(c) the employer's good faith or lack of good faith; and
(d) the employer's previous record of compliance or noncompliance with this chapter.
(4) Any civil penalty collected under this chapter shall be paid into the General Fund.
(5) Criminal penalties under this chapter are as follows:
(a) Any employer who willfully violates any standard, code, rule, or order issued under Section 34A-6-202, or any rule made under this chapter, is guilty of a class A misdemeanor if the violation caused the death of an employee. If the violation causes the death of more than one employee, each death is considered a separate offense.
(b) Any person who gives advance notice of any inspection conducted under this chapter without authority from the administrator or the administrator's representatives is guilty of a class A misdemeanor.
(c) Any person who knowingly makes a false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter is guilty of a class A misdemeanor.
(6) After a citation issued under this chapter and an opportunity for a hearing under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may file an abstract for any uncollected citation penalty in the district court. The filed abstract shall have the effect of a judgment of that court. The abstract shall state the amount of the uncollected citation penalty, reasonable attorneys' fees as set by commission rule, and court costs.
Section 471. Section 34A-7-104 is amended to read:
34A-7-104
. Fees.The owner or user of a boiler required by this part to be inspected shall pay to the commission fees for inspection or for permits to operate in amounts set by the commission pursuant to Section [63-38-3.2] 63J-1-303.
Section 472. Section 34A-7-203 is amended to read:
34A-7-203
. Requirements for operating an elevator or escalators -- Inspection -- Division duties.(1) An elevator or escalator may not operate in this state unless:
(a) the owner or operator of the elevator or escalator obtains an inspection certificate under Subsection (3); and
(b) the inspection certificate described in Subsection (1)(a) has not:
(i) expired under Subsection (3); or
(ii) been suspended under Section 34A-7-204.
(2) An elevator or escalator used or proposed to be used in this state shall be inspected as to its safety to operate in accordance with the safety code:
(a) every two years; or
(b) more frequently than every two years if the division determines that more frequent inspections are necessary.
(3) (a) If upon inspection an elevator or escalator is safe to operate in accordance with the safety code, the inspector shall issue to the owner or operator an inspection certificate.
(b) An inspection certificate issued under Subsection (3)(a) shall expire two years from the date the inspection certificate is issued.
(4) An inspector employed by the division under this part shall at all times meet nationally recognized standards of qualifications for inspectors of elevators and escalators, as defined by rule by the division.
(5) The owner or operator of an elevator or escalator that is used in the state shall pay to the commission a fee in amounts set by the commission pursuant to Section [63-38-3.2] 63J-1-303:
(a) for inspection; and
(b) for an inspection certificate.
(6) The division:
(a) shall provide for the inspection of elevators and escalators in accordance with this section;
(b) shall adopt by rule one or more nationally recognized standards or other safety codes to be used in inspecting elevators or escalators; and
(c) may adopt amendments to the safety code adopted under Subsection (6)(b).
Section 473. Section 34A-8-111 is amended to read:
34A-8-111
. Rulemaking authority.The commission may provide for the administration of this chapter by rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 474. Section 34A-8-112 is amended to read:
34A-8-112
. Administrative review.The employer and the injured worker may apply to the Division of Adjudication for resolution of any issue of law or fact arising under this chapter in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 475. Section 35A-1-104 is amended to read:
35A-1-104
. Department authority.Within all other authority or responsibility granted to it by law, the department may:
(1) adopt rules when authorized by this title, in accordance with the procedures of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(2) purchase, as authorized or required by law, services that the department is responsible to provide for legally eligible persons;
(3) conduct adjudicative proceedings in accordance with the procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(4) establish eligibility standards for its programs, not inconsistent with state or federal law or regulations;
(5) take necessary steps, including legal action, to recover money or the monetary value of services provided to a recipient who is not eligible;
(6) administer oaths, certify to official acts, issue subpoenas to compel witnesses and the production of books, accounts, documents, and other records necessary as evidence;
(7) acquire, manage, and dispose of any real or personal property needed or owned by the department, not inconsistent with state law;
(8) receive gifts, grants, devises, and donations or their proceeds, crediting the program designated by the donor, and using the gift, grant, devise, or donation for the purposes requested by the donor, as long as the request conforms to state and federal policy;
(9) accept and employ volunteer labor or services;
(10) reimburse volunteers for necessary expenses, when the department considers that reimbursement to be appropriate;
(11) carry out the responsibility assigned by the State Workforce Services Plan developed by the State Council on Workforce Services;
(12) provide training and educational opportunities for its staff;
(13) examine and audit the expenditures of any public funds provided to a local authority, agency, or organization that contracts with or receives funds from those authorities or agencies;
(14) accept and administer grants from the federal government and from other sources, public or private;
(15) employ and determine the compensation of clerical, legal, technical, investigative, and other employees necessary to carry out its policymaking, regulatory, and enforcement powers, rights, duties, and responsibilities under this title;
(16) establish and conduct free employment agencies, and bring together employers seeking employees and working people seeking employment, and make known the opportunities for employment in this state;
(17) collect, collate, and publish statistical and other information relating to employees, employers, employments, and places of employment, and other statistics as it considers proper;
(18) encourage the expansion and use of apprenticeship programs meeting state or federal standards for apprenticeship programs;
(19) develop processes to ensure that the department responds to the full range of employee and employer clients; and
(20) carry out the responsibilities assigned to it by statute.
Section 476. Section 35A-1-106 is amended to read:
35A-1-106
. Fees.(1) Unless otherwise provided by statute, the department may adopt a schedule of fees assessed for services provided by the department by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(2) The department shall submit each fee established under this section to the Legislature for its approval as part of the department’s annual appropriations request.
Section 477. Section 35A-1-301 is amended to read:
35A-1-301
. Presiding officers for adjudicative proceedings -- Subpoenas -- Independent judgment -- Consolidation -- Record -- Notice of order.(1) (a) The executive director shall authorize the Division of Adjudication to call, assign a presiding officer, and conduct hearings and adjudicative proceedings when an application for a proceeding is filed with the Division of Adjudication under this title.
(b) The director of the Division of Adjudication or the director’s designee may issue subpoenas. Failure to respond to a properly issued subpoena may result in a contempt citation and offenders may be punished as provided in Section 78-32-15.
(c) Witnesses subpoenaed under this section are allowed fees as provided by law for witnesses in the district court of the state. The fees shall be paid as follows:
(i) The witness fees shall be paid by the state unless the witness is subpoenaed at the instance of a party other than the department.
(ii) Notwithstanding Subsection (1)(c)(i), if the subpoena is issued under Chapter 4, Employment Security Act, the fees are part of the expense of administering that chapter.
(d) A presiding officer assigned under this section may not participate in any case in which the presiding officer is an interested party. Each decision of a presiding officer shall represent the presiding officer's independent judgment.
(2) In the judgment of the presiding officer having jurisdiction of the proceedings the consolidation would not be prejudicial to any party, when the same or substantially similar evidence is relevant and material to the matters in issue in more than one proceeding:
(a) the presiding officer may fix the same time and place for considering each matter;
(b) jointly conduct hearings;
(c) make a single record of the proceedings; and
(d) consider evidence introduced with respect to one proceeding as introduced in the others.
(3) (a) The director shall keep a full and complete record of all adjudicative proceedings in connection with a disputed matter.
(b) All testimony at any hearing shall be recorded but need not be transcribed unless the disputed matter is appealed. If a party requests transcription, the transcription shall be provided at the party's expense.
(c) All records on appeals shall be maintained in the offices of the Division of Adjudication. The records shall include an appeal docket showing the receipt and disposition of the appeals.
(4) A party in interest shall be given notice of the entry of a presiding officer's order or any order or award of the department. The mailing of the copy of the order or award to the last-known address in the files of the department of a party in interest and to the attorneys or agents of record in the case, if any, is considered to be notice of the order.
(5) In any formal adjudication proceeding, the presiding officer may take any action permitted under Section [63-46b-8] 63G-4-206.
Section 478. Section 35A-1-303 is amended to read:
35A-1-303
. Rulemaking.(1) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules governing adjudicative procedures including the forms of notices and the manner of serving notice in all claims.
(b) Except as provided in this title and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the rules made under this section are not required to conform to common law or statutory rules of evidence or other technical rules of procedure.
(2) The rules made under this section shall include procedures to dispose of cases informally, or to expedite claims adjudication, narrow issues, and simplify the methods of proof at hearings.
(3) Any rule made concerning proceedings before the Workforce Appeals Board shall be made in consultation with the Workforce Appeals Board.
Section 479. Section 35A-3-105 is amended to read:
35A-3-105
. Determination of eligibility and responsibility -- Information from State Tax Commission.(1) The division may have access to relevant information contained in the income tax returns of a client, applicant, or person who has a duty to support a client in determining:
(a) eligibility for public assistance;
(b) payment responsibilities for institutional care; or
(c) any other administrative purpose consistent with this chapter.
(2) The information requested by the division shall be:
(a) provided by the State Tax Commission on forms furnished by the division; and
(b) treated as a private record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, by the division.
Section 480. Section 35A-3-111 is amended to read:
35A-3-111
. Collection of overpayments.(1) The department is responsible for the recovery of overpayments required in Section 35A-3-603.
(2) Excess property liens required in the various programs not transferred to the federal government shall remain a condition of eligibility in public assistance programs.
(3) A client can appeal an initial department determination that there has been an overpayment under rules made by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 481. Section 35A-3-207 is amended to read:
35A-3-207
. Community based prevention programs.(1) As used in this section:
(a) "political subdivision" means a town, city, county, or school district;
(b) "qualified sponsor" means a:
(i) political subdivision;
(ii) community nonprofit, religious, or charitable organization;
(iii) regional or statewide nonprofit organization; or
(iv) private for profit or nonprofit child care organization with experience and expertise in operating community-based prevention programs described in Subsection (2) and that are licensed under Title 62A, Chapter 2.
(2) Within appropriations from the Legislature, the department may provide grants to qualified sponsors for community-based prevention programs that:
(a) support parents in their primary care giving role to children;
(b) provide positive alternatives to idleness for school-aged children when school is not in session; and
(c) support other community-based prevention programs.
(3) In awarding grants under this section, the department shall:
(a) request proposals for funding from potential qualified sponsors; and
(b) comply with the requirements of Subsection (4).
(4) In awarding these grants, the department shall ensure that each dollar of funds from political subdivisions or private funds is matched for each dollar received from the department. The value of in-kind contributions such as materials, supplies, paid labor, volunteer labor, and the incremental increase in building maintenance and operation expenses incurred attributable to the prevention program may be considered in meeting this match requirement.
(5) In awarding a grant under this section, the department shall consider:
(a) the cash portion of the proposed match in relation to the financial resources of the qualified sponsor; and
(b) the extent to which the qualified sponsor has:
(i) consulted and collaborated with parents of children who are likely to participate, local parent-teacher organizations, other parent organizations, and the appropriate local interagency council established under Section [63-75-5.7] 63M-9-301;
(ii) identified at risk factors that will be ameliorated through the proposed prevention program;
(iii) identified protective factors and developmental assets that will be supported and strengthened through the proposed prevention program; and
(iv) the financial support of parents and the organizations specified in Subsection (5)(b)(i).
(6) At least 50 percent of the grants awarded under this section shall be awarded to organizations described in Subsection (1)(b)(iv).
(7) No federal funds shall be used as matching funds under this act.
Section 482. Section 35A-3-302 is amended to read:
35A-3-302
. Eligibility requirements.(1) The program of cash assistance provided under this part is known as the Family Employment Program.
(2) (a) The division shall submit a state plan to the Secretary of the United States Department of Health and Human Services to obtain federal funding under the Temporary Assistance for Needy Families Block Grant.
(b) The division shall make the plan consistent with this part and federal law.
(c) If a discrepancy arises between a provision of the state plan and this part, this part supersedes the provision in the state plan.
(3) The services and supports under this part are for both one-parent and two-parent families.
(4) To be eligible for cash assistance under this part, a family shall:
(a) have at least one minor dependent child; or
(b) have a parent who is in the third trimester of a pregnancy.
(5) (a) In an appropriations act, the Legislature shall determine annually the maximum monthly dollar amount of cash assistance for families based on family size.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall establish rules for eligibility and the amount of cash assistance a family is eligible to receive under this part based on:
(i) family size;
(ii) family income;
(iii) income disregards; and
(iv) other relevant factors.
(6) The division shall disregard money on deposit in an Individual Development Account established under Section 35A-3-312 in determining eligibility.
(7) The department shall provide for an appeal of a determination of eligibility in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 483. Section 35A-3-310 is amended to read:
35A-3-310
. Child care services.(1) A parent client may receive assistance for child care under this part for a minor child in the care and custody of the parent client, unless the other parent in a two-parent family:
(a) is capable of caring for the family’s child;
(b) is not employed; and
(c) has not entered into an employment plan with the division.
(2) The division shall encourage a parent client to obtain child care at no cost from a parent, sibling, relative, or other suitable provider.
(3) Within appropriations from the Legislature and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules governing eligibility for child care services for a minor child in the care and custody of a parent who does not receive cash assistance under this part.
Section 484. Section 35A-3-602 is amended to read:
35A-3-602
. Definitions.As used in this part:
(1) "Adjudicative proceeding" means an action or proceeding of the department described in Section [63-46b-1] 63G-4-102.
(2) "Administrative order" means an order issued by the department involving an overpayment of public assistance.
(3) "Court order" means a judgment or order of any court of this state, another state, or the federal government that involves an overpayment of public assistance.
(4) "Department" means the Department of Workforce Services.
(5) "Notice of agency action" means the notice required to commence an adjudicative proceeding as described in Section [63-46b-3] 63G-4-201.
(6) "Obligor" means an individual who is liable to the state under Section 35A-3-603 and applicable federal statutes and regulations, or an individual against whom an administrative or judicial order determining overpayment has been obtained.
(7) (a) "Overpayment" means money, public assistance, or any other thing of value provided under a state or federally funded benefit program to the extent that the person receiving the thing of value is not entitled to receive it or is not entitled to receive it at the level provided.
(b) It includes money paid to a provider under this title in connection with public assistance or any other publicly funded assistance program to the extent that the provider receives payment:
(i) for goods or services not provided; or
(ii) in excess of the amount to which the provider is entitled.
Section 485. Section 35A-3-604 is amended to read:
35A-3-604
. Obligor presumed to have notice of department's rights -- Authority to administer oaths, issue subpoenas, and compel witnesses and production of documents -- Recovery of attorneys' fees, costs, and interest -- Rulemaking authority -- Administrative procedures.(1) An obligor is presumed to have received notice of the rights of the department under this part upon engaging in this state in any of the acts described in Subsections 35A-3-603(4) and (5) or Section 76-8-1203, 76-8-1204, or 76-8-1205.
(2) For the purposes of this part, the department may administer oaths and certify official acts, issue subpoenas, and compel witnesses and the production of business records, documents, and evidence.
(3) (a) Except when an overpayment results from administrative error, the department may recover from the obligor:
(i) reasonable attorneys' fees;
(ii) costs incurred in pursuing administrative remedies under this part; and
(iii) interest at the rate of 1% a month accruing from the date an administrative or judicial order is issued determining the amount due under this part.
(b) The department may recover interest, attorneys' fees, and costs, if notice of the assessment has been included in a notice of agency action issued in conformity with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make, amend, and enforce rules to carry out the provisions of this part.
(5) Service of all notices and orders under this part shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the Utah Rules of Civil Procedure, or rules made by the department that meet standards required by due process.
Section 486. Section 35A-4-202 is amended to read:
35A-4-202
. Employing units.As used in this chapter:
(1) (a) "Employing unit" means:
(i) any individual or type of organization that has or subsequent to January 1, 1935, had one or more individuals performing services for it within the state including any:
(A) partnership;
(B) association;
(C) trust;
(D) estate;
(E) joint stock company;
(F) insurance company;
(G) limited liability company;
(H) limited liability partnership;
(I) joint venture;
(J) corporation, whether domestic or foreign;
(K) the receiver, trustee in bankruptcy, trustee or successor of any entity listed in Subsections (1)(a)(i)(A) through (J);
(L) the legal representative of a deceased person; or
(M) a tribal unit; or
(ii) any properly and legally registered professional employer organization, commonly known as an employee leasing company, as defined by Section 58-59-102.
(b) The department may adopt rules specific to a professional employer organization pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) All individuals performing services within this state for any employing unit that maintains two or more separate establishments within this state are considered to be performing services for a single employing unit for all the purposes of this chapter.
(d) Each individual employed to perform or to assist in performing the work of any person in the service of an employing unit is considered to be engaged by the employing unit for all the purposes of this chapter whether the individual was hired or paid directly by the employing unit or by the person, provided the employing unit had actual or constructive knowledge of the work.
(2) "Hospital" means an institution that is licensed, certified, or approved by the Department of Health as a hospital.
(3) "Institution of higher education," for the purposes of this section, means an educational institution that:
(a) (i) admits, as regular students only, individuals having a certificate of graduation from a high school or the recognized equivalent of a certificate;
(ii) is legally authorized in this state to provide a program of education beyond high school;
(iii) provides:
(A) an educational program for which it awards a bachelor's or higher degree;
(B) a program that is acceptable for full credit toward a bachelor's or higher degree;
(C) a program of postgraduate or postdoctoral studies; or
(D) a program of training to prepare students for gainful employment in a recognized occupation; and
(iv) is a public or other nonprofit institution.
(b) All colleges and universities in this state are institutions of higher education for purposes of this section.
Section 487. Section 35A-4-304 is amended to read:
35A-4-304
. Special provisions regarding transfers of unemployment experience and assignment rates.(1) As used in this section:
(a) "Knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.
(b) "Person" has the meaning given that term by Section 7701(a)(1) of the Internal Revenue Code of 1986.
(c) "Trade or business" includes the employer's workforce.
(d) "Violate or attempt to violate" includes intent to evade, misrepresentation, or willful nondisclosure.
(2) Notwithstanding any other provision of this chapter, Subsections (3) and (4) shall apply regarding assignment of rates and transfers of unemployment experience.
(3) (a) If an employer transfers its trade or business, or a portion of its trade or business, to another employer and, at the time of the transfer, there is common ownership, management, or control of the employers, then the unemployment experience attributable to each employer shall be combined into a common experience rate calculation.
(b) The contribution rates of the employers shall be recalculated and made effective upon the date of the transfer of trade or business as determined by division rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) (i) If one or more of the employers is a qualified employer at the time of the transfer, then all employing units that are party to a transfer described in Subsection (3)(a) of this section shall be assigned an overall contribution rate under Subsection 35A-4-303(4)(d), using combined unemployment experience rating factors, for the rate year during which the transfer occurred and for the subsequent three rate years.
(ii) If none of the employing units is a qualified employer at the time of the transfer, then all employing units that are party to the transfer described in Subsection (3)(a) shall be assigned the highest overall contribution rate applicable at the time of the transfer to any employer who is party to the acquisition for the rate year during which the transfer occurred and for subsequent rate years until the time when one or more of the employing units is a qualified employer.
(iii) Once one or more employing units described in Subsection (3)(c)(ii) is a qualified employer, all the employing units shall be assigned an overall rate under Subsection 35A-4-303(4)(d), using combined unemployment experience rating factors for subsequent rate years, not to exceed three years following the year of the transfer.
(d) The transfer of some or all of an employer's workforce to another employer shall be considered a transfer of its trade or business when, as the result of the transfer, the transferring employer no longer performs trade or business with respect to the transferred workforce, and the trade or business is now performed by the employer to whom the workforce is transferred.
(4) (a) Whenever a person is not an employer under this chapter at the time it acquires the trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to that person if the division finds that the person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions.
(b) The person shall be assigned the applicable new employer rate under Subsection 35A-4-303(5).
(c) In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the division shall use objective factors which may include:
(i) the cost of acquiring the business;
(ii) whether the person continued the business enterprise of the acquired business;
(iii) how long the business enterprise was continued; or
(iv) whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
(5) (a) If a person knowingly violates or attempts to violate Subsection (3) or (4) or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of any of those subsections or provisions, the person is subject to the following penalties:
(i) (A) If the person is an employer, then the employer shall be assigned an overall contribution rate of 5.4% for the rate year during which the violation or attempted violation occurred and for the subsequent rate year.
(B) If the person's business is already at 5.4% for any year, or if the amount of increase in the person's rate would be less than 2% for that year, then a penalty surcharge of contributions of 2% of taxable wages shall be imposed for the rate year during which the violation or attempted violation occurred and for the subsequent rate year.
(ii) (A) If the person is not an employer, the person shall be subject to a civil penalty of not more than $5,000.
(B) The fine shall be deposited in the penalty and interest account established under Section 35A-4-506.
(b) (i) In addition to the penalty imposed by Subsection (5)(a), a violation of this section may be prosecuted as unemployment insurance fraud.
(ii) The determination of the degree of an offense shall be measured by the total value of all contributions avoided or reduced or contributions sought to be avoided or reduced by the unlawful conduct as applied to the degrees listed under Subsection 76-8-1301(2)(a).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules to identify the transfer or acquisition of a business for purposes of this section.
(7) This section shall be interpreted and applied in a manner that meets the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.
Section 488. Section 35A-4-312 is amended to read:
35A-4-312
. Records.(1) (a) Each employing unit shall keep true and accurate work records containing any information the department may prescribe by rule.
(b) The records shall be open to inspection and subject to being copied by the division or its authorized representatives at a reasonable time and as often as may be necessary.
(c) The employing unit shall make the records available in the state for three years after the calendar year in which the services were rendered.
(2) The division may require from an employing unit any sworn or unsworn reports with respect to persons employed by it that the division considers necessary for the effective administration of this chapter.
(3) Except as provided in this section or in Sections 35A-4-103 and 35A-4-106, information obtained under this chapter or obtained from an individual may not be published or open to public inspection in any manner revealing the employing unit's or individual's identity.
(4) (a) The information obtained by the division under this section may not be used in court or admitted into evidence in an action or proceeding, except:
(i) in an action or proceeding arising out of this chapter;
(ii) in an action or proceeding by the Labor Commission to enforce the provisions of Title 34, Chapter 23, Employment of Minors, Chapter 28, Payment of Wages, Chapter 40, Utah Minimum Wage Act, or Title 34A, Utah Labor Code, provided the Labor Commission enters into a written agreement with the division under Subsection (6)(b); or
(iii) under the terms of a court order obtained under Subsection [63-2-202] 63G-2-202(7) and Section [63-2-207] 63G-2-207 of the Government Records Access and Management Act.
(b) The information obtained by the division under this section shall be disclosed to:
(i) a party to an unemployment insurance hearing before an administrative law judge of the department or a review by the Workforce Appeals Board to the extent necessary for the proper presentation of the party's case; or
(ii) an employer, upon request in writing for any information concerning claims for benefits with respect to the employer's former employees.
(5) The information obtained by the division under this section may be disclosed to:
(a) an employee of the department in the performance of the employee's duties in administering this chapter or other programs of the department;
(b) an employee of the Labor Commission for the purpose of carrying out the programs administered by the Labor Commission;
(c) an employee of the governor's office and other state governmental agencies administratively responsible for statewide economic development, to the extent necessary for economic development policy analysis and formulation;
(d) an employee of other governmental agencies that are specifically identified and authorized by federal or state law to receive the information for the purposes stated in the law authorizing the employee of the agency to receive the information;
(e) an employee of a governmental agency or workers' compensation insurer to the extent the information will aid in the detection or avoidance of duplicate, inconsistent, or fraudulent claims against a workers' compensation program, public assistance funds, or the recovery of overpayments of workers' compensation or public assistance funds;
(f) an employee of a law enforcement agency to the extent the disclosure is necessary to avoid a significant risk to public safety or in aid of a felony criminal investigation;
(g) an employee of the State Tax Commission or the Internal Revenue Service for the purposes of audit verification or simplification, state or federal tax compliance, verification of Standard Industry Codes, and statistics;
(h) an employee or contractor of the department or an educational institution, or other governmental entity engaged in workforce investment and development activities under the Workforce Investment Act of 1998 for the purpose of coordinating services with the department, evaluating the effectiveness of those activities, and measuring performance;
(i) an employee of the Governor's Office of Economic Development, for the purpose of periodically publishing in the Directory of Business and Industry, the name, address, telephone number, number of employees by range, Standard Industrial Code, and type of ownership of Utah employers;
(j) the public for any purpose following a written waiver by all interested parties of their rights to nondisclosure; or
(k) an individual whose wage data has been submitted to the department by an employer, so long as no information other than the individual's wage data and the identity of the party who submitted the information is provided to the individual.
(6) Disclosure of private information under Subsection (4)(a)(ii) or Subsection (5), with the exception of Subsections (5)(a) and (f), shall be made only if:
(a) the division determines that the disclosure will not have a negative effect on the willingness of employers to report wage and employment information or on the willingness of individuals to file claims for unemployment benefits; and
(b) the agency enters into a written agreement with the division in accordance with rules made by the department.
(7) (a) The employees of a division of the department other than the Workforce Development and Information Division and the Unemployment Insurance Division or an agency receiving private information from the division under this chapter are subject to the same requirements of privacy and confidentiality and to the same penalties for misuse or improper disclosure of the information as employees of the division.
(b) Use of private information obtained from the department by a person, or for a purpose other than one authorized in Subsection (4) or (5) violates Subsection 76-8-1301(4).
Section 489. Section 35A-4-401 is amended to read:
35A-4-401
. Benefits -- Weekly benefit amount -- Computation of benefits -- Department to prescribe rules -- Notification of benefits -- Bonuses.(1) (a) Benefits are payable from the fund to an individual who is or becomes unemployed and eligible for benefits.
(b) All benefits shall be paid through the employment offices or other agencies designated by the division in accordance with rules the department may prescribe in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) (a) An individual's "weekly benefit amount" is an amount equal to 1/26th, disregarding any fraction of $1, of the individual's total wages for insured work paid during that quarter of the base period in which the total wages were highest.
(b) The weekly benefit amount may not exceed the amount determined as follows:
(i) With respect to an individual whose benefit year commences on or after January 1, 2001, 65% of the "insured average fiscal year weekly wage" during the preceding fiscal year, e.g., fiscal year 2000 for individuals establishing benefit years in 2001, disregarding any fraction of $1, constitutes the maximum "weekly benefit amount" payable.
(ii) With respect to an individual who files a claim for benefits on or after July 4, 2004, 62.5% of the insured average fiscal year weekly wage during the preceding fiscal year, disregarding any fraction of $1, constitutes the maximum weekly benefit amount payable.
(c) (i) Except as otherwise provided in Subsection (2)(c)(ii), the "weekly benefit amount" of an individual who is receiving, or who is eligible to receive, based upon the individual's previous employment, a pension, which includes a governmental, social security, or other pension, retirement or disability retirement pay, under a plan maintained or contributed to by a base-period employer is the "weekly benefit amount" which is computed under this section less 100% of the retirement benefits, that are attributable to a week, disregarding any fraction of $1.
(ii) With respect to an individual whose benefit year begins after July 1, 2004, and ends on or before July 1, 2011, the "weekly benefit amount" of that individual, who is receiving or who is eligible to receive Social Security benefits based upon the individual's previous employment, is the "weekly benefit amount" which is computed under this section less 50% of the individual's Social Security benefits that are attributable to the week, but not below zero.
(d) (i) (A) The weekly benefit amount and the potential benefits payable to an individual who, subsequent to the commencement of the individual's benefit year, becomes or is determined to be eligible to receive retirement benefits or increased retirement benefits, shall be recomputed effective with the first calendar week during the individual's benefit year with respect to which the individual is eligible to receive retirement benefits or increased retirement benefits.
(B) The new weekly benefit amount shall be determined under this Subsection (2).
(ii) As recomputed the total benefits potentially payable, commencing with the effective date of the recomputation, shall be equal to the recomputed weekly benefit amount times the quotient obtained by dividing the potential benefits unpaid prior to the recomputation by the initial weekly benefit amount, disregarding fractions.
(3) (a) An eligible individual who is unemployed in any week shall be paid with respect to that week a benefit in an amount equal to the individual's weekly benefit amount less that part of the individual's wage payable to the individual with respect to that week that is in excess of 30% of the individual's weekly benefit amount.
(b) The resulting benefit payable shall disregard any fraction of $1.
(c) For the purpose of this Subsection (3) "wages" does not include a grant paid to the individual as public assistance.
(4) (a) An otherwise eligible individual is entitled during a benefit year to a total amount of benefits determined by multiplying the individual's weekly benefit amount times the individual's potential duration.
(b) To determine an individual's potential duration, the individual's total wages for insured work paid during the base period is multiplied by 27%, disregarding any fraction of $1, and divided by the individual's weekly benefit amount, disregarding any fraction, but not less than ten nor more than 26.
(5) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may by rule prescribe:
(i) that the existence of unemployment, eligibility for benefits, and the amount of benefits payable shall be determined in the case of an otherwise eligible individual who, within a week or other period of unemployment, is separated from or secures work on a regular attachment basis for that portion of the week or other period of unemployment occurring before or after separation from or securing of work; and
(ii) in the case of an individual working on a regular attachment basis, eligibility for benefits and the amount of benefits payable for periods of unemployment longer than a week.
(b) The rules made shall be reasonably calculated to secure general results substantially similar to those provided by this chapter with respect to weeks of unemployment.
(6) The division shall, in all cases involving actual or potential disqualifying issues and prior to the payment of benefits to an eligible individual, notify the individual's most recent employer of the eligibility determination.
(7) Upon written request of an individual made under rules of the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, all remuneration for insured work paid to the individual during the individual's period in the form of a bonus or lump-sum payment shall, for benefit purposes, be apportioned to the calendar quarters in which the remuneration was earned.
Section 490. Section 35A-4-502 is amended to read:
35A-4-502
. Administration of Employment Security Act.(1) (a) The department shall administer this chapter through the division.
(b) The department may make, amend, or rescind any rules and special orders necessary for the administration of this chapter.
(c) The division may:
(i) employ persons;
(ii) make expenditures;
(iii) require reports;
(iv) make investigations;
(v) make audits of any or all funds provided for under this chapter when necessary; and
(vi) take any other action it considers necessary or suitable to that end.
(d) No later than the first day of October of each year, the department shall submit to the governor a report covering the administration and operation of this chapter during the preceding calendar year and shall make any recommendations for amendments to this chapter as the department considers proper.
(e) (i) The report required under Subsection (1)(d) shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against liability in future years to pay benefits in excess of the then current contributions, which reserve shall be set up by the division in accordance with accepted actuarial principles on the basis of statistics of employment, business activity, and other relevant factors for the longest possible period.
(ii) Whenever the department believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, it shall promptly inform the governor and the Legislature and make appropriate recommendations.
(2) (a) The department may make, amend, or rescind rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The director of the division or the director's designee may adopt, amend, or rescind special orders after appropriate notice and opportunity to be heard. Special orders become effective ten days after notification or mailing to the last-known address of the individuals or concerns affected thereby.
(3) The director of the division or the director's designee shall cause to be printed for distribution to the public:
(a) the text of this chapter;
(b) the department's rules pertaining to this chapter;
(c) the department's annual reports to the governor required by Subsection (1)(e); and
(d) any other material the director of the division or the director's designee considers relevant and suitable and shall furnish them to any person upon application.
(4) (a) The division may delegate to any person so appointed the power and authority it considers reasonable and proper for the effective administration of this chapter and may bond any person handling moneys or signing checks under this authority.
(b) The department may, when permissible under federal and state law, make arrangements to voluntarily elect coverage under the United States Civil Service Retirement System or a comparable private retirement plan with respect to past as well as future services of individuals employed under this chapter who:
(i) were hired prior to October 1, 1980; and
(ii) have been retained by the department without significant interruption in the employees' services for the department.
(c) An employee of the department who no longer may participate in a federal or other retirement system as a result of a change in status or appropriation under this chapter may purchase credit in a retirement system created under Title 49, Chapter 13, Public Employees' Noncontributory Retirement Act, with the employee’s assets from the federal or other retirement system in which the employee may no longer participate.
(5) There is created an Employment Advisory Council composed of the members listed in Subsections (5)(a) and (b).
(a) The executive director shall appoint:
(i) not less than five employer representatives chosen from individuals recommended by employers, employer associations, or employer groups;
(ii) not less than five employee representatives chosen from individuals recommended by employees, employee associations, or employee groups; and
(iii) five public representatives chosen at large.
(b) The executive director or the executive director's designee shall serve as a nonvoting member of the council.
(c) The employee representatives shall include both union and nonunion employees who fairly represent the percentage in the labor force of the state.
(d) Employers and employees shall consider nominating members of groups who historically may have been excluded from the council, such as women, minorities, and individuals with disabilities.
(e) (i) Except as required by Subsection (5)(e)(ii), as terms of current council members expire, the executive director shall appoint each new member or reappointed member to a four-year term.
(ii) Notwithstanding the requirements of Subsection (5)(e)(i), the executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of council members are staggered so that approximately half of the council is appointed every two years.
(f) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(g) The executive director shall terminate the term of any council member who ceases to be representative as designated by the council member's original appointment.
(h) The council shall advise the department and the Legislature in formulating policies and discussing problems related to the administration of this chapter including:
(i) reducing and preventing unemployment;
(ii) encouraging the adoption of practical methods of vocational training, retraining, and vocational guidance;
(iii) monitoring the implementation of the Wagner-Peyser Act;
(iv) promoting the creation and development of job opportunities and the reemployment of unemployed workers throughout the state in every possible way; and
(v) appraising the industrial potential of the state.
(i) The council shall assure impartiality and freedom from political influence in the solution of the problems listed in Subsection (5)(h).
(j) The executive director or the executive director's designee shall serve as chair of the council and call the necessary meetings.
(k) (i) A member shall receive no compensation or benefits for the member's services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A member may decline to receive per diem and expenses for the member's service.
(l) The department shall provide staff support to the council.
(6) In the discharge of the duties imposed by this chapter, the division director or the director's designee as designated by department rule, may in connection with a disputed matter or the administration of this chapter:
(a) administer oaths and affirmations;
(b) take depositions;
(c) certify to official acts; and
(d) issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records necessary as evidence.
(7) (a) In case of contumacy by or refusal to obey a subpoena issued to any person, any court of this state within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the director of the division or the director's designee shall have jurisdiction to issue to that person an order requiring the person to appear before the director or the director's designee to produce evidence, if so ordered, or give testimony regarding the matter under investigation or in question. Any failure to obey that order of the court may be punished by the court as contempt.
(b) Any person who, without just cause, fails or refuses to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in that person's power to do so, in obedience to a subpoena of the director or the director's designee shall be punished as provided in Subsection 35A-1-301(1)(b). Each day the violation continues is a separate offense.
(c) In the event a witness asserts a privilege against self-incrimination, testimony and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
(8) (a) In the administration of this chapter, the division shall cooperate with the United States Department of Labor to the fullest extent consistent with the provisions of this chapter and shall take action, through the adoption of appropriate rules by the department and administrative methods and standards, as necessary to secure to this state and its citizens all advantages available under the provisions of:
(i) the Social Security Act that relate to unemployment compensation;
(ii) the Federal Unemployment Tax Act; and
(iii) the Federal-State Extended Unemployment Compensation Act of 1970.
(b) In the administration of Section 35A-4-402, which is enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970, 26 U.S.C. 3304, the division shall take any action necessary to ensure that the section is interpreted and applied to meet the requirements of the federal act, as interpreted by the United States Department of Labor and to secure to this state the full reimbursement of the federal share of extended and regular benefits paid under this chapter that are reimbursable under the federal act.
Section 491. Section 35A-4-503 is amended to read:
35A-4-503
. Destruction or disposal of records or reports by division -- Procedure.The division may destroy or dispose of reports or records as have been properly recorded or summarized in the payment records of the division, or that are deemed no longer necessary in the proper administration of this chapter in accordance with the requirements of the state records committee pursuant to Section [63-2-502] 63G-2-502.
Section 492. Section 35A-5-102 is amended to read:
35A-5-102
. Federal grants for retraining.(1) By following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, the state, through the Employment Development Division may and is encouraged to apply for retraining, community assistance, or technology transfer funds available through:
(a) the United States Department of Defense;
(b) United States Department of Labor; or
(c) other appropriate federal offices or departments.
(2) In applying for federal funds, the state through its Employment Development Division or other appropriate office may inform the federal government of state matching or enhancement funds if those funds are available under Section 67-1-12.
Section 493. Section 35A-5-202 is amended to read:
35A-5-202
. Contracts with providers.(1) In compliance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, the department shall enter into a contract with one or more qualified providers to implement the workforce improvement plan created under Section 35A-5-201.
(2) A contract entered into under this section shall be:
(a) performance based; and
(b) structured so that the provider receives reimbursement based on:
(i) job development;
(ii) participant placement in jobs;
(iii) wages and benefits provided; and
(iv) participant retention in jobs over at least a 12-month period.
(3) If the department determines through the procurement process that there are no qualified providers to implement the workforce improvement plan, the department may implement the plan.
Section 494. Section 35A-7-106 is amended to read:
35A-7-106
. Penalties for failure to report.(1) An employer who fails to timely report the hiring or rehiring of an employee as required by this chapter is subject to a civil penalty of:
(a) $25 for each such failure; or
(b) $500 if the failure to report is intentional and is the result of an agreement between the employer and the employee to not supply the required information, or to supply false or incomplete information.
(2) The department may assess the penalty by following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. The department shall collect any unpaid civil penalty in the same manner as provided for other penalties under Subsections 35A-4-305(3) and (5).
Section 495. Section 35A-7-107 is amended to read:
35A-7-107
. Use and access to the registry records.(1) (a) The records of the registry shall be maintained as private records under Section [63-2-202] 63G-2-202.
(b) In addition to those persons granted access to private records under Sections [63-2-202] 63G-2-202 and [63-2-206] 63G-2-206, state or federal agencies may access data from the registry for the following purposes:
(i) the Office of Recovery Services for use related to locating, establishing, and enforcing child, medical, and spousal support obligations and other services;
(ii) state agencies which use financial information in determining eligibility for public assistance programs; and
(iii) federal agencies responsible for periodic matches of new hire registry information with federal data bases.
(2) Information that is received under this chapter shall be kept by the department for at least six months.
Section 496. Section 36-11-102 is amended to read:
36-11-102
. Definitions.As used in this chapter:
(1) "Aggregate daily expenditures" means:
(a) for a single lobbyist, principal, or government officer, the total of all expenditures made within a calendar day by the lobbyist, principal, or government officer for the benefit of an individual public official;
(b) when an expenditure is made by a member of a lobbyist group, the total of all expenditures made within a calendar day by every member of the lobbyist group for the benefit of an individual public official; or
(c) for a multiclient lobbyist, the total of all expenditures made by the multiclient lobbyist within a calendar day for the benefit of an individual public official, regardless of whether expenditures were attributed to different clients.
(2) "Executive action" means:
(a) nominations and appointments by the governor;
(b) the proposal, drafting, amendment, enactment, or defeat by a state agency of any rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(c) agency ratemaking proceedings.
(3) (a) "Expenditure" means any of the items listed in this Subsection (3)(a) when given to or for the benefit of a public official:
(i) a purchase, payment, distribution, loan, gift, advance, deposit, subscription, forbearance, services, or goods, unless consideration of equal or greater value is received; and
(ii) a contract, promise, or agreement, whether or not legally enforceable, to provide any of the items listed in Subsection (3)(a)(i).
(b) "Expenditure" does not mean:
(i) a commercially reasonable loan made in the ordinary course of business;
(ii) a campaign contribution reported in accordance with Title 20A, Chapter 11, Campaign and Financial Reporting Requirements;
(iii) printed informational material that is related to the performance of the recipient's official duties;
(iv) a devise or inheritance;
(v) any item listed in Subsection (3)(a) if given by a relative;
(vi) a modest item of food or refreshment such as a beverage or pastry offered other than as part of a meal, the value of which does not exceed $5;
(vii) a greeting card or other item of little intrinsic value that is intended solely for presentation; or
(viii) plaques, commendations, or awards presented in public and having a cash value not exceeding $50.
(4) (a) "Government officer" means:
(i) an individual elected to a position in state or local government, when acting within his official capacity; or
(ii) an individual appointed to or employed in a full-time position by state or local government, when acting within the scope of his employment.
(b) "Government officer" does not mean a member of the legislative branch of state government.
(5) "Immediate family" means:
(a) a spouse;
(b) a child residing in the household; or
(c) an individual claimed as a dependent for tax purposes.
(6) "Interested person" means an individual defined in Subsections (9)(b)(iii) and (viii).
(7) "Legislative action" means:
(a) bills, resolutions, amendments, nominations, and other matters pending or proposed in either house of the Legislature or its committees or requested by a legislator; and
(b) the action of the governor in approving or vetoing legislation.
(8) "Lobbying" means communicating with a public official for the purpose of influencing the passage, defeat, amendment, or postponement of legislative or executive action.
(9) (a) "Lobbyist" means:
(i) an individual who is employed by a principal; or
(ii) an individual who contracts for economic consideration, other than reimbursement for reasonable travel expenses, with a principal to lobby a public official.
(b) "Lobbyist" does not include:
(i) a government officer;
(ii) a member or employee of the legislative branch of government;
(iii) any person appearing at, or providing written comments to, a hearing conducted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act or [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(iv) any person participating on or appearing before an advisory or study task force, commission, board, or committee, constituted by the Legislature or any agency or department of state government, except legislative standing, appropriation, or interim committees;
(v) a representative of a political party;
(vi) an individual representing a bona fide church solely for the purpose of protecting the right to practice the religious doctrines of the church unless the individual or church makes an expenditure that confers a benefit on a public official;
(vii) a newspaper, television station or network, radio station or network, periodical of general circulation, or book publisher for the purpose of publishing news items, editorials, other comments, or paid advertisements that directly or indirectly urge legislative or executive action; or
(viii) an individual who appears on his own behalf before a committee of the Legislature or an executive branch agency solely for the purpose of testifying in support of or in opposition to legislative or executive action.
(10) "Lobbyist group" means two or more lobbyists, principals, government officers, and any combination of lobbyists, principals, and officers who each contribute a portion of an expenditure made to benefit a public official or member of the public official's immediate family.
(11) "Multiclient lobbyist" means a single lobbyist, principal, or government officer who represents two or more clients and divides the aggregate daily expenditure made to benefit a public official or member of the public official's immediate family between two or more of those clients.
(12) "Person" includes individuals, bodies politic and corporate, partnerships, associations, and companies.
(13) "Principal" means a person that employs an individual to perform lobbying either as an employee or as an independent contractor.
(14) "Public official" means:
(a) (i) a member of the Legislature;
(ii) an individual elected to a position in the executive branch; or
(iii) an individual appointed to or employed in the executive or legislative branch if that individual:
(A) occupies a policymaking position or makes purchasing or contracting decisions;
(B) drafts legislation or makes rules;
(C) determines rates or fees; or
(D) makes adjudicative decisions; or
(b) an immediate family member of a person described in Subsection (14)(a).
(15) "Public official type" means a notation to identify whether a public official is:
(a) (i) a member of the Legislature;
(ii) an individual elected to a position in the executive branch;
(iii) an individual appointed to or employed in a position in the legislative branch who meets the definition of public official under Subsection (14)(a)(iii); or
(iv) an individual appointed to or employed in a position in the executive branch who meets the definition of public official under Subsection (14)(a)(iii); or
(b) an immediate family member of a person described in Subsection (14)(b).
(16) "Quarterly reporting period" means the three-month period covered by each financial report required under Subsection 36-11-201(2)(a).
(17) "Related person" means any person, or agent or employee of a person, who knowingly and intentionally assists a lobbyist, principal, or government officer in lobbying.
(18) "Relative" means a spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, first cousin, or spouse of any of these individuals.
(19) (a) "Tangible personal property" means an item having a description that is consistent with the meaning of tangible personal property found in the Utah Constitution, Article XIII.
(b) "Tangible personal property" does not include the admission price or cost for events, meals, recreation, outings, or functions.
Section 497. Section 36-11-103 is amended to read:
36-11-103
. Licensing requirements.(1) (a) Before engaging in any lobbying, a lobbyist shall obtain a license from the lieutenant governor by completing the form required by this section.
(b) The lieutenant governor shall issue licenses to qualified lobbyists.
(c) The lieutenant governor shall prepare a Lobbyist License Application Form that includes:
(i) a place for the lobbyist's name and business address;
(ii) a place for the name and business address of each principal for whom the lobbyist works or is hired as an independent contractor;
(iii) a place for the name and address of the person who paid or will pay the lobbyist's registration fee, if the fee is not paid by the lobbyist;
(iv) a place for the lobbyist to disclose any elected or appointed position that the lobbyist holds in state or local government, if any;
(v) a place for the lobbyist to disclose the types of expenditures for which the lobbyist will be reimbursed; and
(vi) a certification to be signed by the lobbyist that certifies that the information provided in the form is true, accurate, and complete to the best of the lobbyist's knowledge and belief.
(2) Each lobbyist who obtains a license under this section shall update the licensure information when the lobbyist accepts employment for lobbying by a new client.
(3) (a) Except as provided in Subsection (4), the lieutenant governor shall grant a lobbying license to an applicant who:
(i) files an application with the lieutenant governor that contains the information required by this section; and
(ii) pays a $25 filing fee.
(b) A license entitles a person to serve as a lobbyist on behalf of one or more principals and expires on December 31 of each even-numbered year.
(4) (a) The lieutenant governor may disapprove an application for a lobbying license:
(i) if the applicant has been convicted of violating Section 76-8-103, 76-8-107, 76-8-108, or 76-8-303 within five years before the date of the lobbying license application;
(ii) if the applicant has been convicted of violating Section 76-8-104 or 76-8-304 within one year before the date of the lobbying license application;
(iii) for the term of any suspension imposed under Section 36-11-401; or
(iv) if, within one year before the date of the lobbying license application, the applicant has been found to have willingly and knowingly:
(A) violated Section 36-11-103, 36-11-201, 36-11-301, 36-11-302, 36-11-303, 36-11-304, 36-11-305, or 36-11-403; or
(B) filed a document required by this chapter that the lobbyist knew contained materially false information or omitted material information.
(b) An applicant may appeal the disapproval in accordance with the procedures established by the lieutenant governor under this chapter and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(5) The lieutenant governor shall deposit license fees in the General Fund.
(6) A principal need not obtain a license under this section, but if the principal makes expenditures to benefit a public official without using a lobbyist as an agent to confer those benefits, the principal shall disclose those expenditures as required by Sections 36-11-201.
(7) Government officers need not obtain a license under this section, but shall disclose any expenditures made to benefit public officials as required by Sections 36-11-201.
(8) Surrender, cancellation, or expiration of a lobbyist license does not absolve the lobbyist of the duty to file the financial reports if the lobbyist is otherwise required to file the reports by Section 36-11-201.
Section 498. Section 36-11-404 is amended to read:
36-11-404
. Lieutenant governor's procedures.(1) The lieutenant governor shall make rules that provide:
(a) for the appointment of an administrative law judge to adjudicate alleged violations of this section and to impose penalties under this section;
(b) procedures for license applications, disapprovals, suspensions, revocations, and reinstatements that comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) The lieutenant governor shall develop forms needed for the registration and disclosure provisions of this chapter.
Section 499. Section 36-12-13 is amended to read:
36-12-13
. Office of Legislative Fiscal Analyst established -- Powers, functions, and duties -- Qualifications.(1) There is established an Office of Legislative Fiscal Analyst as a permanent staff office for the Legislature.
(2) The powers, functions, and duties of the Office of Legislative Fiscal Analyst under the supervision of the fiscal analyst are:
(a) to analyze in detail the executive budget before the convening of each legislative session and make recommendations to the Legislature on each item or program appearing in the executive budget;
(b) to prepare cost estimates on all proposed bills that anticipate state government expenditures;
(c) to prepare cost estimates on all proposed bills that anticipate expenditures by county, municipal, local district, or special service district governments;
(d) to prepare cost estimates on all proposed bills that anticipate direct expenditures by any Utah resident, and the cost to the overall impacted Utah resident population;
(e) to prepare a review and analysis of revenue estimates for existing and proposed revenue acts;
(f) to report instances in which the administration may be failing to carry out the expressed intent of the Legislature;
(g) to direct attention to each new proposed service contained in the governor's budget;
(h) to direct attention to each budget item previously denied by the Legislature;
(i) to propose and analyze statutory changes for more effective operational economies or more effective administration;
(j) to prepare, after each session of the Legislature, a summary showing the effect of the final legislative program on the financial condition of the state;
(k) to conduct organizational and management improvement studies;
(l) to prepare and deliver upon request of any interim committee or the Legislative Management Committee, reports on the finances of the state and on anticipated or proposed requests for appropriations;
(m) to recommend areas for research studies by the executive department or the interim committees;
(n) to assist in prescribing the format for the presentation of the governor's budget to facilitate program and in-depth review of state expenditures in accordance with Sections [63-38-14] 63J-1-501 and [63-38-15] 63J-1-502;
(o) to recommend to the appropriations subcommittees the agencies or programs for which an in-depth budget review should be requested, and to recommend to the Legislative Management Committee the priority in which the request should be made;
(p) to appoint and develop a professional staff within budget limitations; and
(q) to prepare and submit the annual budget request for the office.
(3) (a) In accordance with Subsection (3)(b) and subject to Subsection (3)(c), the Office of Legislative Fiscal Analyst shall submit an annual report to the Executive Appropriations Committee of the Legislature, at the committee's November meeting, on funds expended by the state during the preceding state fiscal year to provide financial assistance or services to low-income individuals and families.
(b) The report described in Subsection (3)(a) shall:
(i) separate the funds expended into categories by program, service, or population served;
(ii) indicate whether the expended funds described in Subsection (3)(a) are state or federal funds; and
(iii) include a total of all state funds and federal funds expended by the state in the preceding fiscal year to provide financial assistance or services to low-income individuals and families.
(c) If the Executive Appropriations Committee of the Legislature does not meet in November, the Office of Legislative Fiscal Analyst shall submit the report described in Subsection (3)(a) at the committee's next meeting.
(4) The legislative fiscal analyst shall have a master's degree in public administration, political science, economics, accounting, or the equivalent in academic or practical experience.
(5) In carrying out the duties provided for in this section, the legislative fiscal analyst may obtain access to all records, documents, and reports necessary to the scope of his duties according to the procedures contained in Title 36, Chapter 14, Legislative Subpoena Powers.
Section 500. Section 36-12-15 is amended to read:
36-12-15
. Office of Legislative Auditor General established -- Qualifications -- Powers, functions, and duties.(1) There is created an Office of Legislative Auditor General as a permanent staff office for the Legislature.
(2) The legislative auditor general shall be a licensed certified public accountant or certified internal auditor with at least five years experience in the auditing or public accounting profession, or the equivalent, prior to appointment.
(3) The legislative auditor general shall appoint and develop a professional staff within budget limitations.
(4) (a) The Office of the Legislative Auditor General shall exercise the constitutional authority provided in Article VI, Sec. 33, Utah Constitution.
(b) Under the direction of the legislative auditor general, the office shall:
(i) conduct comprehensive and special purpose audits, examinations, and reviews of any entity that receives public funds;
(ii) prepare and submit a written report on each audit, examination, or review to the Legislative Management Committee, the audit subcommittee, and to all members of the Legislature within 75 days after the audit or examination is completed; and
(iii) as provided in Section 36-24-101:
(A) monitor all new programs and agencies created during each Annual General Session or Special Session of the Legislature;
(B) provide each new program and agency created with a list of best practices in setting up their program or agency, including:
(I) policies;
(II) performance measures; and
(III) data collection;
(C) send each new program and agency:
(I) within one year after its creation, a survey instrument requesting a self evaluation that includes policies, performance measures, and data collection; and
(II) within two years after its creation, a survey instrument requesting a self evaluation that includes policies, performance measures, and data collection; and
(D) (I) using the new program or agency's response to the self evaluation survey instruments, recommend to the legislative audit subcommittee that the office conduct an audit of those new programs and agencies created on which questions have arisen as a result of the response to the survey instrument and provide a limited scope audit report on those new programs or agencies on which it receives direction to audit to the legislative interim committee and to the legislative appropriations subcommittee with oversight responsibility for that program or agency on or before the November interim meeting; and
(II) include within this limited scope audit report a recommendation as to whether the program or agency is fulfilling its statutory guidelines and directives.
(5) The audit, examination, or review of any entity that receives public funds may include a determination of any or all of the following:
(a) the honesty and integrity of all its fiscal affairs;
(b) the accuracy and reliability of its financial statements and reports;
(c) whether or not its financial controls are adequate and effective to properly record and safeguard its acquisition, custody, use, and accounting of public funds;
(d) whether or not its administrators have faithfully adhered to legislative intent;
(e) whether or not its operations have been conducted in an efficient, effective, and cost efficient manner;
(f) whether or not its programs have been effective in accomplishing intended objectives; and
(g) whether or not its management control and information systems are adequate and effective.
(6) The Office of Legislative Auditor General may:
(a) (i) notwithstanding any other provision of law, obtain access to all records, documents, and reports of any entity that receives public funds that are necessary to the scope of its duties; and
(ii) if necessary, issue a subpoena to obtain access as provided in Subsection (6)(a)(i) using the procedures contained in Title 36, Chapter 14, Legislative Subpoena Powers;
(b) establish policies, procedures, methods, and standards of audit work for the office and staff;
(c) prepare and submit each audit report without interference from any source relative to the content of the report, the conclusions reached in the report, or the manner of disclosing the results of his findings; and
(d) prepare and submit the annual budget request for the office.
(7) To preserve the professional integrity and independence of the office:
(a) no legislator or public official may urge the appointment of any person to the office; and
(b) the legislative auditor general may not be appointed to serve on any board, authority, commission, or other agency of the state during his term as legislative auditor general.
(8) The following records in the custody or control of the legislative auditor general shall be protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act:
(a) Records that would disclose information relating to allegations of personal misconduct, gross mismanagement, or illegal activity of a past or present governmental employee if the information or allegation cannot be corroborated by the legislative auditor general through other documents or evidence, and the records relating to the allegation are not relied upon by the legislative auditor general in preparing a final audit report.
(b) Records and audit workpapers to the extent they would disclose the identity of a person who during the course of a legislative audit, communicated the existence of any waste of public funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation adopted under the laws of this state, a political subdivision of the state, or any recognized entity of the United States, if the information was disclosed on the condition that the identity of the person be protected.
(c) Prior to the time that an audit is completed and the final audit report is released, records or drafts circulated to a person who is not an employee or head of a governmental entity for their response or information.
(d) Records that would disclose an outline or part of any audit survey plans or audit program.
(e) Requests for audits, if disclosure would risk circumvention of an audit.
(f) The provisions of Subsections (8)(a), (b), and (c) do not prohibit the disclosure of records or information that relate to a violation of the law by a governmental entity or employee to a government prosecutor or peace officer.
(g) The provisions of this section do not limit the authority otherwise given to the legislative auditor general to classify a document as public, private, controlled, or protected under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(9) The legislative auditor general shall:
(a) be available to the Legislature and to its committees for consultation on matters relevant to areas of his professional competence and shall perform, or otherwise assist in the performance of, a health insurance provision review as provided in Section 36-12-5;
(b) conduct special audits as requested by the Legislative Management Committee;
(c) report immediately in writing to the Legislative Management Committee through its audit subcommittee any apparent violation of penal statutes disclosed by the audit of a state agency and furnish to the Legislative Management Committee all information relative to the apparent violation;
(d) report immediately in writing to the Legislative Management Committee through its audit subcommittee any apparent instances of malfeasance or nonfeasance by a state officer or employee disclosed by the audit of a state agency; and
(e) make any recommendations to the Legislative Management Committee through its audit subcommittee with respect to the alteration or improvement of the accounting system used by any entity that receives public funds.
(10) (a) Prior to each annual general session, the legislative auditor general shall prepare a summary of the audits conducted and of actions taken based upon them during the preceding year.
(b) This report shall also set forth any items and recommendations that are important for consideration in the forthcoming session, together with a brief statement or rationale for each item or recommendation.
(c) The legislative auditor general shall deliver the report to the Legislature and to the appropriate committees of the Legislature.
(11) (a) No person or entity may:
(i) interfere with a legislative audit, examination, or review of any entity conducted by the office; or
(ii) interfere with the office relative to the content of the report, the conclusions reached in the report, or the manner of disclosing the results and findings of the office.
(b) Any person or entity that violates the provisions of this Subsection (11) is guilty of a class B misdemeanor.
Section 501. Section 36-23-106 is amended to read:
36-23-106
. Duties -- Reporting.(1) The committee shall:
(a) conduct a sunrise review in accordance with Section 36-23-107 for all applications submitted in accordance with Section 36-23-105;
(b) conduct a sunset review for an occupational or professional license classification that is referred to the committee by any other legislative committee by applying:
(i) the criteria in Section 36-23-107;
(ii) the criteria in [Title 63, Chapter 55] Title 63I, Chapter 1, Legislative Oversight and Sunset Act; and
(iii) any other appropriate criteria; and
(c) submit a written report by no later than December 31 of each calendar year to:
(i) the speaker of the House of Representatives;
(ii) the president of the Senate;
(iii) the chair of the House Rules Committee;
(iv) the chair of the Senate Rules Committee; and
(v) the chairs of the Commerce and Revenue Appropriations Subcommittee.
(2) The written report required by Subsection (1)(c) shall include:
(a) all findings and recommendations made by the committee under Subsection (1) or (3) in that calendar year; and
(b) a summary report for each sunrise review conducted by the committee stating:
(i) whether the sunrise review was conducted under Subsection (1) or (3);
(ii) whether or not the sunrise review included a review of specific proposed statutory language;
(iii) any action taken by the committee as a result of the sunrise review; and
(iv) the number of legislative members that voted in favor of the action described in Subsection (2)(b)(iii).
(3) The committee may:
(a) conduct a sunrise review of any proposal to newly regulate an occupation or profession;
(b) conduct any other review referred to it by the Legislature, the Legislative Management Committee, or other legislative committee; or
(c) conduct any other study related to regulation of an occupation or profession under Title 58, Occupations and Professions.
Section 502. Section 38-1-11 is amended to read:
38-1-11
. Enforcement -- Time for -- Lis pendens -- Action for debt not affected -- Instructions and form affidavit and motion.(1) As used in this section:
(a) "Owner" is as defined in Section 38-11-102.
(b) "Residence" is as defined in Section 38-11-102.
(2) A lien claimant shall file an action to enforce the lien filed under this chapter within 180 days from the day on which the lien claimant filed a notice of claim under Section 38-1-7.
(3) (a) Within the time period provided for filing in Subsection (2) the lien claimant shall file for record with the county recorder of each county in which the lien is recorded a notice of the pendency of the action, in the manner provided in actions affecting the title or right to possession of real property, or the lien shall be void, except as to persons who have been made parties to the action and persons having actual knowledge of the commencement of the action.
(b) The burden of proof is upon the lien claimant and those claiming under the lien claimant to show actual knowledge under Subsection (3)(a).
(4) (a) A lien filed under this chapter is automatically and immediately void if an action to enforce the lien is not filed within the time required by this section.
(b) Notwithstanding Section 78-12-40, a court has no subject matter jurisdiction to adjudicate a lien that becomes void under Subsection (4)(a).
(5) This section may not be interpreted to impair or affect the right of any person to whom a debt may be due for any work done or materials furnished to maintain a personal action to recover the debt.
(6) (a) If a lien claimant files an action to enforce a lien filed under this chapter involving a residence, the lien claimant shall include with the service of the complaint on the owner of the residence:
(i) instructions to the owner of the residence relating to the owner's rights under Title 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act; and
(ii) a form to enable the owner of the residence to specify the grounds upon which the owner may exercise available rights under Title 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act.
(b) The instructions and form required by Subsection (6)(a) shall meet the requirements established by rule by the Division of Occupational and Professional Licensing in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) If a lien claimant fails to provide to the owner of the residence the instructions and form required by Subsection (6)(a), the lien claimant shall be barred from maintaining or enforcing the lien upon the residence.
(d) Judicial determination of the rights and liabilities of the owner of the residence under this chapter and Title 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act, and Title 14, Chapter 2, Private Contracts, shall be stayed until after the owner is given a reasonable period of time to establish compliance with Subsections 38-11-204(4)(a) and (4)(b) through an informal proceeding, as set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, commenced within 30 days of the owner being served summons in the foreclosure action, at the Division of Occupational and Professional Licensing and obtain a certificate of compliance or denial of certificate of compliance, as defined in Section 38-11-102.
(e) An owner applying for a certificate of compliance under Subsection (6)(d) shall send by certified mail to all lien claimants:
(i) a copy of the application for a certificate of compliance; and
(ii) all materials filed in connection with the application.
(f) The Division of Occupational and Professional Licensing shall notify all lien claimants listed in an owner's application for a certificate of compliance under Subsection (6)(d) of the issuance or denial of a certificate of compliance.
(7) The written notice requirement applies to liens filed on or after July 1, 2004.
Section 503. Section 38-1-27 is amended to read:
38-1-27
. State Construction Registry -- Form and contents of notice of commencement, preliminary notice, and notice of completion.(1) As used in this section and Sections 38-1-30 through 38-1-37:
(a) "Alternate filing" means a legible and complete filing made in a manner established by the division under Subsection (2)(e) other than an electronic filing.
(b) "Cancel" means to indicate that a filing is no longer given effect.
(c) "Construction project," "project," or "improvement" means all labor, equipment, and materials provided:
(i) under an original contract; or
(ii) by, or under contracts with, an owner-builder.
(d) "Database" means the State Construction Registry created in this section.
(e) (i) "Designated agent" means the third party the Division of Occupational and Professional Licensing contracts with to create and maintain the State Construction Registry.
(ii) The designated agent is not an agency, instrumentality, or a political subdivision of the state.
(f) "Division" means the Division of Occupational and Professional Licensing.
(g) "Interested person" means a person who may be affected by a construction project.
(h) "Program" means the State Construction Registry Program created in this section.
(2) Subject to receiving adequate funding through a legislative appropriation and contracting with an approved third party vendor who meets the requirements of Sections 38-1-30 through 38-1-37, there is created the State Construction Registry Program that shall:
(a) (i) assist in protecting public health, safety, and welfare; and
(ii) promote a fair working environment;
(b) be overseen by the division with the assistance of the designated agent;
(c) provide a central repository for notices of commencement, preliminary notices, and notices of completion filed in connection with all privately owned construction projects as well as all state and local government owned construction projects throughout Utah;
(d) be accessible for filing and review by way of the program Internet website of:
(i) notices of commencement;
(ii) preliminary notices; and
(iii) notices of completion;
(e) accommodate:
(i) electronic filing of the notices described in Subsection (2)(d); and
(ii) alternate filing of the notices described in Subsection (2)(d) by U.S. mail, telefax, or any other alternate method as provided by rule made by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(f) (i) provide electronic notification for up to three e-mail addresses for each interested person or company who requests notice from the construction notice registry; and
(ii) provide alternate means of notification for a person who makes an alternate filing, including U.S. mail, telefax, or any other method as prescribed by rule made by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(g) provide hard-copy printing of electronic receipts for an individual filing evidencing the date and time of the individual filing and the content of the individual filing.
(3) (a) The designated agent shall provide notice of all other filings for a project to any person who files a notice of commencement, preliminary notice, or notice of completion for that project, unless the person:
(i) requests that the person not receive notice of other filings; or
(ii) does not provide the designated agent with the person's contact information in a manner that adequately informs the designated agent.
(b) An interested person may request notice of filings related to a project.
(c) The database shall be indexed by:
(i) owner name;
(ii) original contractor name;
(iii) subdivision, development, or other project name, if any;
(iv) project address;
(v) lot or parcel number;
(vi) unique project number assigned by the designated agent; and
(vii) any other identifier that the division considers reasonably appropriate in collaboration with the designated agent.
(4) (a) In accordance with the process required by Section [63-38-3.2] 63J-1-303, the division shall establish the fees for:
(i) a notice of commencement;
(ii) a preliminary notice;
(iii) a notice of completion;
(iv) a request for notice;
(v) providing a required notice by an alternate method of delivery;
(vi) a duplicate receipt of a filing; and
(vii) account setup for a person who wishes to be billed periodically for filings with the database.
(b) The fees allowed under Subsection (4)(a) may not exceed the amount reasonably necessary to create and maintain the database.
(c) The fees established by the division may vary by method of filing if one form of filing is more costly to process than another form of filing.
(d) The division may provide by contract that the designated agent may retain all fees collected by the designated agent except that the designated agent shall remit to the division the cost of the division's oversight under Subsection (2)(b).
(5) (a) The database is classified as a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, unless otherwise classified by the division.
(b) A request for information submitted to the designated agent is not subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(c) Information contained in a public record contained in the database shall be requested from the designated agent.
(d) The designated agent may charge a commercially reasonable fee allowed by the designated agent's contract with the division for providing information under Subsection (5)(c).
(e) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, if information is available in a public record contained in the database, a person may not request the information from the division.
(f) (i) A person may request information that is not a public record contained in the database from the division in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(ii) The division shall inform the designated agent of how to direct inquiries made to the designated agent for information that is not a public record contained in the database.
(6) The following are not an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act:
(a) the filing of a notice permitted by this chapter;
(b) the rejection of a filing permitted by this chapter; or
(c) other action by the designated agent in connection with a filing of any notice permitted by this chapter.
(7) The division and the designated agent need not determine the timeliness of any notice before filing the notice in the database.
(8) (a) A person who is delinquent on the payment of a fee established under Subsection (4) may not file a notice with the database.
(b) A determination that a person is delinquent on the payment of a fee for filing established under Subsection (4) shall be made in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(c) Any order issued in a proceeding described in Subsection (8)(b) may prescribe the method of that person's payment of fees for filing notices with the database after issuance of the order.
(9) If a notice is filed by a third party on behalf of another, the notice is considered to be filed by the person on whose behalf the notice is filed.
(10) A person filing a notice of commencement, preliminary notice, or notice of completion is responsible for verifying the accuracy of information entered into the database, whether the person files electronically or by alternate or third party filing.
Section 504. Section 38-1-28 is amended to read:
38-1-28
. Notice of release of lien and substitution of alternate security.(1) The owner of any interest in real property that is subject to a mechanics' lien recorded under this chapter, or any original contractor or subcontractor affected by the lien, who disputes the correctness or validity of the lien may record a notice of release of lien and substitution of alternate security:
(a) that meets the requirements of Subsection (2);
(b) in the office of the county recorder where the lien was recorded; and
(c) at any time before the expiration of 90 days after the day on which the person filing a notice of release of lien and substitution of alternate security is served with a summons and lien foreclosure complaint.
(2) A notice of release of lien and substitution of alternate security recorded under Subsection (1) shall:
(a) meet the requirements for the recording of documents in Title 57, Chapter 3, Recording of Documents;
(b) reference the lien sought to be released, including an entry number, book number, and page number; and
(c) have as an attachment a surety bond or evidence of a cash deposit that:
(i) (A) if a surety bond, is executed by a surety company that is treasury listed, A-rated by AM Best Company, and authorized to issue surety bonds in this state; or
(B) if evidence of a cash deposit, meets the requirements established by rule by the Department of Commerce in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(ii) is in an amount equal to:
(A) 150% of the amount claimed by the lien claimant on a notice of lien or determined under Subsection (7), if the lien claim is for $25,000 or more;
(B) 175% of the amount claimed by the lien claimant on a notice of lien or determined under Subsection (7), if the lien claim is for at least $15,000 but less than $25,000; or
(C) 200% of the amount claimed by the lien claimant on a notice of lien or determined under Subsection (7), if the lien claim is for less than $15,000;
(iii) is made payable to the lien claimant;
(iv) is conditioned for the payment of:
(A) the judgment that would have been rendered, or has been rendered against the property in the action to enforce the lien; and
(B) any costs and attorneys' fees awarded by the court; and
(v) has as principal:
(A) the owner of the interest in the real property; or
(B) the original contractor or subcontractor affected by the lien.
(3) (a) Upon the recording of the notice of release of lien and substitution of alternate security under Subsection (1), the real property described in the notice shall be released from the mechanics' lien to which the notice applies.
(b) A recorded notice of release of lien and substitution of alternate security is effective as to any amendment to the lien being released if the bond amount remains enough to satisfy the requirements of Subsection (2)(c)(ii).
(4) (a) Upon the recording of a notice of release of lien and substitution of alternate security under Subsection (1), the person recording the notice shall serve a copy of the notice, together with any attachments, within 30 days upon the lien claimant.
(b) If a suit is pending to foreclose the lien at the time the notice is served upon the lien claimant under Subsection (4)(a), the lien claimant shall, within 90 days from the receipt of the notice, institute proceedings to add the alternate security as a party to the lien foreclosure suit.
(5) The alternate security attached to a notice of release of lien shall be discharged and released upon:
(a) the failure of the lien claimant to commence a suit against the alternate security within the same time as an action to enforce the lien under Section 38-1-11;
(b) the failure of the lien claimant to institute proceedings to add the alternate security as a party to a lien foreclosure suit within the time required by Subsection (4)(b);
(c) the dismissal with prejudice of the lien foreclosure suit or suit against the alternate security as to the lien claimant; or
(d) the entry of judgment against the lien claimant in:
(i) a lien foreclosure suit; or
(ii) suit against the alternate security.
(6) If a copy of the notice of release of lien and substitution of alternate security is not served upon the lien claimant as provided in Subsection (4)(a), the lien claimant shall have six months after the discovery of the notice to commence an action against the alternate security, except that no action may be commenced against the alternate security after two years from the date the notice was recorded.
(7) (a) The owner of any interest in real property that is subject to a mechanics' lien recorded under this chapter or an original contractor or subcontractor affected by a mechanics' lien recorded under this chapter who disputes the amount claimed in a notice of lien may petition the district court in the county in which the notice of lien is recorded for a summary determination of the correct amount of a lien claim for the sole purpose of providing alternate security.
(b) A petition under this Subsection (7) shall:
(i) state with specificity the factual and legal bases for disputing the amount of the lien claim; and
(ii) be supported by a sworn affidavit and any other evidence supporting the petition.
(c) A petitioner under Subsection (7)(a) shall, under Utah Rules of Civil Procedure, Rule 4, serve on the lien claimant:
(i) a copy of the petition; and
(ii) a notice of hearing if a hearing is scheduled.
(d) If a court finds a petition under Subsection (7)(a) insufficient, the court may dismiss the petition without a hearing.
(e) If a court finds a petition under Subsection (7)(a) sufficient, the court shall schedule a hearing within ten days to determine the correct amount of the lien claim for the sole purpose of providing alternate security.
(f) A lien claimant may:
(i) attend a hearing held under this Subsection (7); and
(ii) contest the petition.
(g) A determination under this section is limited to a determination of the amount of the lien claim for the sole purpose of providing alternate security and does not conclusively establish:
(i) the amount to which the lien claimant is entitled;
(ii) the validity of the lien claim; or
(iii) any person's right to any other legal remedy.
(h) If a court, in a proceeding under this Subsection (7), determines that the amount claimed in a notice of claim is excessive, the court shall set the amount of the lien claim for the sole purpose of providing alternate security.
(i) In an order under Subsection (7)(h), the court shall include a legal description of the property.
(j) A petitioner under this Subsection (7) may record a certified copy of any order issued under this Subsection (7) in the county in which the lien is recorded.
(k) Attorneys' fees may not be awarded for a proceeding under this Subsection (7), but shall be considered in any award of attorneys' fees under any other provision of this chapter.
Section 505. Section 38-1-30 is amended to read:
38-1-30
. Third-party contract -- Designated agent.(1) The division shall contract in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, with a third party to establish and maintain the database for the purposes established under this section, Section 38-1-27, and Sections 38-1-31 through 38-1-37.
(2) (a) The third party under contract under this section is the division's designated agent, and shall develop and maintain a database from the information provided by:
(i) local government entities issuing building permits;
(ii) original contractors;
(iii) subcontractors; and
(iv) other interested persons.
(b) The database shall accommodate filings by third parties on behalf of clients.
(c) The division and the designated agent shall design, develop, and test the database for full implementation on May 1, 2005.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules and develop procedures for:
(a) the division to oversee and enforce this section, Section 38-1-27, and Sections 38-1-31 through 38-1-37;
(b) the designated agent to administer this section, Section 38-1-27, and Sections 38-1-31 through 38-1-37; and
(c) the form of submission of an alternate filing, which may include procedures for rejecting an illegible or incomplete filing.
(4) (a) The designated agent shall archive computer data files at least semiannually for auditing purposes.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules to allow the designated agent to periodically archive projects from the database.
(c) A project shall be archived no earlier than:
(i) one year after the day on which a notice of completion is filed for a project;
(ii) if no notice of completion is filed, two years after the last filing activity for a project; or
(iii) one year after the day on which a filing is cancelled under Subsection 38-1-32(3)(c) or 38-1-33(2)(c).
(d) The division may audit the designated agent's administration of the database as often as the division considers necessary.
(5) The designated agent shall carry errors and omissions insurance in the amounts established by rule made by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(6) (a) The designated agent shall make reasonable efforts to assure the accurate entry into the database of information provided in alternate filings.
(b) The designated agent shall meet or exceed standards established by the division for the accuracy of data entry for alternate filings.
(7) The designated agent is not liable for the correctness of the information contained in an alternate filing it enters into the database.
Section 506. Section 38-1-31 is amended to read:
38-1-31
. Building permit -- Construction -- Notice registry -- Notice of commencement of work.(1) (a) (i) (A) For a construction project where a building permit is issued to an original contractor or owner-builder, within 15 days after the issuance of the building permit:
(I) the local government entity issuing that building permit shall input the building permit application and transmit the building permit information to the database electronically by way of the Internet or computer modem or by any other means; and
(II) the original contractor or owner-builder may file a notice of commencement based on the building permit issued by the local government entity.
(B) The information submitted under Subsection (1)(a)(i)(A) forms the basis of a notice of commencement.
(ii) The person to whom a building permit, filed under Subsection (1)(a)(i), is issued is responsible for the accuracy of the information in the building permit.
(iii) For the purposes of classifying a record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, building permit information transmitted from a local governmental entity to the database shall be classified in the database by the division notwithstanding the local governmental entity's classification of the building permit information.
(b) Within 15 days after commencement of physical construction work at the project site, the original contractor or owner-builder may file a notice of commencement with the database whether or not a building permit is issued or a notice of commencement is filed under Subsection (1)(a).
(c) An owner of construction or an original contractor may file a notice of commencement with the designated agent within the time prescribed by Subsections (1)(a) and (b).
(d) (i) If duplicate notices of commencement are filed, they shall be combined into one notice for each project and any notices filed relate back to the date of the earliest-filed notice of commencement for the project.
(ii) A duplicate notice of commencement that is untimely filed relates back under Subsection (1)(d)(i) if the earlier filed notice of commencement is timely filed.
(iii) Duplicate notices of commencement shall be automatically linked by the designated agent.
(e) The designated agent shall assign each construction project a unique project number that:
(i) identifies each construction project; and
(ii) can be associated with all notices of commencement, preliminary notices, and notices of completion.
(f) A notice of commencement is effective only as to any labor, service, equipment, and material furnished to the construction project that is furnished subsequent to the filing of the notice of commencement.
(2) (a) A notice of commencement shall include the following:
(i) the name and address of the owner of the project;
(ii) the name and address of the:
(A) original contractor; and
(B) surety providing any payment bond for the project, or if none exists, a statement that a payment bond was not required for the work being performed; and
(iii) (A) the project address if the project can be reasonably identified by an address; or
(B) the name and general description of the location of the project if the project cannot be reasonably identified by an address.
(b) A notice of commencement may include:
(i) a general description of the project; or
(ii) the lot or parcel number, and any subdivision, development, or other project name, of the real property upon which the project is to be constructed if the project is subject to mechanics' liens.
(c) A notice of commencement need not include all of the items listed in Subsection (2)(a) if:
(i) a building permit is issued for the project; and
(ii) all items listed in Subsection (2)(a) that are available on the building permit are included in the notice of commencement.
(3) If a notice of commencement for a construction project is not filed within the time set forth in Subsections(1)(a) and (b), the following do not apply:
(a) Section 38-1-32; and
(b) Section 38-1-33.
(4) (a) Unless a person indicates to the division or designated agent that the person does not wish to receive a notice under this section, electronic notice of the filing of a notice of commencement or alternate notice as prescribed in Subsection (1), shall be provided to:
(i) all persons who have filed notices of commencement for the project; and
(ii) all interested persons who have requested notices concerning the project.
(b) (i) A person to whom notice is required under Subsection (4)(a) is responsible for:
(A) providing an e-mail address, mailing address, or telefax number to which a notice required by Subsection (4)(a) is to be sent; and
(B) the accuracy of any e-mail address, mailing address, or telefax number to which notice is to be sent.
(ii) The designated agent fulfills the notice requirement of Subsection (4)(a) when it sends the notice to the e-mail address, mailing address, or telefax number provided to the designated agent whether or not the notice is actually received.
(5) (a) The burden is upon any person seeking to enforce a notice of commencement to verify the accuracy of information in the notice of commencement and prove that the notice of commencement is filed timely and meets all of the requirements in this section.
(b) A substantial inaccuracy in a notice of commencement renders the notice of commencement unenforceable.
(c) A person filing a notice of commencement by alternate filing is responsible for verifying and changing any incorrect information in the notice of commencement before the expiration of the time period during which the notice is required to be filed.
(6) At the time a building permit is obtained, each original contractor shall conspicuously post at the project site a copy of the building permit obtained for the project.
Section 507. Section 38-1-39 is amended to read:
38-1-39
. Waiver or impairment of a lien right -- Forms -- Scope.(1) As used in this section:
(a) "Check" means a payment instrument on a depository institution including:
(i) a check;
(ii) a draft;
(iii) an order; or
(iv) other instrument.
(b) "Depository institution" is as defined in Section 7-1-103.
(c) "Lien claimant" means a person that claims a lien under this chapter.
(d) "Receives payment" means, in the case of a restrictive endorsement, a payee has endorsed a check and the check is presented to and paid by the depository institution on which it is drawn.
(2) Notwithstanding Section 38-1-29, a written consent given by a lien claimant that waives or limits the lien claimant's lien rights is enforceable only if the lien claimant:
(a) (i) executes a waiver and release that is signed by the lien claimant or the lien claimant's authorized agent; or
(ii) for a restrictive endorsement on a check, includes a restrictive endorsement on a check that is:
(A) signed by the lien claimant or the lien claimant's authorized agent; and
(B) in substantially the same form set forth in Subsection (4)(d); and
(b) receives payment of the amount identified in the waiver and release or check that includes the restrictive endorsement:
(i) including payment by a joint payee check; and
(ii) for a progress payment, only to the extent of the payment.
(3) (a) Notwithstanding the language of a waiver and release described in Subsection (2), Subsection (3)(b) applies if:
(i) the payment given in exchange for any waiver and release of lien is made by check; and
(ii) the check fails to clear the depository institution on which it is drawn for any reason.
(b) If the conditions of Subsection (3)(a) are met:
(i) the waiver and release described in Subsection (3)(a) is null, void, and of no legal effect; and
(ii) the following will not be affected by the lien claimant's execution of the waiver and release:
(A) any lien;
(B) any lien right;
(C) any bond right;
(D) any contract right; or
(E) any other right to recover payment afforded to the lien claimant in law or equity.
(4) (a) A waiver and release given by a lien claimant meets the requirements of this section if it is in substantially the form provided in this Subsection (4) for the circumstance provided in this Subsection (4).
(b) A waiver and release may be in substantially the following form if the lien claimant is required to execute a waiver and release in exchange for or to induce the payment of a progress billing:
"UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT
Property Name: _____________________________________________________________
Property Location: ___________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________
Payment Period: ____________________________________________________________
To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section [63-56-504] 63G-6-505 related to payment rights the undersigned has on the above described Property once:
(1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to a progress payment for the work, materials, equipment, or a combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount. This waiver and release does not apply to any retention withheld; any items, modifications, or changes pending approval; disputed items and claims; or items furnished or invoiced after the Payment Period.
The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from this progress payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(c) A waiver and release may be in substantially the following form if the lien claimant is required to execute a waiver and release in exchange for or to induce the payment of a final billing:
"UTAH WAIVER AND RELEASE UPON FINAL PAYMENT
Property Name: ____________________________________________________________
Property Location: __________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________
To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section [63-56-504
] 63G-6-505 related to payment rights the undersigned has on the above described Property once:(1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to the final payment for the work, materials, equipment, or combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer.
The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from the final payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(d) A restrictive endorsement placed on a check to effectuate a waiver and release described in this Subsection (4) meets the requirements of this section if it is in substantially the following form:
"This check is a progress/ final payment for property described on this check sufficient for identification. Endorsement of this check is an acknowledgment by the endorser that the waiver and release to which the payment applies is effective to the extent provided in Utah Code Ann. Subsection 38-1-39
(4)(b) or (c) respectively."(e) (i) If using a restrictive endorsement under Subsection (4)(d), the person preparing the check shall indicate whether the check is for a progress payment or a final payment by circling the word "progress" if the check is for a progress payment, or the word "final" if the check is for a final payment.
(ii) If a restrictive endorsement does not indicate whether the check is for a progress payment or a final payment, it is considered to be for a progress payment.
(5) (a) If the conditions of Subsection (5)(b) are met, this section does not affect the enforcement of:
(i) an accord and satisfaction regarding a bona fide dispute; or
(ii) an agreement made in settlement of an action pending in any court or arbitration.
(b) Pursuant to Subsection (5)(a), this section does not affect enforcement of an accord and satisfaction or settlement described in Subsection (5)(a) if the accord and satisfaction or settlement:
(i) is in a writing signed by the lien claimant; and
(ii) specifically references the lien rights waived or impaired.
Section 508. Section 38-11-105 is amended to read:
38-11-105
. Procedures established by rule.In compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division shall establish procedures by rule by which claims for compensation from the fund and requests for certificates of compliance shall be adjudicated and by which assessments shall be collected.
Section 509. Section 38-11-108 is amended to read:
38-11-108
. Notification of rights under chapter.(1) Beginning July 1, 1995, the original contractor or real estate developer shall state in the written contract with the owner what actions are necessary for the owner to be protected under Section 38-11-107 from the maintaining of a mechanic's lien or other civil action against the owner or the owner-occupied residence to recover monies owed for qualified services.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may issue rules providing for the form and content of the information required by Subsection (1).
Section 510. Section 38-11-110 is amended to read:
38-11-110
. Issuance of certificates of compliance.The director shall have authority to issue or deny a certificate of compliance only after determining through an informal proceeding, as set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, that the owner is in compliance with Subsections 38-11-204(4)(a) and (4)(b).
Section 511. Section 38-11-201 is amended to read:
38-11-201
. Residence Lien Recovery Fund.(1) There is created a restricted special revenue fund called the "Residence Lien Recovery Fund."
(2) (a) The fund consists of all amounts collected by the division in accordance with Section 38-11-202.
(b) (i) The division shall deposit the funds in an account with the state treasurer.
(ii) The division shall record the funds in the Residence Lien Recovery Fund.
(c) The fund shall earn interest.
(3) The division shall employ personnel and resources necessary to administer the fund and shall use fund monies in accordance with Sections 38-11-203 and 38-11-204 and to pay the costs charged to the fund by the attorney general.
(4) Costs incurred by the division for administering the fund shall be paid out of fund monies.
(5) The Division of Finance shall report annually to the Legislature, the division, and the board. The report shall state:
(a) amounts received by the fund;
(b) disbursements from the fund;
(c) interest earned and credited to the fund; and
(d) the fund balance.
(6) (a) For purposes of establishing and assessing regulatory fees under Subsection [63-38-3.2] 63J-1-303(5), the provisions of this chapter are considered a new program for fiscal year 1995-96.
(b) The department shall submit its fee schedule to the Legislature for its approval at the 1996 Annual General Session.
Section 512. Section 38-11-202 is amended to read:
38-11-202
. Payments to the fund.The Residence Lien Recovery Fund shall be supported solely from:
(1) initial and special assessments collected by the division from licensed contractors registered as qualified beneficiaries in accordance with Subsections 38-11-301(1) and (2) and Section 38-11-206;
(2) initial and special assessments collected by the division from other qualified beneficiaries registering with the division in accordance with Subsection 38-11-301(3) and Section 38-11-206;
(3) fees determined by the division under Section [63-38-3.2] 63J-1-303 collected from laborers under Subsection 38-11-204(8) when the laborers obtain a recovery from the fund;
(4) amounts collected by subrogation under Section 38-11-205 on behalf of the fund following a payment from the fund;
(5) application fees determined by the division under Section [63-38-3.2] 63J-1-303 collected from:
(a) qualified beneficiaries or laborers under Subsection 38-11-204(1)(b) when qualified beneficiaries or laborers make a claim against the fund; or
(b) owners or agents of the owners seeking to obtain a certificate of compliance for the owner;
(6) registration fees determined by the division under Section [63-38-3.2] 63J-1-303 collected from other qualified beneficiaries registering with the department in accordance with Subsection 38-11-301(3)(a)(iii);
(7) reinstatement fees determined by the division under Section [63-38-3.2] 63J-1-303 collected from registrants in accordance with Subsection 38-11-302(5)(b);
(8) civil fines authorized under Subsection 38-11-205(2) collected by the attorney general for failure to reimburse the fund; and
(9) any interest earned by the fund.
Section 513. Section 38-11-204 is amended to read:
38-11-204
. Claims against the fund -- Requirement to make a claim -- Qualifications to receive compensation -- Qualifications to receive a certificate of compliance.(1) To claim recovery from the fund a person shall:
(a) meet the requirements of either Subsection (4) or (7);
(b) pay an application fee determined by the division under Section [63-38-3.2] 63J-1-303; and
(c) file with the division a completed application on a form provided by the division accompanied by supporting documents establishing:
(i) that the person meets the requirements of either Subsection (4) or (7);
(ii) that the person was a qualified beneficiary or laborer during the construction on the owner-occupied residence; and
(iii) the basis for the claim.
(2) To recover from the fund, the application required by Subsection (1) shall be filed no later than one year:
(a) from the date the judgment required by Subsection (4)(d) is entered;
(b) from the date the nonpaying party filed bankruptcy, if the claimant is precluded from obtaining a judgment or from satisfying the requirements of Subsection (4)(d) because the nonpaying party filed bankruptcy within one year after the entry of judgment; or
(c) from the date the laborer, trying to recover from the fund, completed the laborer's qualified services.
(3) To obtain a certificate of compliance an owner or agent of the owner shall establish with the division that the owner meets the requirements of Subsections (4)(a) and (4)(b).
(4) To recover from the fund, regardless of whether the residence is occupied by the owner, a subsequent owner, or the owner or subsequent owner's tenant or lessee, a qualified beneficiary shall establish that:
(a) (i) the owner of the owner-occupied residence or the owner's agent entered into a written contract with an original contractor licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act:
(A) for the performance of qualified services;
(B) to obtain the performance of qualified services by others; or
(C) for the supervision of the performance by others of qualified services in construction on that residence;
(ii) the owner of the owner-occupied residence or the owner's agent entered into a written contract with a real estate developer for the purchase of an owner-occupied residence; or
(iii) the owner of the owner-occupied residence or the owner's agent entered into a written contract with a factory built housing retailer for the purchase of an owner-occupied residence;
(b) the owner has paid in full the original contractor, licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, real estate developer, or factory built housing retailer under Subsection (4)(a) with whom the owner has a written contract in accordance with the written contract and any amendments to the contract;
(c) (i) the original contractor, licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, the real estate developer, or the factory built housing retailer subsequently failed to pay a qualified beneficiary who is entitled to payment under an agreement with that original contractor or real estate developer licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, for services performed or materials supplied by the qualified beneficiary;
(ii) a subcontractor who contracts with the original contractor, licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, the real estate developer, or the factory built housing retailer failed to pay a qualified beneficiary who is entitled to payment under an agreement with that subcontractor or supplier; or
(iii) a subcontractor who contracts with a subcontractor or supplier failed to pay a qualified beneficiary who is entitled to payment under an agreement with that subcontractor or supplier;
(d) (i) unless precluded from doing so by the nonpaying party's bankruptcy filing within the applicable time, the qualified beneficiary filed an action against the nonpaying party to recover monies owed to the qualified beneficiary within the earlier of:
(A) 180 days from the date the qualified beneficiary filed a notice of claim under Section 38-1-7; or
(B) 270 days from the completion of the original contract pursuant to Subsection 38-1-7(1);
(ii) the qualified beneficiary has obtained a judgment against the nonpaying party who failed to pay the qualified beneficiary under an agreement to provide qualified services for construction of that owner-occupied residence;
(iii) (A) the qualified beneficiary has:
(I) obtained from a court of competent jurisdiction the issuance of an order requiring the judgment debtor, or if a corporation any officer of the corporation, to appear before the court at a specified time and place to answer concerning the debtor's or corporation's property;
(II) received return of service of the order from a person qualified to serve documents under the Utah Rules of Civil Procedure, Rule 4(b); and
(III) made reasonable efforts to obtain asset information from the supplemental proceedings; and
(B) if assets subject to execution are discovered as a result of the order required under Subsection (4)(d)(iii)(A) or for any other reason, to obtain the issuance of a writ of execution from a court of competent jurisdiction; or
(iv) the qualified beneficiary timely filed a proof of claim where permitted in the bankruptcy action, if the nonpaying party has filed bankruptcy;
(e) the qualified beneficiary is not entitled to reimbursement from any other person; and
(f) the qualified beneficiary provided qualified services to a contractor, licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act.
(5) The requirements of Subsections (4)(d) (ii) and (iii) need not be met if the qualified beneficiary is prevented from compliance because the nonpaying party files bankruptcy.
(6) To recover from the fund a laborer shall:
(a) establish that the laborer has not been paid wages due for the work performed at the site of a construction on an owner-occupied residence; and
(b) provide any supporting documents or information required by rule by the division.
(7) A fee determined by the division under Section [63-38-3.2] 63J-1-303 shall be deducted from any recovery from the fund received by a laborer.
(8) The requirements of Subsections (4)(a) and (4)(b) may be satisfied if an owner or agent of the owner establishes to the satisfaction of the director that the owner of the owner-occupied residence or the owner's agent entered into a written contract with an original contractor who:
(a) was a business entity that was not licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, but was solely or partly owned by an individual who was licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act; or
(b) was a natural person who was not licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, but who was the sole or partial owner and qualifier of a business entity that was licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act.
(9) The director shall have equitable power to determine if the requirements of Subsections (4)(a) and (4)(b) have been met, but any decision by the director under this chapter shall not alter or have any effect on any other decision by the division under Title 58, Occupations and Professions.
Section 514. Section 38-11-206 is amended to read:
38-11-206
. Limitations on fund balance -- Payment of special assessments.(1) (a) If on December 31 of any year the balance in the fund is less than $1,500,000, the division shall make a special assessment against all qualified beneficiaries in an amount that will restore the unencumbered fund balance to not less than $2,000,000 or more than $2,500,000.
(b) The amount of the special assessment shall be determined by the division under Subsection [63-38-3.2] 63J-1-303(5) after consultation with the board.
(2) Special assessments made under this section shall be due and payable on May 1 following assessment.
(3) The fund balance limitations set forth in Subsection (1)(a) shall be used by the division only for the purpose of determining the amount of any special assessment and do not prohibit the fund balance from exceeding $2,500,000 or falling below $2,000,000.
Section 515. Section 38-11-207 is amended to read:
38-11-207
. Reimbursement to the fund.(1) If the director disburses monies from the fund as a result of a person licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, or a qualified beneficiary failing to pay qualified beneficiaries:
(a) the division shall issue a notice of the disbursement from the fund and the obligation to reimburse the fund to the licensee or qualified beneficiary; and
(b) the licensee or qualified beneficiary shall reimburse the fund within 20 days from the issuance of the notice required by Subsection (1)(a).
(2) The notice required by Subsection (1)(a) shall meet the requirements established by rule by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) A finding of fact in an administrative action that a payment of any amount has been made from the fund in settlement of a claim arising from the act, representation, transaction, or conduct of a person licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, in violation of Section 58-55-603 shall result in the immediate suspension of that person's license without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) The finding of fact for Subsection (3)(a) may be made in the same administrative action as the related claim and may be included in the findings required by Section 38-11-203.
(c) The suspension required by Subsection (3)(a) shall remain in effect until the person applies for reinstatement and is issued a license in accordance with Sections 58-1-308 and 58-55-303.
Section 516. Section 38-11-301 is amended to read:
38-11-301
. Registration as a qualified beneficiary -- Initial regular assessment -- Affidavit.(1) A person licensed as of July 1, 1995, as a contractor under the provisions of Title 58, Chapter 55, Utah Construction Trades Licensing Act, in license classifications that regularly engage in providing qualified services shall be automatically registered as a qualified beneficiary upon payment of the initial assessment.
(2) A person applying for licensure as a contractor after July 1, 1995, in license classifications that regularly engage in providing qualified services shall be automatically registered as a qualified beneficiary upon issuance of a license and payment of the initial assessment.
(3) (a) After July 1, 1995, any person providing qualified services as other than a contractor as provided in Subsection (1) or any person exempt from licensure under the provisions of Title 58, Chapter 55, Utah Construction Trades Licensing Act, may register as a qualified beneficiary by:
(i) submitting an application in a form prescribed by the division;
(ii) demonstrating registration with the Division of Corporations and Commercial Code as required by state law;
(iii) paying a registration fee determined by the division under Section [63-38-3.2] 63J-1-303; and
(iv) paying the initial assessment established under Subsection (4), and any special assessment determined by the division under Subsection 38-11-206(1).
(b) A person who does not register under Subsection (1), (2), or (3)(a) shall be prohibited from recovering under the fund as a qualified beneficiary for work performed as qualified services while not registered with the fund.
(4) (a) An applicant shall pay an initial assessment determined by the division under Section [63-38-3.2] 63J-1-303.
(b) The initial assessment to qualified registrants under Subsection (1) shall be made not later than July 15, 1995, and shall be paid no later than November 1, 1995.
(c) The initial assessment to qualified registrants under Subsections (2) and (3) shall be paid at the time of application for license or registration, however, beginning on May 1, 1996, only one initial assessment or special assessments thereafter shall be required for persons having multiple licenses under this section.
(5) A person shall be considered to have been registered as a qualified beneficiary on January 1, 1995, for purposes of meeting the requirements of Subsection 38-11-204(1)(c)(ii) if the person:
(a) (i) is licensed on or before July 1, 1995, as a contractor under the provisions of Title 58, Chapter 55, Utah Construction Trades Licensing Act, in license classifications that regularly engage in providing qualified services; or
(ii) provides qualified services after July 1, 1995, as other than a contractor as provided in Subsection (5)(a)(i) or is exempt from licensure under the provisions of Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
(b) registers as a qualified beneficiary under Subsection (1) or (3) on or before November 1, 1995.
Section 517. Section 38-11-302 is amended to read:
38-11-302
. Effective date and term of registration -- Penalty for failure to pay assessments -- Reinstatement.(1) (a) A registration as a qualified beneficiary under this chapter is effective on the date the division receives the initial assessment of the qualified beneficiary.
(b) A registrant shall be required to renew his registration upon imposition of a special assessment under Subsection 38-11-206(1).
(2) A registration automatically expires if a registrant fails to renew his registration as required under Subsection (1).
(3) The division shall notify a qualified beneficiary in accordance with procedures established by rule when renewal of registration is required in connection with a special assessment.
(4) The license renewal notice to a contractor shall notify the licensee that failure to renew his license will result in automatic expiration of his registration as a qualified beneficiary and of the limitations set forth in Subsection (6) on qualified beneficiaries whose registration has expired to make a claim upon the fund.
(5) Registration may be reinstated by:
(a) submitting an application for reinstatement in a form prescribed by the division;
(b) paying a reinstatement fee determined by the division under Section [63-38-3.2] 63J-1-303; and
(c) paying all unpaid assessments that were assessed during the period of the person's registration and all assessments made upon qualified beneficiaries during the period the applicant's registration was expired.
(6) (a) A qualified beneficiary whose registration expires loses all rights to make a claim upon the fund or receive compensation from the fund resulting from providing qualified service during the period of expiration.
(b) Except as provided by Section 58-55-401, a qualified beneficiary whose registration expires may make a claim upon the fund or receive compensation from the fund for qualified services provided during the period the qualified beneficiary was part of the fund.
Section 518. Section 39-5-2 is amended to read:
39-5-2
. Form of compact.The compact shall be in substantially the following form:
The contracting states solemnly agree:
Article 1
PURPOSE OF ACT -- UTILIZATION OF RESOURCES --
DIRECTORS ACT AS COMMITTEE
The purpose of this compact is to provide mutual aid among the States in meeting any emergency or disaster as defined in Section [63-5-2] 63K-3-102, from enemy attack or other cause, natural or otherwise, including sabotage and subversive acts and direct attacks by bombs, shellfire, and atomic, radiological, chemical, bacteriological means, and other weapons. The prompt, full, and effective utilization of the resources of the respective States, including resources available from the United States Government or any other source, are essential to the safety, care, and welfare of the people in the event of an emergency, and any other resources, including personnel, equipment, or supplies, shall be incorporated into a plan or plans of mutual aid to be developed among the Civil Defense agencies or similar bodies of the States that are parties to this compact. The Directors of Civil Defense of all party States shall constitute a committee to formulate plans and take all necessary steps for the implementation of this compact.
Article 2
CIVIL DEFENSE PLANS -- CONSULTATIONS --
UNIFORMITY OF ACTION
It is the duty of each party State to formulate civil defense plans and programs for application within each State. There shall be frequent consultation between the representatives of the States and with the United States Government and the free exchange of information and plans, including inventories of any materials and equipment available for civil defense. In carrying out these civil defense plans and programs, the party States shall, if possible, provide and follow uniform standards, practices, and rules and regulations including:
(1) insignia, arm bands, and other distinctive articles to designate and distinguish the different civil defense services;
(2) blackouts and practice blackouts, air raid drills, mobilization of civil defense forces, and other tests and exercises;
(3) warnings and signals for drills or attacks and the mechanical devices to be used in connection with them;
(4) the effective screening or extinguishing of all lights, lighting devices, and appliances;
(5) shutting off water mains, gas mains, electric power connections, and the suspension of all other utility services;
(6) all materials or equipment used or to be used for civil defense purposes in order to assure that the materials and equipment will be easily and freely interchangeable when used in or by any other party State;
(7) the conduct of civilians and the movement and cessation of movement of pedestrians and vehicular traffic, prior, during, and subsequent to drills or attacks;
(8) the safety of public meetings or gatherings; and
(9) mobile support units.
Article 3
DUTIES OF MEMBER STATES
Any party State requested to render mutual aid shall take any action necessary to provide and make available the resources covered by this compact in accordance with its terms; provided that it is understood that the State rendering aid may withhold resources to the extent necessary to provide reasonable protection for itself. Each party State shall extend to the civil defense forces of any other party State, while operating within its State limits under the terms and conditions of this compact, the same powers, except that of arrest unless specifically authorized by the receiving State, duties, rights, privileges, and immunities as if they were performing their duties in the State in which normally employed or rendering services. Civil defense forces will continue under the command and control of their regular leaders but the organizational units will come under the operational control of the civil defense authorities of the State receiving assistance.
Article 4
EFFECT OF STATE LICENSE, CERTIFICATE
OR PERMIT IN OTHER STATES
Any person holding a license, certificate, or other permit issued by any State evidencing the meeting of qualifications for professional, mechanical, or other skills, may render aid involving the skill in any party State to meet an emergency or disaster and that State shall recognize the license, certificate, or other permit as if issued in the State in which aid is rendered.
Article 5
RESTRICTION ON LIABILITY
No party State or its officers or employees rendering aid in another State pursuant to this compact shall be liable on account of any act or omission in good faith on the part of its forces while engaged, or on account of the maintenance or use of any equipment or supplies in connection with giving aid.
Article 6
BASIC CONSIDERATIONS AND AUXILIARY ACTION
(1) Since it is probable that the pattern and detail of the machinery for mutual aid among two or more States may differ from that appropriate among other States party to this compact, this instrument contains elements of a broad base common to all States, and nothing contained in it shall preclude any State from entering into supplementary agreements with another State or States. Any supplementary agreements may comprehend, but shall not be limited to provisions for evacuation and reception of injured and other persons, and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, equipment, and supplies.
(2) Any supplementary agreement made to implement this Article may not be construed to abridge, impair, or supersede any other provision of this compact or any obligation undertaken by a State pursuant to the terms of this compact. A supplementary agreement implementing this Article may modify, expand, or add to any obligation among the parties to the supplementary agreement.
Article 7
COMPENSATION AND BENEFITS
Each party State shall provide for the payment of compensation and death benefits to injured members of the civil defense forces of that State and the representatives of deceased members of the forces of that State in case the members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within that State.
Article 8
CONTRIBUTIONS AND REIMBURSEMENTS
Any party State rendering aid in another State pursuant to this compact shall be reimbursed by the party State receiving aid for any loss or damage to or expense incurred in the operation of any equipment answering a request for aid, and for the cost incurred in connection with the requests; provided that any aiding party State may assume in whole or in part any loss, damage, expense, or other cost, or may loan any equipment or donate any services to the receiving party State without charge or cost; and provided further that any two or more party States may enter into supplementary agreements establishing a different allocation of costs as among those States. The United States Government may relieve the party States receiving aid from any liability and reimburse the party State supplying civil defense forces for the compensation paid to and the transportation, subsistence, and maintenance expenses of its forces during the time of the rendition of aid or assistance outside the State and may also pay fair and reasonable compensation for the use or utilization of the supplies, materials, equipment, or facilities so utilized or consumed.
Article 9
PLANS FOR EVACUATION AND RECEPTION OF POPULATIONS
Plans for the orderly evacuation and reception of the civilian population as the result of an emergency or disaster shall be worked out from time to time between representatives of the party States and the various local civil defense areas. Any plans shall include the manner of transporting evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends and the forwarding of evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Any plans shall provide that the party State receiving evacuees shall be reimbursed generally for the out-of-pocket expenses incurred in receiving and caring for the evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Any expenditures shall be reimbursed by the party State of which the evacuees are residents, or by the United States Government under plans approved by it. After the termination of the emergency or disaster, the party State of which the evacuees are residents shall assume the responsibility for the ultimate support or repatriation of the evacuees.
Article 10
MEMBER STATES
This compact shall be available to any state of the United States and the District of Columbia.
Article 11
COMMITTEE ACTION AND REQUESTS
The committee established pursuant to Article 1 of this compact may request the Civil Defense Agency of the United States Government to act as an informational and coordinating body under this compact, and representatives of that agency of the United States Government may attend meetings of the committee.
Article 12
WHEN COMPACT EFFECTIVE
This compact shall become operative immediately upon its ratification by any of the States and Territories enumerated in Article 10 of this compact as between it and the State of Utah and any other of the States or Territories ratifying it and shall be subject to approval by Congress unless prior Congressional approval has been given. Duly authenticated copies of this compact and of any supplementary agreements entered into shall, at the time of their approval, be deposited with each of the party States and with the Civil Defense Agency and other appropriate agencies of the United States Government.
Article 13
DURATION OF COMPACT
This compact shall continue in force and remain binding on each party State until the Legislature or the Governor of the party State takes action to withdraw from it. Any action to withdraw shall not be effective until 30 days after notice of the action has been sent by the Governor of the party State desiring to withdraw to the Governors of all other party States.
Article 14
CONSTRUCTION OF COMPACT -- CONSTITUTIONALITY
This compact shall be construed to effectuate the purposes stated in Article 1. If any provision of this compact is declared unconstitutional, or the applicability to any person or circumstance is held invalid, the constitutionality of the remainder of this compact and the applicability to other persons and circumstances shall not be affected.
Article 15
SCOPE OF COMPACT
(1) In addition to the situations in Article 1, this compact shall apply to:
(a) searches for and rescue of persons who are lost, marooned, or otherwise in danger;
(b) actions useful in coping with any disasters or designed to increase the capability to cope with any disasters;
(c) incidents, or the threat of incidents, which endanger the health or safety of the public and which require the use of special equipment, trained personnel, or personnel in larger numbers than are locally available in order to reduce, counteract, or remove the danger;
(d) giving and receiving aid between political subdivisions of party States; and
(e) exercises, drills, or other training or practice activities designed to aid personnel to prepare for, cope with, or prevent any disaster or other emergency to which this compact applies.
(2) Except as expressly limited by this compact or a supplementary agreement, any aid authorized by this compact or a supplementary agreement may be furnished by any agency of a party State, a political subdivision of the State, or by a joint agency of any two or more party States or of their subdivisions. Any joint agency providing aid shall be entitled to reimbursement to the same extent and in the same manner as a state. The personnel of a joint agency, when rendering aid under this compact shall have the same rights, authority, and immunity as personnel of party States.
(3) Nothing in this Article shall be construed to exclude from coverage under Articles 1 through 14 of this compact any matter which, in the absence of this Article, could reasonably be construed to be covered.
Section 519. Section 39-7-119 is amended to read:
39-7-119
. Rulemaking authority.The Adjutant General may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this chapter.
Section 520. Section 40-2-1.1 is amended to read:
40-2-1.1
. Rulemaking authority.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Labor Commission may make rules necessary to implement this chapter.
Section 521. Section 40-2-15 is amended to read:
40-2-15
. Certification requirements -- Fees.(1) The Labor Commission shall collect a fee for:
(a) certification tests; or
(b) sections of the test that must be retaken.
(2) (a) The Labor Commission shall establish fees by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(b) Notwithstanding Subsection [63-38-3.2] 63J-1-303(2)(e), the Labor Commission shall retain the fees as dedicated credits and may only use the fees to administer the certification test.
(3) An applicant who fails any section of the certification test may retake that section of the test.
(4) (a) An applicant who wishes to obtain a mine foreman certificate shall have at least four years varied underground coal mining experience, of which:
(i) two years' experience may be credited to a mining engineering graduate of an approved four-year college; or
(ii) one year's experience may be credited to a graduate of a two-year course in mining technology.
(b) (i) An applicant who wishes to obtain a surface foreman certificate shall have at least three years of varied surface experience.
(ii) The Labor Commission may grant a surface foreman certificate applicant credit for surface experience in any other industry that has substantially equivalent surface facilities.
(c) An applicant who wishes to obtain a fire boss certificate shall have at least two years of underground coal mining experience, of which:
(i) one year's experience may be credited to a mining engineering graduate of an approved four-year college; or
(ii) six months' experience may be credited to a graduate of a two-year course in mining technology.
(d) An applicant who wishes to obtain an underground mine electrician certificate shall have at least one year of varied electrical experience as specified in 30 C.F.R. Sec. 75.153.
(e) An applicant who wishes to obtain a surface mine electrician certificate shall have at least one year of varied surface electrical experience as specified in 30 C.F.R. Sec. 77.103.
(5) A certificate issued under Section 40-2-14 and this section shall expire if the certificate holder ceases to work in the mining industry or a mine related industry for more than five consecutive years.
Section 522. Section 40-2-16 is amended to read:
40-2-16
. Necessity of certificate -- Temporary certificates -- Surface foreman certificate -- Fee -- Employment of uncertified persons prohibited.(1) A person may not work in any occupation referred to in Section 40-2-15 unless granted a certificate by the Labor Commission.
(2) (a) (i) The Labor Commission may issue a temporary mine foreman certificate or a temporary surface foreman certificate to an applicant who is:
(A) recommended by a mine; and
(B) interviewed and found competent by two panel members.
(ii) A certificate issued under Subsection (2)(a)(i) shall remain in effect until:
(A) the next scheduled certification test;
(B) retest; or
(C) terminated by the Labor Commission.
(b) (i) The Labor Commission may issue a surface foreman certificate to a current holder of an underground mine foreman certificate, if the applicant has three years of varied surface mining experience.
(ii) A surface foreman certificate applicant may receive credit for surface experience in any other industry that has substantially equivalent surface facilities, if the applicant has performed or is presently performing the duties normally required of a surface foreman.
(3) (a) The Labor Commission shall collect a fee for each temporary certificate.
(b) The Labor Commission shall establish the fee by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(4) (a) An owner, operator, contractor, lessee, or agent may not employ a worker in any occupation referred to in Section 40-2-15 who is uncertified.
(b) The certificate shall be on file and available for inspection to interested persons in the office of the mine.
Section 523. Section 40-6-10 is amended to read:
40-6-10
. Procedures -- Adjudicative proceedings -- Emergency orders -- Hearing examiners.(1) (a) The Board of Oil, Gas, and Mining and the Division of Oil, Gas, and Mining shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
(b) The board shall enact rules governing its practice and procedure that are not inconsistent with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) When an emergency requiring immediate action is found by the division director or any board member to exist, he may issue an emergency order according to the requirements and procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) Any notice required by this chapter, except as otherwise provided, shall be given at the election of the board either by personal service or by one publication in a daily newspaper of general circulation in the city of Salt Lake and county of Salt Lake, Utah, and in all newspapers of general circulation published in the county where the land is affected, or some part of the land is situated.
(4) (a) Any order made by the board is effective on issuance.
(b) All rules and orders issued by the board shall be:
(i) in writing;
(ii) entered in full in books to be kept by the board for that purpose;
(iii) indexed; and
(iv) public records open for inspection at all times during reasonable office hours.
(c) A copy of any rule, finding of fact, or order, certified by the board or by the division director, shall be received in evidence in all courts of this state with the same effect as the original.
(5) The board may act upon its own motion or upon the petition of any interested person.
(6) (a) The board may appoint a hearing examiner to take evidence and to recommend findings of fact and conclusions of law to the board.
(b) Any member of the board, division staff, or any other person designated by the board may serve as a hearing examiner.
(c) The board may enter an order based on the recommendations of the examiner.
Section 524. Section 40-6-14.5 is amended to read:
40-6-14.5
. Oil and Gas Conservation Account created -- Contents -- Use of account monies.(1) There is created within the General Fund a restricted account known as the Oil and Gas Conservation Account.
(2) The contents of the account shall consist of:
(a) revenues from the fee levied under Section 40-6-14, including any penalties or interest charged for delinquent payments; and
(b) interest and earnings on account monies.
(3) Account monies shall be used to pay for the:
(a) administration of this chapter; and
(b) plugging and reclamation of abandoned oil or gas wells or bore, core, or exploratory holes for which:
(i) there is no reclamation surety; or
(ii) the forfeited surety is insufficient for plugging and reclamation.
(4) Priority in the use of the monies shall be given to paying for the administration of this chapter.
(5) Appropriations for plugging and reclamation of abandoned oil or gas wells or bore, core, or exploratory holes shall be nonlapsing.
(6) The balance of the Oil and Gas Conservation Account at the end of a fiscal year may not exceed $750,000. Any excess monies shall be transferred to the General Fund.
(7) (a) As used in this Subsection (7), "excess fee revenue" means revenue collected in fiscal year 1999-2000 from the fee levied under Section 40-6-14 that exceeds the fee revenue appropriated to the Division of Oil, Gas, and Mining in fiscal year 1999-2000.
(b) If there is a General Fund surplus for fiscal year 1999-2000, the Division of Finance shall transfer General Fund surplus monies to the Oil and Gas Conservation Account in an amount up to the excess fee revenue.
(c) The transfer provided in Subsection (7)(b) shall be made after General Fund surplus monies are transferred to the General Fund Budget Reserve Account pursuant to Section [63-38-2.5] 63J-1-202.
Section 525. Section 40-8-4 is amended to read:
40-8-4
. Definitions.As used in this chapter:
(1) "Adjudicative proceeding" means:
(a) a division or board action or proceeding determining the legal rights, duties, privileges, immunities, or other legal interests of one or more identifiable persons, including actions to grant, deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right, permit, or license; or
(b) judicial review of a division or board action or proceeding specified in Subsection (1)(a).
(2) "Applicant" means a person who has filed a notice of intent to commence mining operations, or who has applied to the board for a review of a notice or order.
(3) (a) "Approved notice of intention" means a formally filed notice of intention to commence mining operations, including revisions to it, which has been approved under Section 40-8-13.
(b) An approved notice of intention is not required for small mining operations.
(4) "Board" means the Board of Oil, Gas and Mining.
(5) "Conference" means an informal adjudicative proceeding conducted by the division or board.
(6) (a) "Deposit" or "mineral deposit" means an accumulation of mineral matter in the form of consolidated rock, unconsolidated material, solutions, or occurring on the surface, beneath the surface, or in the waters of the land from which any product useful to man may be produced, extracted, or obtained or which is extracted by underground mining methods for underground storage.
(b) "Deposit" or "mineral deposit" excludes sand, gravel, rock aggregate, water, geothermal steam, and oil and gas as defined in Title 40, Chapter 6, Board and Division of Oil, Gas and Mining, but includes oil shale and bituminous sands extracted by mining operations.
(7) "Development" means the work performed in relation to a deposit following its discovery but prior to and in contemplation of production mining operations, aimed at, but not limited to, preparing the site for mining operations, defining further the ore deposit by drilling or other means, conducting pilot plant operations, constructing roads or ancillary facilities, and other related activities.
(8) "Division" means the Division of Oil, Gas and Mining.
(9) "Emergency order" means an order issued by the board in accordance with the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(10) (a) "Exploration" means surface-disturbing activities conducted for the purpose of discovering a deposit or mineral deposit, delineating the boundaries of a deposit or mineral deposit, and identifying regions or specific areas in which deposits or mineral deposits are most likely to exist.
(b) "Exploration" includes, but is not limited to: sinking shafts; tunneling; drilling holes and digging pits or cuts; building of roads, and other access ways; and constructing and operating other facilities related to these activities.
(11) "Hearing" means a formal adjudicative proceeding conducted by the board under its procedural rules.
(12) (a) "Imminent danger to the health and safety of the public" means the existence of a condition or practice, or a violation of a permit requirement or other requirement of this chapter in a mining operation, which condition, practice, or violation could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated.
(b) A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement.
(13) (a) "Land affected" means the surface and subsurface of an area within the state where mining operations are being or will be conducted, including, but not limited to:
(i) on-site private ways, roads, and railroads;
(ii) land excavations;
(iii) exploration sites;
(iv) drill sites or workings;
(v) refuse banks or spoil piles;
(vi) evaporation or settling ponds;
(vii) stockpiles;
(viii) leaching dumps;
(ix) placer areas;
(x) tailings ponds or dumps; and
(xi) work, parking, storage, or waste discharge areas, structures, and facilities.
(b) All lands shall be excluded from the provisions of Subsection (13)(a) that would:
(i) be includable as land affected, but which have been reclaimed in accordance with an approved plan, as may be approved by the board; and
(ii) lands in which mining operations have ceased prior to July 1, 1977.
(14) (a) "Mining operation" means activities conducted on the surface of the land for the exploration for, development of, or extraction of a mineral deposit, including, but not limited to, surface mining and the surface effects of underground and in situ mining, on-site transportation, concentrating, milling, evaporation, and other primary processing.
(b) "Mining operation" does not include:
(i) the extraction of sand, gravel, and rock aggregate;
(ii) the extraction of oil and gas as defined in Title 40, Chapter 6, Board and Division of Oil, Gas and Mining;
(iii) the extraction of geothermal steam;
(iv) smelting or refining operations;
(v) off-site operations and transportation;
(vi) reconnaissance activities; or
(vii) activities which will not cause significant surface resource disturbance or involve the use of mechanized earth-moving equipment, such as bulldozers or backhoes.
(15) "Notice" means:
(a) notice of intention, as defined in this chapter; or
(b) written information given to an operator by the division describing compliance conditions at a mining operation.
(16) "Notice of intention" means a notice to commence mining operations, including revisions to the notice.
(17) "Off-site" means the land areas that are outside of or beyond the on-site land.
(18) (a) "On-site" means the surface lands on or under which surface or underground mining operations are conducted.
(b) A series of related properties under the control of a single operator, but separated by small parcels of land controlled by others, will be considered to be a single site unless an exception is made by the division.
(19) "Operator" means a natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or representative, either public or private, owning, controlling, or managing a mining operation or proposed mining operation.
(20) "Order" means written information provided by the division or board to an operator or other parties, describing the compliance status of a permit or mining operation.
(21) "Owner" means a natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or representative, either public or private, owning, controlling, or managing a mineral deposit or the surface of lands employed in mining operations.
(22) "Permit area" means the area of land indicated on the approved map submitted by the operator with the application or notice to conduct mining operations.
(23) "Permit" means a permit or notice to conduct mining operations issued by the division.
(24) "Permittee" means a person holding, or who is required by Utah law to hold, a valid permit or notice to conduct mining operations.
(25) "Person" means an individual, partnership, association, society, joint stock company, firm, company, corporation, or other governmental or business organization.
(26) "Reclamation" means actions performed during or after mining operations to shape, stabilize, revegetate, or treat the land affected in order to achieve a safe, stable, ecological condition and use which will be consistent with local environmental conditions.
(27) "Small mining operations" means mining operations which disturb or will disturb five or less surface acres at any given time.
(28) "Unwarranted failure to comply" means the failure of a permittee to prevent the occurrence of a violation of the permit or a requirement of this chapter due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate a violation of the permit or this chapter due to indifference, lack of diligence, or lack of reasonable care.
Section 526. Section 40-8-6 is amended to read:
40-8-6
. Board -- Powers, functions and duties.In addition to those provided in Title 40, Chapter 6, Board and Division of Oil, Gas and Mining the board has the following powers, functions, and duties:
(1) To enact rules according to the procedures and requirements of [Title 63, Chapter 46a,] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that are reasonably necessary to carry out the purposes of this chapter.
(2) To hold hearings and to issue orders or other appropriate instruments based upon the results of those hearings.
(3) To issue emergency orders according to the requirements and provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) To do all other things and take such other actions within the purposes of this act as may be necessary to enforce its provisions.
Section 527. Section 40-8-7 is amended to read:
40-8-7
. Board and division -- Authority.(1) The board and the division may require:
(a) that a notice of intention for all mining operations be filed with, and approved by, the division, before the mining operation commences or continues pursuant to Sections 40-8-13 and 40-8-23;
(b) the reclamation of lands affected by mining operations after the effective date of this chapter having due regard for innate differences in mineral deposits;
(c) for mining operations, including small mining operations, the furnishing and maintenance of reasonable surety to guarantee that the land affected is reclaimed according to approved plans consistent with on-site conditions;
(d) that the operator rehabilitate, close, or mitigate the impacts of each drill hole, shaft, or tunnel as required under Section 40-8-13;
(e) that the operator pay legally determined public liability and property damage claims resulting from mining operations;
(f) that every operator who conducts mining operations in the state maintain suitable records and make periodic reports to the division as required under this chapter;
(g) that with respect to all mining operations, a notice of intention is filed with and, if required by this chapter, approved by the division before any such mining operations are commenced or continued pursuant to Section 40-8-23;
(h) the suspension of mining operations in an emergency situation;
(i) the payment of fixed, uniform, and nonescalating permit fees; or
(j) that mining operations be conducted to minimize or prevent hazards to public health and safety.
(2) No rule established by the board with respect to mined land reclamation shall have retroactive effect on existing reclamation plans included as a part of an approved notice of intention to commence mining operations which was approved prior to the effective date of the rule.
(3) The board may promulgate rules relating to the surety for mining operations in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 528. Section 40-10-6 is amended to read:
40-10-6
. Powers, functions, and duties of board and division.In addition to those provided in Title 40, Chapter 8, the board and division have the following powers, functions, and duties:
(1) to make and promulgate in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act, such rules as are specifically necessary for the regulation of coal mining operations and reclamation operations;
(2) to authorize its employees, agents, or contractors to enter upon any property for the purpose of carrying out the provisions of this chapter and Title 40, Chapter 8;
(3) to establish specific reclamation and performance standards for new and existing coal mining operations and to effectuate these standards retroactively;
(4) to prohibit mining and exploration operations without a permit and to establish procedures and requirements for the preparation, submission, approval, denial, termination, and modification of applications for coal mining and reclamation permits and for coal exploration permits;
(5) to set and assess an application fee based on no more than the actual cost of review and processing of the application, this fee to accompany each application for a surface coal mining and reclamation permit and each application for an exploration permit;
(6) to establish procedures and detailed requirements for all reclamation plans submitted as part of a permit application;
(7) to condition the issuance of a permit to commence or continue surface mining operations upon the posting of performance bonds, deposits, or sureties and to make provision for the release of same in compliance with the requirements of this chapter;
(8) to appoint or employ technical support, legal services, or independent consultants in furtherance of the objectives of this chapter and shall be responsible for coordination with other agencies in matters relating to mined land reclamation and the application of related law; and
(9) to do all other things and take such other actions retroactively or otherwise within the purposes of this chapter as may be necessary to enforce its provisions.
Section 529. Section 40-10-6.5 is amended to read:
40-10-6.5
. Rulemaking authority and procedure.(1) The board shall promulgate rules under this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Except as provided in Subsection (3), no rule which the board adopts for the purpose of the state administering a program under the federal Surface Mining Control and Reclamation Act may be more stringent than the corresponding federal regulations which address the same circumstances. In adopting such rules, the board may incorporate by reference corresponding federal regulations.
(3) The board may adopt rules more stringent than corresponding federal regulations for the purpose described in Subsection (2), only if it makes a written finding after public comment and hearing, and based on evidence in the record, that the corresponding federal regulation is not adequate to protect public safety and the environment of the state. Those findings shall be accompanied by an opinion referring to and evaluating the public safety and environmental information and studies contained in the record which form the basis for the board's conclusion.
Section 530. Section 40-10-6.7 is amended to read:
40-10-6.7
. Administrative procedures.(1) (a) Informal adjudicative proceedings shall be conducted by the division under this chapter and shall be referred to as conferences or informal conferences.
(b) The conduct of conferences shall be governed by rules adopted by the board which are in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) (a) (i) Formal adjudicative proceedings shall be conducted by the division or board under this chapter and shall be referred to as hearings or public hearings.
(ii) The conduct of hearings shall be governed by rules adopted by the board which are in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Hearings under this chapter shall be conducted in a manner which guarantees the parties' due process rights. This includes:
(i) the right to examine any evidence presented to the board;
(ii) the right to cross-examine any witness; and
(iii) a prohibition of ex parte communication between any party and a member of the board.
(c) A verbatim record of each public hearing required by this chapter shall be made, and a transcript made available on the motion of any party or by order of the board.
Section 531. Section 40-10-13 is amended to read:
40-10-13
. Advertisement of ownership, location, and boundaries -- Notice to interested agencies or bodies -- Objections -- Conference.(1) At the time of submission of an application for a surface coal mining and reclamation permit, or revision of an existing permit pursuant to the provisions of this chapter, the applicant shall submit to the division a copy of his advertisement of the ownership, precise location, and boundaries of the land to be affected. At the time of submission the advertisement shall be placed by the applicant in a local newspaper of general circulation in the locality of the proposed surface mine at least once a week for four consecutive weeks. The division shall notify various local governmental bodies, planning agencies, and sewage and water treatment authorities of water companies in the locality in which the proposed surface mining will take place, notifying them of the operator's intention to surface mine a particularly described tract of land and indicating the application's permit number and where a copy of the proposed mining and reclamation plan may be inspected. These local bodies, agencies, authorities, or companies may submit written comments within a reasonable period established by the division on the mining applications with respect to the effects of the proposed operation on the environment which are within their area of responsibility. These comments shall immediately be transmitted to the applicant by the division and shall be made available to the public at the same locations as are the mining applications.
(2) (a) Any person having an interest which is or may be adversely affected or the officer or head of any federal, state, or local governmental agency or authority shall have the right to file written objections to the proposed initial or revised application for a permit for surface coal mining and reclamation operations with the division within 30 days after the last publication of the notice. These objections shall immediately be transmitted to the applicant by the division and shall be made available to the public.
(b) If written objections are filed and a conference requested, the division shall then hold a conference within a reasonable time of the receipt of the objections or request. The conference shall be informal and shall be conducted in accordance with the procedures described in this Subsection (b), irrespective of the requirements of Section [63-46b-5] 63G-4-203, Administrative Procedures Act. The conference shall be held in the locality of the coal mining and reclamation operation if requested within a reasonable time after written objections or the request for an informal conference are received by the division. The date, time, and location of the conference shall be advertised by the division in a newspaper of general circulation in the locality at least two weeks prior to the scheduled conference date. The division may arrange with the applicant upon request by any party to the administrative proceeding access to the proposed mining area for the purpose of gathering information relevant to the proceeding. An electronic or stenographic record shall be made of the conference proceeding unless waived by all parties. This record shall be maintained and shall be accessible to the parties until final release of the applicant's performance bond. In the event all parties requesting the conference stipulate agreement prior to the requested conference and withdraw their request, the conference need not be held.
Section 532. Section 40-10-14 is amended to read:
40-10-14
. Division's findings issued to applicant and parties to conference -- Notice to applicant of approval or disapproval of application -- Hearing -- Temporary relief -- Appeal to district court -- Further review.(1) If a conference has been held under Subsection 40-10-13(2), the division shall issue and furnish the applicant for a permit and persons who are parties to the proceedings with the written finding of the division granting or denying the permit in whole or in part and stating the reasons, within the 60 days after the conference.
(2) If there has been no conference held under Subsection 40-10-13(2), the division shall notify the applicant for a permit within a reasonable time as set forth in rules, taking into account the time needed for proper investigation of the site, the complexity of the permit application, and whether or not written objection to the application has been filed, whether the application has been approved or disapproved in whole or part.
(3) Upon approval of the application, the permit shall be issued. If the application is disapproved, specific reasons shall be set forth in the notification. Within 30 days after the applicant is notified of the final decision of the division on the permit application, the applicant or any person with an interest which is or may be adversely affected may request a hearing on the reasons for the final determination. The board shall hold a hearing pursuant to the rules of practice and procedure of the board within 30 days of this request and provide notification to all interested parties at the time that the applicant is notified. Within 30 days after the hearing the board shall issue and furnish the applicant, and all persons who participated in the hearing, with the written decision of the board granting or denying the permit in whole or in part and stating the reasons.
(4) Where a hearing is requested pursuant to Subsection (3), the board may, under conditions it prescribes, grant temporary relief it deems appropriate pending final determination of the proceedings if:
(a) all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
(b) the person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceedings; and
(c) the relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.
(5) For the purpose of the hearing, the board may administer oaths, subpoena witnesses or written or printed materials, compel attendance of the witnesses or production of the materials, and take evidence, including, but not limited to, site inspections of the land to be affected and other surface coal mining operations carried on by the applicant in the general vicinity of the proposed operation. A verbatim record of each public hearing required by this chapter shall be made, and a transcript made available on the motion of any party or by order of the board.
(6) (a) An applicant or person with an interest which is or may be adversely affected who has participated in the proceedings as an objector, and who is aggrieved by the decision of the board, may appeal the decision of the board directly to the Utah Supreme Court.
(b) If the board fails to act within the time limits specified in this chapter, the applicant or any person with an interest which is or may be adversely affected, who has requested a hearing in accordance with Subsection (3), may bring an action in the district court for the county in which the proposed operation is located.
(c) Any party to the action in district court may appeal from the final judgment, order, or decree of the district court.
(d) Time frames for appeals under Subsections (6)(a) through (c) shall be consistent with applicable provisions in Section [63-46b-14] 63G-4-401, Administrative Procedures Act.
Section 533. Section 40-10-16 is amended to read:
40-10-16
. Release of performance bond, surety, or deposit -- Inspection and evaluation of reclamation work -- Action on application for release of bond -- Objections -- Formal hearing or informal conference.(1) The division shall adopt and promulgate rules providing for the release of all or part of a performance bond, surety, or deposit which will include the following requirements:
(a) filing of a request with the division by the operator; and
(b) advertisement by the operator designed to give public notice of the release and the reclamation steps taken by the operator.
(2) Upon receipt of the notification and request, the division shall within 30 days conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of continuance of future occurrence of the pollution, and the estimated cost of abating the pollution. The division shall notify the operator in writing of its decision to release or not to release all or part of the performance bond or deposit within 60 days from the filing of the request, if no public hearing is held pursuant to Subsection (6), and if there has been a public hearing held pursuant to Subsection (6), within 30 days thereafter.
(3) The division may release in whole or in part the bond or deposit if the division is satisfied the reclamation covered by the bond or deposit or portion of them has been accomplished as required by this chapter according to the schedule set forth in the division's rules, but no bond shall be fully released until all reclamation requirements of this chapter are finally met.
(4) If the division disapproves the application for release of the bond or portion of it, the division shall notify the permittee in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing opportunity for a public hearing.
(5) When any application for total or partial bond release is filed with the division, the division shall notify the municipality in which a surface coal mining operation is located by certified mail at least 30 days prior to the release of all or a portion of the bond.
(6) (a) Any person with a valid legal interest which may be adversely affected by release of the bond or the responsible officer or head of any federal, state, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to these operations shall have the right to file written objections to the proposed release from bond with the division within 30 days after the last publication of the above notice.
(b) If written objections are filed and a conference is requested, the division shall inform all the interested parties of the time and place of the conference and hold an informal conference within 30 days after the request is filed with the division.
(c) The conference officer may convert the conference to a formal proceeding under the standards set forth by Section [63-46b-4] 63G-4-202. The matter shall be scheduled for hearing before the board and a hearing shall be held in accordance with the rules of practice and procedure of the board.
(d) A decision from the informal conference may be appealed to the board. The board shall hold a hearing pursuant to the rules of practice and procedure of the board.
Section 534. Section 40-10-21 is amended to read:
40-10-21
. Civil action to compel compliance with chapter -- Jurisdiction -- Venue -- Division and board as parties -- Court costs -- Security when temporary restraining order or injunction sought -- Other rights not affected -- Action for damages.(1) (a) Except as provided in Subsection (2), any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter against:
(i) the state or any other governmental instrumentality or agency to the extent permitted by the 11th Amendment to the United States Constitution or [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, which is alleged to be in violation of the provisions of this chapter or of any rule, order, or permit issued pursuant to it;
(ii) any person who is alleged to be in violation of any rule, order, or permit issued pursuant to this chapter; or
(iii) the division or board where there is alleged a failure of the division or board to perform any act or duty under this chapter which is not discretionary with the division or with the board.
(b) The district courts shall have jurisdiction without regard to the amount in controversy or the citizenship of the parties.
(2) No action may be commenced:
(a) under Subsection (1)(a)(i) or (ii):
(i) prior to 60 days after the plaintiff has given notice in writing of the violation to the division and to any alleged violator; or
(ii) if the attorney general has commenced and is diligently prosecuting a civil action in a court of the state to require compliance with the provisions of this chapter, or any rule, order, or permit issued pursuant to this chapter; or
(b) under Subsection (1)(a)(iii) prior to 60 days after the plaintiff has given notice in writing of the action to the board, in the manner as the board prescribes by rule, except that the action may be brought immediately after the notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
(3) (a) Any action concerning a violation of this chapter or the rules promulgated under it may be brought only in the judicial district in which the surface coal mining operation complained of is located.
(b) In the action, the division and board, if not a party, may intervene as a matter of right.
(4) (a) The court, in issuing any final order in any action brought pursuant to Subsection (1), may award costs of litigation, including attorney and expert witness fees, to any party whenever the court determines that award is appropriate.
(b) The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Utah Rules of Civil Procedure.
(5) Nothing in this section may restrict any right which any person, or class of persons, has under any statute or common law to seek enforcement of any of the provisions of this chapter and the rules promulgated under it, or to seek any other relief, including relief against the division and board.
(6) Any person who is injured in his person or property through the violation by an operator of any rule, order, or permit issued pursuant to this chapter may bring an action for damages, including reasonable attorney and expert witness fees, only in the judicial district in which the surface coal mining operation complained of is located. Nothing in this Subsection (6) shall affect the rights established by or limits imposed under Utah workmen's compensation laws.
Section 535. Section 40-10-30 is amended to read:
40-10-30
. Judicial review of rules or orders.(1) Judicial review of adjudicative proceedings under this chapter is governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and provisions of this chapter consistent with the Administrative Procedures Act.
(2) Judicial review of the board's rulemaking procedures and rules adopted under this chapter is governed by [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) An appeal from an order of the board shall be directly to the Utah Supreme Court and is not a trial de novo. The court shall set aside the board action if it is found to be:
(a) unreasonable, unjust, arbitrary, capricious, or an abuse of discretion;
(b) contrary to constitutional right, power, privilege, or immunity;
(c) in excess of statutory jurisdiction, authority, or limitations;
(d) not in compliance with procedure required by law;
(e) based upon a clearly erroneous interpretation or application of the law; or
(f) as to an adjudicative proceeding, unsupported by substantial evidence on the record.
(4) An action or appeal involving an order of the board shall be determined as expeditiously as feasible and in accordance with Section 78-2-2. The Utah Supreme Court shall determine the issues on both questions of law and fact and shall affirm or set aside the rule or order, enjoin or stay the effective date of agency action, or remand the cause to the board for further proceedings. Judicial review of disputed issues of fact shall be confined to the agency record. The court may, in its discretion, receive additional evidence for good cause shown.
(5) If the board fails to perform any act or duty under this chapter which is not discretionary, the aggrieved person may bring an action in the district court of the county in which the operation or proposed operation is located.
Section 536. Section 41-1a-115 is amended to read:
41-1a-115
. Division records -- Copies.(1) The division shall file each application received.
(2) The division shall keep a record of each registration on a calendar year basis as follows:
(a) under a distinctive registration number assigned to the vehicle, vessel, or outboard motor;
(b) alphabetically, under the name of the owner of the vehicle, vessel, or outboard motor;
(c) under the identification number of the vehicle, vessel, or outboard motor; and
(d) in any manner the division finds desirable for compiling statistical information or of comparative value for use in determining registration fees in future years.
(3) (a) The division shall maintain a current record of each certificate of title it issues.
(b) (i) The division shall file and retain every surrendered certificate of title and every application for title to permit the tracing of title of the vehicles designated in them.
(ii) The retention period for division records shall be set by the Division of Archives and Records Service in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(4) (a) The commission and officers of the division the commission designates may prepare under the seal of the division and deliver upon request a certified copy of any record of the division, including microfilmed records, charging a fee, determined by the commission pursuant to Section [63-38-3.2] 63J-1-303, for each document authenticated.
(b) The application shall include the requested information to identify the applicant.
(c) Each certified copy is admissible in any proceeding in any court in the same manner as the original.
(5) The division shall comply with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 537. Section 41-1a-116 is amended to read:
41-1a-116
. Records -- Access to records -- Fees.(1) (a) All motor vehicle title and registration records of the division are protected unless the division determines based upon a written request by the subject of the record that the record is public.
(b) In addition to the provisions of this section, access to all division records is permitted for all purposes described in the federal Driver's Privacy Protection Act of 1994, 18 U.S.C. Chapter 123.
(2) (a) Access to public records is determined by Section [63-2-201] 63G-2-201.
(b) A record designated as public under Subsection (1)(a) may be used for advertising or solicitation purposes.
(3) Access to protected records, except as provided in Subsection (4), is determined by Section [63-2-202] 63G-2-202.
(4) In addition to those persons granted access to protected records under Section [63-2-202] 63G-2-202, the division may disclose a protected record to a licensed private investigator, holding a valid agency or registrant license, with a legitimate business need, a person with a bona fide security interest, or the owner of a mobile home park subject to Subsection (5), only upon receipt of a signed acknowledgment that the person receiving that protected record may not:
(a) resell or disclose information from that record to any other person except as permitted in the federal Driver's Privacy Protection Act of 1994; or
(b) use information from that record for advertising or solicitation purposes.
(5) The division may disclose the name or address, or both, of the lienholder or mobile home owner of record, or both of them, to the owner of a mobile home park, if all of the following conditions are met:
(a) a mobile home located within the mobile home park owner's park has been abandoned under Section 57-16-13 or the resident is in default under the resident's lease;
(b) the mobile home park owner has conducted a reasonable search, but is unable to determine the name or address, or both, of the lienholder or mobile home owner of record; and
(c) the mobile home park owner has submitted a written statement to the division explaining the mobile home park owner's efforts to determine the name or address, or both, of the lienholder or mobile home owner of record before the mobile home park owner contacted the division.
(6) The division may provide protected information to a statistic gathering entity under Subsection (4) only in summary form.
(7) A person allowed access to protected records under Subsection (4) may request motor vehicle title or registration information from the division regarding any person, entity, or motor vehicle by submitting a written application on a form provided by the division.
(8) If a person regularly requests information for business purposes, the division may by rule allow the information requests to be made by telephone and fees as required under Subsection (9) charged to a division billing account to facilitate division service. The rules shall require that the:
(a) division determine if the nature of the business and the volume of requests merit the dissemination of the information by telephone;
(b) division determine if the credit rating of the requesting party justifies providing a billing account; and
(c) requestor submit to the division an application that includes names and signatures of persons authorized to request information by telephone and charge the fees to the billing account.
(9) (a) The division shall charge a reasonable search fee determined under Section [63-38-3.2] 63J-1-303 for the research of each record requested.
(b) Fees may not be charged for furnishing information to persons necessary for their compliance with this chapter.
(c) Law enforcement agencies have access to division records free of charge.
Section 538. Section 41-1a-117 is amended to read:
41-1a-117
. Adjudicative proceedings.The commission and the division shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in all adjudicative proceedings conducted under this chapter.
Section 539. Section 41-1a-119 is amended to read:
41-1a-119
. Emergency procedures for collection of fees.(1) If the commission finds that the owner or operator of a vehicle who is liable for the payment of any registration fee required by this chapter plans to depart quickly from the state, to remove his property from the state, to conceal himself or his property, or do any other act tending to prejudice or render wholly or partially ineffectual proceedings to collect the registration fees, the commission shall follow the emergency procedures set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and declare that the registration fees are immediately due and payable.
(2) When the commission issues its emergency order, the registration fees are immediately due and payable after notice is given to the owner or operator of the vehicle.
Section 540. Section 41-1a-231 is amended to read:
41-1a-231
. Special mobile equipment status.(1) "Special mobile equipment" status as defined under Section 41-1a-102 shall be approved by the Department of Transportation in consultation with the Motor Carrier Advisory Board created under Section 72-9-201.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation in consultation with the State Tax Commission shall make rules establishing procedures for application, identification, approval, denial, and appeal of special mobile equipment status.
Section 541. Section 41-1a-301 is amended to read:
41-1a-301
. Apportioned registration and licensing of interstate vehicles.(1) (a) An owner or operator of a fleet of commercial vehicles based in this state and operating in two or more jurisdictions may register commercial vehicles for operation under the International Registration Plan or the Uniform Vehicle Registration Proration and Reciprocity Agreement by filing an application with the division.
(b) The application shall include information that identifies the vehicle owner, the vehicle, the miles traveled in each jurisdiction, and other information pertinent to the registration of apportioned vehicles.
(c) Vehicles operated exclusively in this state may not be apportioned.
(2) (a) If no operations were conducted during the preceding year, the application shall contain a statement of the proposed operations and an estimate of annual mileage for each jurisdiction.
(b) The division may adjust the estimate if the division is not satisfied with its correctness.
(c) At renewal, the registrant shall use the actual mileage from the preceding year in computing fees due each jurisdiction.
(3) The registration fee for apportioned vehicles shall be determined as follows:
(a) divide the in-jurisdiction miles by the total miles generated during the preceding year;
(b) total the fees for each vehicle based on the fees prescribed in Section 41-1a-1206; and
(c) multiply the sum obtained under Subsection (3)(b) by the quotient obtained under Subsection (3)(a).
(4) Trailers or semitrailers of apportioned fleets may be listed separately as "trailer fleets" with the fees paid according to the total distance those trailers were towed in all jurisdictions during the preceding year mileage reporting period.
(5) (a) (i) When the proper fees have been paid and the property tax or in lieu fee has been cleared under Section 41-1a-206 or 41-1a-207, a registration card, annual decal, and where necessary, license plate, will be issued for each unit listed on the application.
(ii) An original registration must be carried in each vehicle at all times.
(b) Original registration cards for trailers or semitrailers may be carried in the power unit.
(c) (i) In lieu of a permanent registration card or license plate, the division may issue one temporary permit authorizing operation of new or unlicensed vehicles until the permanent registration is completed.
(ii) Once a temporary permit is issued, the registration process may not be cancelled. Registration must be completed and the fees and any property tax or in lieu fee due must be paid for the vehicle for which the permit was issued.
(iii) Temporary permits may not be issued for renewals.
(d) (i) The division shall issue one distinctive license plate that displays the letters APP for apportioned vehicles.
(ii) The plate shall be displayed on the front of an apportioned truck tractor or power unit or on the rear of any apportioned vehicle.
(iii) Distinctive decals displaying the word "apportioned" and the month and year of expiration shall be issued for each apportioned vehicle.
(e) A nonrefundable administrative fee, determined by the commission pursuant to Section [63-38-3.2] 63J-1-303, shall be charged for each temporary permit, registration, or both.
(6) Vehicles that are apportionally registered are fully registered for intrastate and interstate movements, providing the proper interstate and intrastate authority has been secured.
(7) (a) Vehicles added to an apportioned fleet after the beginning of the registration year shall be registered by applying the quotient under Subsection (3)(a) for the original application to the fees due for the remainder of the registration year.
(b) (i) The owner shall maintain and submit complete annual mileage for each vehicle in each jurisdiction, showing all miles operated by the lessor and lessee.
(ii) The fiscal mileage reporting period begins July 1, and continues through June 30 of the year immediately preceding the calendar year in which the registration year begins.
(c) (i) An owner-operator, who is a lessor, may be the registrant and the vehicle may be registered in the name of the owner-operator.
(ii) The identification plates and registration card shall be the property of the lessor and may reflect both the owner-operator's name and that of the carrier as lessee.
(iii) The allocation of fees shall be according to the operational records of the owner-operator.
(d) (i) The lessee may be the registrant of a leased vehicle at the option of the lessor.
(ii) If a lessee is the registrant of a leased vehicle, both the lessor's and lessee's name shall appear on the registration.
(iii) The allocation of fees shall be according to the records of the carrier.
(8) (a) Any registrant whose application for apportioned registration has been accepted shall preserve the records on which the application is based for a period of three years after the close of the registration year.
(b) The records shall be made available to the division upon request for audit as to accuracy of computations, payments, and assessments for deficiencies, or allowances for credits.
(c) An assessment for deficiency or claim for credit may not be made for any period for which records are no longer required.
(d) Interest in the amount prescribed by Section 59-1-402 shall be assessed or paid from the date due until paid on deficiencies found due after audit.
(e) Registrants with deficiencies are subject to the penalties under Section 59-1-401.
(f) The division may enter into agreements with other International Registration Plan jurisdictions for joint audits.
(9) (a) Except as provided in Subsection (9)(b), all state fees collected under this section shall be deposited in the Transportation Fund.
(b) The following fees may be used by the commission as a dedicated credit to cover the costs of electronic credentialing as provided in Section 41-1a-303:
(i) $5 of each temporary registration permit fee paid under Subsection (12)(a)(i) for a single unit; and
(ii) $10 of each temporary registration permit fee paid under Subsection (12)(a)(ii) for multiple units.
(10) If registration is for less than a full year, fees for apportioned registration shall be assessed according to Section 41-1a-1207.
(a) (i) If the registrant is replacing a vehicle for one withdrawn from the fleet and the new vehicle is of the same weight category as the replaced vehicle, the registrant must file a supplemental application.
(ii) A registration card that transfers the license plate to the new vehicle shall be issued.
(iii) When a replacement vehicle is of greater weight than the replaced vehicle, additional registration fees are due.
(b) If a vehicle is withdrawn from an apportioned fleet during the period for which it is registered, the registrant shall notify the division and surrender the registration card and license plate of the withdrawn vehicle.
(11) (a) An out-of-state carrier with an apportionally registered vehicle who has not presented a certificate of property tax or in lieu fee as required by Section 41-1a-206 or 41-1a-207, shall pay, at the time of registration, a proportional part of an equalized highway use tax computed as follows:
(i) Multiply the number of vehicles or combination vehicles registered in each weight class by the equivalent tax figure from the following tables:
Vehicle or Combination
Registered Weight Age of Vehicle Equivalent Tax
12,000 pounds or less 12 or more years $10
12,000 pounds or less 9 or more years but less than 12 years $50
12,000 pounds or less 6 or more years but less than 9 years $80
12,000 pounds or less 3 or more years but less than 6 years $110
12,000 pounds or less Less than 3 years $150
Vehicle or Combination Equivalent
Registered Weight Tax
12,001 - 18,000 pounds $150
18,001 - 34,000 pounds 200
34,001 - 48,000 pounds 300
48,001 - 64,000 pounds 450
64,001 pounds and over 600
(ii) Multiply the equivalent tax value for the total fleet determined under Subsection (11)(a)(i) by the fraction computed under Subsection (3) for the apportioned fleet for the registration year.
(b) Fees shall be assessed as provided in Section 41-1a-1207.
(12) (a) Commercial vehicles meeting the registration requirements of another jurisdiction may, as an alternative to full or apportioned registration, secure a temporary registration permit for a period not to exceed 96 hours or until they leave the state, whichever is less, for a fee of:
(i) $25 for a single unit; and
(ii) $50 for multiple units.
(b) A state temporary permit or registration fee is not required from nonresident owners or operators of vehicles or combination of vehicles having a gross laden weight of 26,000 pounds or less for each single unit or combination.
Section 542. Section 41-1a-407 is amended to read:
41-1a-407
. Plates issued to political subdivisions or state -- Use of "EX" letters -- Confidential information.(1) Except as provided in Subsection (2), each municipality, board of education, school district, state institution of learning, county, other governmental division, subdivision, or district, and the state shall:
(a) place a license plate displaying the letters, "EX" on every vehicle owned and operated by it or leased for its exclusive use; and
(b) display an identification mark designating the vehicle as the property of the entity in a conspicuous place on both sides of the vehicle.
(2) The entity need not display the "EX" license plate or the identification mark required by Subsection (1) if:
(a) the vehicle is in the direct service of the governor, lieutenant governor, attorney general, state auditor, or state treasurer of Utah;
(b) the vehicle is used in official investigative work where secrecy is essential;
(c) the vehicle is used in an organized Utah Highway Patrol operation that is:
(i) conducted within a county of the first or second class as defined under Section 17-50-501, unless no more than one unmarked vehicle is used for the operation;
(ii) approved by the Commissioner of Public Safety;
(iii) of a duration of 14 consecutive days or less; and
(iv) targeted toward careless driving, aggressive driving, and accidents involving:
(A) violations of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
(B) speeding violations for exceeding the posted speed limit by 21 or more miles per hour;
(C) speeding violations in a reduced speed school zone under Section 41-6a-604;
(D) violations of Section 41-6a-1002 related to pedestrian crosswalks; or
(E) violations of Section 41-6a-702 related to lane restrictions;
(d) the vehicle is provided to an official of the entity as part of a compensation package allowing unlimited personal use of that vehicle;
(e) the personal security of the occupants of the vehicle would be jeopardized if the "EX" license plate were in place; or
(f) the vehicle is used in routine enforcement on a state highway with four or more lanes involving:
(i) violations of Section 41-6a-701 related to operating a vehicle on the right side of a roadway;
(ii) violations of Section 41-6a-702 related to left lane restrictions;
(iii) violations of Section 41-6a-704 related to overtaking and passing vehicles proceeding in the same direction;
(iv) violations of Section 41-6a-711 related to following a vehicle at a safe distance; and
(v) violations of Section 41-6a-804 related to turning and changing lanes.
(3) Plates issued to Utah Highway Patrol vehicles may bear the capital letters "UHP," a beehive logo, and the call number of the trooper to whom the vehicle is issued.
(4) (a) The commission shall issue "EX" and "UHP" plates.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules establishing the procedure for application for and distribution of the plates.
(5) For a vehicle that qualifies for "EX" or "UHP" license plates, the entity is not required to display an annual registration decal.
(6) (a) Information shall be confidential for vehicles that are not required to display the "EX" license plate or the identification mark under Subsections (2)(a), (b), (d), and (e).
(b) (i) If a law enforcement officer's identity must be kept secret, his agency head may request in writing that the division remove the license plate information of the officer's personal vehicles from all public access files and place it in a confidential file until the assignment is completed.
(ii) The agency head shall notify the division when the assignment is completed.
(7) A peace officer engaged in an organized operation under Subsection (2)(c) shall be in a uniform clearly identifying the law enforcement agency the peace officer is representing during the operation.
Section 543. Section 41-1a-416 is amended to read:
41-1a-416
. Original issue license plates -- Alternative stickers -- Rulemaking.(1) The owner of a motor vehicle that is a model year 1973 or older may apply to the division for permission to display an original issue license plate of a format and type issued by the state in the same year as the model year of the vehicle.
(2) The owner of a motor vehicle who desires to display original issue license plates instead of license plates issued under Section 41-1a-401 shall:
(a) complete an application on a form provided by the division;
(b) supply and submit the original license plates that the owner desires to display to the division for approval; and
(c) pay the fees prescribed in Sections 41-1a-1206 and 41-1a-1211.
(3) The division, prior to approval of an application under this section, shall determine that the original issue license plates:
(a) are of a format and type issued by the state for use on a motor vehicle in this state;
(b) have numbers and characters that are unique and do not conflict with existing license plate series in this state;
(c) are legible, durable, and otherwise in a condition that serves the purposes of this chapter, except that original issue license plates are exempt from the provision of Section 41-1a-401 regarding reflectorization and Section 41-1a-403 regarding legibility from 100 feet; and
(d) are from the same year of issue as the model year of the motor vehicle on which they are to be displayed.
(4) An owner of a motor vehicle displaying original issue license plates approved under this section is not exempt from any other requirement of this chapter except as specified under this section.
(5) (a) An owner of a motor vehicle currently registered in this state whose original issue license plates are not approved by the division because of the requirement in Subsection (3)(b) may apply to the division for a sticker to allow the temporary display of the original issue license plates if:
(i) the plates otherwise comply with this section;
(ii) the plates are only displayed when the motor vehicle is used for participating in motor vehicle club activities, exhibitions, tours, parades, and similar activities and are not used for general daily transportation;
(iii) the license plates and registration issued under this chapter for normal use of the motor vehicle on the highways of this state are kept in the motor vehicle and shown to a peace officer on request; and
(iv) the sticker issued by the division under this subsection is properly affixed to the face of the original issue license plate.
(b) The sticker issued under this section shall be the size and form customarily furnished by the division.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules for the implementation of this section.
Section 544. Section 41-1a-418 (Superseded 10/01/07) is amended to read:
41-1a-418 (Superseded 10/01/07)
. Authorized special group license plates.(1) The division shall only issue special group license plates in accordance with this section through Section 41-1a-422 to a person who is specified under this section within the categories listed as follows:
(a) disability special group license plates issued in accordance with Section 41-1a-420;
(b) honor special group license plates, as in a war hero, which plates are issued for a:
(i) survivor of the Japanese attack on Pearl Harbor;
(ii) former prisoner of war;
(iii) recipient of a Purple Heart; or
(iv) disabled veteran;
(c) unique vehicle type special group license plates, as for historical, collectors value, or other unique vehicle type, which plates are issued for a:
(i) special interest vehicle;
(ii) vintage vehicle;
(iii) farm truck; or
(iv) vehicle powered by clean fuel and for which a current clean special fuel certificate is maintained as provided in Section 59-13-304;
(d) recognition special group license plates, as in a public official or an emergency service giver, which plates are issued for a:
(i) current member of the Legislature;
(ii) current member of the United States Congress;
(iii) current member of the National Guard;
(iv) licensed amateur radio operator;
(v) currently employed, volunteer, or retired firefighter;
(vi) emergency medical technician;
(vii) current member of a search and rescue team; or
(viii) current honorary consulate designated by the United States Department of State; and
(e) support special group license plates, as for a contributor to an institution or cause, which plates are issued for a contributor to:
(i) an institution's scholastic scholarship fund;
(ii) the Division of Wildlife Resources;
(iii) the Department of Veterans' Affairs;
(iv) the Division of Parks and Recreation;
(v) the Department of Agriculture and Food;
(vi) the Guardian Ad Litem Services Account and the Children's Museum of Utah;
(vii) the Boy Scouts of America;
(viii) spay and neuter programs through No More Homeless Pets in Utah;
(ix) the Boys and Girls Clubs of America; or
(x) Utah public education.
(2) Beginning January 1, 2003, the division may not issue a new type of special group license plate unless the division receives:
(a) a start-up fee established under Section [63-38-3.2] 63J-1-303 for production and administrative costs for providing the new special group license plates; or
(b) a legislative appropriation for the start-up fee provided under Subsection (2)(a).
(3) (a) A sponsoring organization that qualifies for tax-exempt status under Internal Revenue Code Section 501(c)(3) may request the commission to authorize a new type of special group license plate for the sponsoring organization. The sponsoring organization shall:
(i) collect a minimum of 200 applications; and
(ii) pay a start-up fee established under Section [63-38-3.2] 63J-1-303 for production and administrative costs for providing the new type of special group license plates.
(b) If the provisions of Subsection (3)(a) are met, the commission shall approve the request and the division shall:
(i) design a license plate in accordance with Section 41-1a-419; and
(ii) issue the new type of special group license plates.
Section 545. Section 41-1a-418 (Effective 10/01/07) is amended to read:
41-1a-418 (Effective 10/01/07)
. Authorized special group license plates.(1) The division shall only issue special group license plates in accordance with this section through Section 41-1a-422 to a person who is specified under this section within the categories listed as follows:
(a) disability special group license plates issued in accordance with Section 41-1a-420;
(b) honor special group license plates, as in a war hero, which plates are issued for a:
(i) survivor of the Japanese attack on Pearl Harbor;
(ii) former prisoner of war;
(iii) recipient of a Purple Heart;
(iv) disabled veteran; or
(v) recipient of a gold star award issued by the United States Secretary of Defense if the recipient is the spouse, parent, or sibling of a servicemember killed;
(c) unique vehicle type special group license plates, as for historical, collectors value, or other unique vehicle type, which plates are issued for a:
(i) special interest vehicle;
(ii) vintage vehicle;
(iii) farm truck; or
(iv) vehicle powered by clean fuel and for which a current clean special fuel certificate is maintained as provided in Section 59-13-304;
(d) recognition special group license plates, as in a public official or an emergency service giver, which plates are issued for a:
(i) current member of the Legislature;
(ii) current member of the United States Congress;
(iii) current member of the National Guard;
(iv) licensed amateur radio operator;
(v) currently employed, volunteer, or retired firefighter;
(vi) emergency medical technician;
(vii) current member of a search and rescue team; or
(viii) current honorary consulate designated by the United States Department of State; and
(e) support special group license plates, as for a contributor to an institution or cause, which plates are issued for a contributor to:
(i) an institution's scholastic scholarship fund;
(ii) the Division of Wildlife Resources;
(iii) the Department of Veterans' Affairs;
(iv) the Division of Parks and Recreation;
(v) the Department of Agriculture and Food;
(vi) the Guardian Ad Litem Services Account and the Children's Museum of Utah;
(vii) the Boy Scouts of America;
(viii) spay and neuter programs through No More Homeless Pets in Utah;
(ix) the Boys and Girls Clubs of America;
(x) Utah public education; or
(xi) programs that provide support to organizations that create affordable housing for those in severe need through the Division of Real Estate.
(2) Beginning January 1, 2003, the division may not issue a new type of special group license plate unless the division receives:
(a) a start-up fee established under Section [63-38-3.2] 63J-1-303 for production and administrative costs for providing the new special group license plates; or
(b) a legislative appropriation for the start-up fee provided under Subsection (2)(a).
(3) (a) A sponsoring organization that qualifies for tax-exempt status under Internal Revenue Code Section 501(c)(3) may request the commission to authorize a new type of special group license plate for the sponsoring organization. The sponsoring organization shall:
(i) collect a minimum of 200 applications; and
(ii) pay a start-up fee established under Section [63-38-3.2] 63J-1-303 for production and administrative costs for providing the new type of special group license plates.
(b) If the provisions of Subsection (3)(a) are met, the commission shall approve the request and the division shall:
(i) design a license plate in accordance with Section 41-1a-419; and
(ii) issue the new type of special group license plates.
Section 546. Section 41-1a-419 is amended to read:
41-1a-419
. Plate design -- Vintage vehicle certification and registration -- Personalized special group license plates -- Rulemaking.(1) (a) The design and maximum number of numerals or characters on special group license plates shall be determined by the division in accordance with the requirements under Subsection (1)(b).
(b) Each special group license plate shall display:
(i) the word Utah;
(ii) the name or identifying slogan of the special group;
(iii) a symbol decal not exceeding two positions in size representing the special group; and
(iv) the combination of letters, numbers, or both uniquely identifying the registered vehicle.
(2) (a) The division shall, after consultation with a representative designated by the special group, specify the word or words comprising the special group name and the symbol decal to be displayed upon the special group license plates.
(b) A special group license plate symbol decal may not be redesigned:
(i) unless the division receives a redesign fee established by the division under Section [63-38-3.2] 63J-1-303; and
(ii) more frequently than every five years.
(c) (i) Except as provided in Subsection (2)(c)(ii), a special group license plate symbol decal may not be reordered unless the division receives a symbol decal reorder fee established by the division under Section [63-38-3.2] 63J-1-303.
(ii) A recognition special group license plate symbol decal for a currently employed, volunteer, or retired firefighter issued in accordance with Subsection 41-1a-418(1)(d)(v) that is reordered on or after July 1, 2007, but on or before June 30, 2008, is exempt from the symbol decal reorder fee authorized under Subsection (2)(c)(i).
(3) The license plates issued for horseless carriages prior to July 1, 1992, are valid without renewal as long as the vehicle is owned by the registered owner and the license plates may not be recalled by the division.
(4) A person who meets the criteria established under Sections 41-1a-418 through 41-1a-422 for issuance of special group license plates may make application in the same manner provided in Sections 41-1a-410 and 41-1a-411 for personalized special group license plates.
(5) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(a) establish qualifying criteria for persons to receive, renew, or surrender special group license plates; and
(b) establish the maximum number of numerals or characters for special group license plates.
Section 547. Section 41-1a-420 is amended to read:
41-1a-420
. Disability special group license plates -- Application and qualifications -- Rulemaking.(1) The division shall issue a disability special group license plate, a temporary removable windshield placard, or a removable windshield placard to:
(a) a qualifying person with a disability; or
(b) the registered owner of a vehicle that an organization uses primarily for the transportation of persons with disabilities that limit or impair the ability to walk.
(2) (a) The initial application of a person with a disability shall be accompanied by the certification of a licensed physician:
(i) that the applicant meets the definition of a person with a disability that limits or impairs the ability to walk as defined in the federal Uniform System for Parking for Persons with Disabilities, 23 C.F.R. Ch. 11, Subch. B, Pt. 1235.2 (1991); and
(ii) containing the period of time that the physician determines the applicant will have the disability, not to exceed six months in the case of a temporary disability.
(b) The division shall issue a person with a disability special group license plate or a removable windshield placard to a person with a permanent disability.
(c) The issuance of a person with a disability special group license plate does not preclude the issuance to the same applicant of a removable windshield placard.
(d) On request of an applicant with a disability special group license plate, temporary removable windshield placard, or a removable windshield placard the division shall issue one additional placard.
(e) A disability special group license plate, temporary removable windshield placard, or removable windshield placard may be used to allow one motorcycle to share a parking space reserved for persons with a disability if:
(i) the person with a disability:
(A) is using a motorcycle; and
(B) displays on the motorcycle a disability special group license plate, temporary removable windshield placard, or a removable windshield placard;
(ii) the person who shares the parking space assists the person with a disability with the parking accommodation; and
(iii) the parking space is sufficient size to accommodate both motorcycles without interfering with other parking spaces or traffic movement.
(3) (a) The temporary removable windshield placard or removable windshield placard shall be hung from the front windshield rearview mirror when the vehicle is parked in a parking space reserved for persons with disabilities so that it is visible from the front and rear of the vehicle.
(b) If a motorcycle is being used, the temporary removable windshield placard or removable windshield placard shall be displayed in plain sight on or near the handle bars of the motorcycle.
(4) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(a) establish qualifying criteria for persons to receive, renew, or surrender special group license plates, a temporary removable windshield placard, or a removable windshield placard in accordance with this section;
(b) establish the maximum number of numerals or characters for disability special group license plates; and
(c) require all temporary removable windshield placards and removable windshield placards to include:
(i) an identification number;
(ii) an expiration date not to exceed:
(A) six months for a temporary removable windshield placard; and
(B) two years for a removable windshield placard; and
(iii) the seal or other identifying mark of the division.
Section 548. Section 41-1a-422 (Superseded 10/01/07) is amended to read:
41-1a-422 (Superseded 10/01/07)
. Support special group license plates -- Contributor -- Voluntary contribution collection procedures.(1) As used in this section:
(a) (i) Except as provided in Subsection (1)(a)(ii), "contributor" means a person who has donated or in whose name at least $25 has been donated to:
(A) a scholastic scholarship fund of a single named institution;
(B) the Department of Veterans' Affairs for veterans' programs;
(C) the Division of Wildlife Resources for the Wildlife Resources Account created in Section 23-14-13, for conservation of wildlife and the enhancement, preservation, protection, access, and management of wildlife habitat;
(D) the Department of Agriculture and Food for the benefit of conservation districts;
(E) the Division of Parks and Recreation for the benefit of snowmobile programs;
(F) the Guardian Ad Litem Services Account and the Children's Museum of Utah, with the donation evenly divided between the two;
(G) the Boy Scouts of America for the benefit of a Utah Boy Scouts of America council as specified by the contributor;
(H) No More Homeless Pets in Utah for distribution to organizations or individuals that provide spay and neuter programs that subsidize the sterilization of domestic animals;
(I) the Utah Alliance of Boys and Girls Clubs, Inc. to provide and enhance youth development programs; or
(J) the Utah Association of Public School Foundations to support public education.
(ii) For a veterans' special group license plate, "contributor" means a person who has donated or in whose name at least a $25 donation at the time of application and $10 annual donation thereafter has been made.
(b) "Institution" means a state institution of higher education as defined under Section 53B-3-102 or a private institution of higher education in the state accredited by a regional or national accrediting agency recognized by the United States Department of Education.
(2) (a) An applicant for original or renewal collegiate special group license plates under Subsection (1)(a)(i) must be a contributor to the institution named in the application and present the original contribution verification form under Subsection (2)(b) or make a contribution to the division at the time of application under Subsection (3).
(b) An institution with a support special group license plate shall issue to a contributor a verification form designed by the commission containing:
(i) the name of the contributor;
(ii) the institution to which a donation was made;
(iii) the date of the donation; and
(iv) an attestation that the donation was for a scholastic scholarship.
(c) The state auditor may audit each institution to verify that the moneys collected by the institutions from contributors are used for scholastic scholarships.
(d) After an applicant has been issued collegiate license plates or renewal decals, the commission shall charge the institution whose plate was issued, a fee determined in accordance with Section [63-38-3.2] 63J-1-303 for management and administrative expenses incurred in issuing and renewing the collegiate license plates.
(e) If the contribution is made at the time of application, the contribution shall be collected, treated, and deposited as provided under Subsection (3).
(3) (a) An applicant for original or renewal support special group license plates under this section must be a contributor to the sponsoring organization associated with the license plate.
(b) This contribution shall be:
(i) unless collected by the named institution under Subsection (2), collected by the division;
(ii) considered a voluntary contribution for the funding of the activities specified under this section and not a motor vehicle registration fee; and
(iii) deposited into the appropriate account less actual administrative costs associated with issuing the license plates.
(c) The donation described in Subsection (1)(a) must be made in the 12 months prior to registration or renewal of registration.
(d) The donation described in Subsection (1)(a) shall be a one-time donation made to the division when issuing original:
(i) snowmobile license plates; or
(ii) conservation license plates.
(4) Veterans' license plates shall display one of the symbols representing the Army, Navy, Air Force, Marines, Coast Guard, or American Legion.
Section 549. Section 41-1a-422 (Effective 10/01/07) is amended to read:
41-1a-422 (Effective 10/01/07)
. Support special group license plates -- Contributor -- Voluntary contribution collection procedures.(1) As used in this section:
(a) (i) Except as provided in Subsection (1)(a)(ii), "contributor" means a person who has donated or in whose name at least $25 has been donated to:
(A) a scholastic scholarship fund of a single named institution;
(B) the Department of Veterans' Affairs for veterans' programs;
(C) the Division of Wildlife Resources for the Wildlife Resources Account created in Section 23-14-13, for conservation of wildlife and the enhancement, preservation, protection, access, and management of wildlife habitat;
(D) the Department of Agriculture and Food for the benefit of conservation districts;
(E) the Division of Parks and Recreation for the benefit of snowmobile programs;
(F) the Guardian Ad Litem Services Account and the Children's Museum of Utah, with the donation evenly divided between the two;
(G) the Boy Scouts of America for the benefit of a Utah Boy Scouts of America council as specified by the contributor;
(H) No More Homeless Pets in Utah for distribution to organizations or individuals that provide spay and neuter programs that subsidize the sterilization of domestic animals;
(I) the Utah Alliance of Boys and Girls Clubs, Inc. to provide and enhance youth development programs;
(J) the Utah Association of Public School Foundations to support public education; or
(K) the Utah Housing Opportunity Restricted Account created in Section 61-2-28 to assist people who have severe housing needs.
(ii) (A) For a veterans' special group license plate, "contributor" means a person who has donated or in whose name at least a $25 donation at the time of application and $10 annual donation thereafter has been made.
(B) For a Utah Housing Opportunity special group license plate, "contributor" means a person who:
(I) has donated or in whose name at least $30 has been donated at the time of application and annually after the time of application; and
(II) is a member of a trade organization for real estate licensees that has more than 15,000 Utah members.
(b) "Institution" means a state institution of higher education as defined under Section 53B-3-102 or a private institution of higher education in the state accredited by a regional or national accrediting agency recognized by the United States Department of Education.
(2) (a) An applicant for original or renewal collegiate special group license plates under Subsection (1)(a)(i) must be a contributor to the institution named in the application and present the original contribution verification form under Subsection (2)(b) or make a contribution to the division at the time of application under Subsection (3).
(b) An institution with a support special group license plate shall issue to a contributor a verification form designed by the commission containing:
(i) the name of the contributor;
(ii) the institution to which a donation was made;
(iii) the date of the donation; and
(iv) an attestation that the donation was for a scholastic scholarship.
(c) The state auditor may audit each institution to verify that the moneys collected by the institutions from contributors are used for scholastic scholarships.
(d) After an applicant has been issued collegiate license plates or renewal decals, the commission shall charge the institution whose plate was issued, a fee determined in accordance with Section [63-38-3.2] 63J-1-303 for management and administrative expenses incurred in issuing and renewing the collegiate license plates.
(e) If the contribution is made at the time of application, the contribution shall be collected, treated, and deposited as provided under Subsection (3).
(3) (a) An applicant for original or renewal support special group license plates under this section must be a contributor to the sponsoring organization associated with the license plate.
(b) This contribution shall be:
(i) unless collected by the named institution under Subsection (2), collected by the division;
(ii) considered a voluntary contribution for the funding of the activities specified under this section and not a motor vehicle registration fee; and
(iii) deposited into the appropriate account less actual administrative costs associated with issuing the license plates.
(c) The donation described in Subsection (1)(a) must be made in the 12 months prior to registration or renewal of registration.
(d) The donation described in Subsection (1)(a) shall be a one-time donation made to the division when issuing original:
(i) snowmobile license plates; or
(ii) conservation license plates.
(4) Veterans' license plates shall display one of the symbols representing the Army, Navy, Air Force, Marines, Coast Guard, or American Legion.
Section 550. Section 41-1a-522 is amended to read:
41-1a-522
. Record of nonconforming vehicle -- Access -- Brand -- Unbranding.(1) The definitions in Section 41-3-407 apply to this section.
(2) Upon receipt of a copy of an original certificate of title, Manufacturer's Statement of Origin, or other evidence of ownership of a nonconforming vehicle in accordance with Section 41-3-409, the division shall:
(a) establish a record of the reported nonconforming vehicle;
(b) consider the record a public record with public access under Sections 41-1a-116 and [63-2-201] 63G-2-201;
(c) allow access to the record upon written application to the division; and
(d) upon request for a new certificate of title for a nonconforming vehicle, brand the certificate of title with the words "MANUFACTURER BUYBACK NONCONFORMING VEHICLE" clearly and conspicuously on the face of the new certificate of title.
(3) Upon receipt of the branded certificate of title, the division shall:
(a) follow the procedures established in Subsection (2); or
(b) if the record of the nonconforming vehicle contains an application for an unbranded certificate of title that meets the requirements of Section 41-3-409.5:
(i) update the record to show that all nonconformities have been cured;
(ii) consider the record a public record with public access under Sections 41-1a-116 and [63-2-201] 63G-2-201;
(iii) allow access to the complete record upon written application to the division; and
(iv) upon request for a new certificate of title, issue an unbranded certificate of title.
Section 551. Section 41-1a-712 is amended to read:
41-1a-712
. Foreign vehicle disclosure requirements -- Penalties -- Civil damages.(1) A person may not knowingly sell or offer for sale in this state any vehicle that was initially delivered for disposition or sale in a country other than the United States of America unless, prior to the sale, the person provides written notice to the purchaser on a separate form furnished by the Motor Vehicle Enforcement Division that indicates:
(a) that the vehicle was initially delivered for disposition or sale in a country outside of the United States as indicated on the Manufacturer's Statement of Origin or similar ownership document;
(b) the country where the vehicle was initially delivered for the disposition or sale; and
(c) any other information required by the commission under rules made by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) A person who violates this section is guilty of a class B misdemeanor.
(3) (a) In addition to any other penalties, a purchaser may bring a civil action to recover damages resulting from a seller's failure to provide notice as required under this section.
(b) The amount of damages that may be recovered in a civil action are the actual damages or $1,500, whichever is greater.
Section 552. Section 41-1a-1007 is amended to read:
41-1a-1007
. Fees.(1) A certified vehicle inspector may charge a fee in accordance with Section [63-38-3.2] 63J-1-303 for each inspection under Subsection 41-1a-1002(1).
(2) To cover the costs of inspection and to defray the cost of certification, the fee charged under this section by a certified vehicle inspector shall be retained by the Motor Vehicle Enforcement Division as a dedicated credit.
Section 553. Section 41-1a-1010 is amended to read:
41-1a-1010
. Permit required to dismantle vehicle -- Duties upon receiving the permit -- Exceptions.(1) (a) A person may not scrap, dismantle, destroy, or otherwise change any vehicle so that it loses its character, until the person submits to the division:
(i) the certificate of title for the vehicle for cancellation; and
(ii) an application for a permit to dismantle the vehicle.
(b) Upon approval of the application, the division shall issue a permit to dismantle the vehicle.
(2) Except as provided in Subsection (3), if a permit to dismantle is issued under this section, the vehicle shall be destroyed and may not be rebuilt or reconstructed and may not be retitled or registered.
(3) A vehicle for which a permit to dismantle has been issued by the division may be retitled and the permit to dismantle rescinded if:
(a) prior to receiving a dismantling permit the vehicle had a Utah certificate of title;
(b) the vehicle has not been dismantled;
(c) an investigator for the Motor Vehicle Enforcement Division of the commission determines after a physical inspection of the vehicle that it is the same vehicle for which the permit to dismantle was issued; and
(d) the applicant pays the fee under Subsection (4).
(4) The commission may collect a fee established in accordance with Section [63-38-3.2] 63J-1-303 to cover the expenses of an inspection under Subsection (3).
Section 554. Section 41-1a-1101 is amended to read:
41-1a-1101
. Seizure -- Circumstances where permitted -- Impound lot standards.(1) The division or any peace officer, without a warrant, may seize and take possession of any vehicle, vessel, or outboard motor:
(a) that the division or the peace officer has reason to believe has been stolen;
(b) on which any identification number has been defaced, altered, or obliterated;
(c) that has been abandoned in accordance with Section 41-6a-1408;
(d) for which the applicant has written a check for registration or title fees that has not been honored by the applicant's bank and that is not paid within 30 days;
(e) that is placed on the water with improper registration; or
(f) that is being operated on a highway:
(i) with registration that has been expired for more than three months;
(ii) having never been properly registered by the current owner; or
(iii) with registration that is suspended or revoked.
(2) If necessary for the transportation of a seized vessel, the vessel's trailer may be seized to transport and store the vessel.
(3) Any peace officer seizing or taking possession of a vehicle, vessel, or outboard motor under this section shall comply with the provisions of Section 41-6a-1406.
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules setting standards for public garages, impound lots, and impound yards that may be used by peace officers and the division.
(b) The standards shall be equitable, reasonable, and unrestrictive as to the number of public garages, impound lots, or impound yards per geographical area.
(5) (a) Except as provided under Subsection (5)(b), a person may not operate or allow to be operated a vehicle stored in a public garage, impound lot, or impound yard regulated under this part without prior written permission of the owner of the vehicle.
(b) Incidental and necessary operation of a vehicle to move the vehicle from one parking space to another within the facility and that is necessary for the normal management of the facility is not prohibited under this Subsection (5)(a).
(6) A person who violates the provisions of Subsection (5) is guilty of a class C misdemeanor.
(7) The division or the peace officer who seizes a vehicle shall record the mileage shown on the vehicle's odometer at the time of seizure, if:
(a) the vehicle is equipped with an odometer; and
(b) the odometer reading is accessible to the division or the peace officer.
Section 555. Section 41-1a-1211 is amended to read:
41-1a-1211
. License plate fees -- Application fees for issuance and renewal of personalized and special group license plates -- Replacement fee for license plates -- Postage fees.(1) Except as provided in Subsection (11), a license plate fee of $5 per set shall be paid to the division for the issuance of any new license plate under Part 4, License Plates and Registration Indicia. The license plate fee shall be deposited as follows:
(a) $4 as provided in Section 41-1a-1201; and
(b) $1 in the Transportation Fund.
(2) An applicant for original issuance of personalized license plates issued under Section 41-1a-410 shall pay a $50 per set license plate application fee in addition to the fee required in Subsection (1).
(3) Beginning July 1, 2003, a person who applies for a special group license plate shall pay a $5 fee for the original set of license plates in addition to the fee required under Subsection (1).
(4) An applicant for original issuance of personalized special group license plates shall pay the license plate application fees required in Subsection (2) in addition to the license plate fees and license plate application fees established under Subsections (1) and (3).
(5) An applicant for renewal of personalized license plates issued under Section 41-1a-410 shall pay a $10 per set application fee.
(6) A fee of $5 shall be paid to the division for the replacement of any license plate issued under Part 4, License Plates and Registration Indicia. The license plate fee shall be deposited as follows:
(a) $4 as provided in Section 41-1a-1201; and
(b) $1 in the Transportation Fund.
(7) The division may charge a fee established under Section [63-38-3.2] 63J-1-303 to recover its costs for the replacement of decals issued under Section 41-1a-418.
(8) The division may charge a fee established under Section [63-38-3.2] 63J-1-303 to recover the cost of issuing stickers under Section 41-1a-416.
(9) In addition to any other fees required by this section, the division shall assess a fee established under Section [63-38-3.2] 63J-1-303 to cover postage expenses if new or replacement license plates are mailed to the applicant.
(10) The fees required under this section are separate from and in addition to registration fees required under Section 41-1a-1206.
(11) (a) An applicant for a license plate issued under Section 41-1a-407 is not subject to the license plate fee under Subsection (1).
(b) An applicant for a Purple Heart special group license plate issued in accordance with Section 41-1a-421 is exempt from the fees under Subsections (1), (3), and (7).
Section 556. Section 41-1a-1212 is amended to read:
41-1a-1212
. Fee for replacement of license plate decals.A fee established in accordance with Section [63-38-3.2] 63J-1-303 shall be paid to the division for the replacement of a license plate decal required by Section 41-1a-402.
Section 557. Section 41-1a-1221 is amended to read:
41-1a-1221
. Fees to cover the cost of electronic payments.(1) As used in this section:
(a) "Electronic payment" means use of any form of payment processed through electronic means, including credit cards, debit cards, and automatic clearinghouse transactions.
(b) "Electronic payment fee" means the fee assessed to defray:
(i) the charge, discount fee, or processing fee charged by credit card companies or processing agents to process an electronic payment; or
(ii) costs associated with the purchase of equipment necessary for processing electronic payments.
(2) (a) The Motor Vehicle Division may collect an electronic payment fee on all registrations and renewals of registration under Subsections 41-1a-1206(1)(a), (1)(b), and (2).
(b) The fee described in Subsection (2)(a):
(i) shall be imposed regardless of the method of payment for a particular transaction; and
(ii) need not be separately identified from the fees imposed for registration and renewals of registration under Subsections 41-1a-1206(1)(a), (1)(b), and (2).
(3) The division shall establish the fee according to the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(4) A fee imposed under this section:
(a) shall be used by the division as a dedicated credit to cover the costs of electronic payments;
(b) is nonlapsing; and
(c) is not subject to Subsection [63-38a-104] 63J-2-202(2).
Section 558. Section 41-3-105 is amended to read:
41-3-105
. Administrator's powers and duties -- Administrator and investigators to be law enforcement officers.(1) The administrator may make rules to carry out the purposes of this chapter and Sections 41-1a-1001 through 41-1a-1007 according to the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) (a) The administrator may employ clerks, deputies, and assistants necessary to discharge the duties under this chapter and may designate the duties of those clerks, deputies, and assistants.
(b) The administrator, assistant administrator, and all investigators shall be law enforcement officers certified by peace officer standards and training as required by Section 53-13-103.
(3) (a) The administrator may investigate any suspected or alleged violation of:
(i) this chapter;
(ii) Title 41, Chapter 1a, Motor Vehicle Act;
(iii) any law concerning motor vehicle fraud; or
(iv) any rule made by the administrator.
(b) The administrator may bring an action in the name of the state against any person to enjoin a violation found under Subsection (3)(a).
(4) (a) The administrator may prescribe forms to be used for applications for licenses.
(b) The administrator may require information from the applicant concerning the applicant's fitness to be licensed.
(c) Each application for a license shall contain:
(i) if the applicant is an individual, the name and residence address of the applicant and the trade name, if any, under which he intends to conduct business;
(ii) if the applicant is a partnership, the name and residence address of each partner, whether limited or general, and the name under which the partnership business will be conducted;
(iii) if the applicant is a corporation, the name of the corporation, and the name and residence address of each of its principal officers and directors;
(iv) a complete description of the principal place of business, including:
(A) the municipality, with the street and number, if any;
(B) if located outside of any municipality, a general description so that the location can be determined; and
(C) any other places of business operated and maintained by the applicant in conjunction with the principal place of business; and
(v) if the application is for a new motor vehicle dealer's license, the name of each motor vehicle the applicant has been enfranchised to sell or exchange, the name and address of the manufacturer or distributor who has enfranchised the applicant, and the names and addresses of the individuals who will act as salespersons under authority of the license.
(5) The administrator may adopt a seal with the words "Motor Vehicle Enforcement Administrator, State of Utah," to authenticate the acts of his office.
(6) (a) The administrator may require that the licensee erect or post signs or devices on his principal place of business and any other sites, equipment, or locations operated and maintained by the licensee in conjunction with his business.
(b) The signs or devices shall state the licensee's name, principal place of business, type and number of licenses, and any other information that the administrator considers necessary to identify the licensee.
(c) The administrator may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, determining allowable size and shape of signs or devices, their lettering and other details, and their location.
(7) (a) The administrator shall provide for quarterly meetings of the advisory board and may call special meetings.
(b) Notices of all meetings shall be sent to each member not fewer than five days prior to the meeting.
(8) The administrator, the officers and inspectors of the division designated by the commission, and peace officers shall:
(a) make arrests upon view and without warrant for any violation committed in their presence of any of the provisions of this chapter, or Title 41, Chapter 1a, Motor Vehicle Act;
(b) when on duty, upon reasonable belief that a motor vehicle, trailer, or semitrailer is being operated in violation of any provision of Title 41, Chapter 1a, Motor Vehicle Act, require the driver of the vehicle to stop, exhibit his driver's license and the registration card issued for the vehicle and submit to an inspection of the vehicle, the license plates, and registration card;
(c) serve all warrants relating to the enforcement of the laws regulating the operation of motor vehicles, trailers, and semitrailers;
(d) investigate traffic accidents and secure testimony of witnesses or persons involved; and
(e) investigate reported thefts of motor vehicles, trailers, and semitrailers.
(9) The administrator may contract with a public prosecutor to provide additional prosecution of this chapter.
Section 559. Section 41-3-109 is amended to read:
41-3-109
. Adjudicative proceedings -- Hearings.(1) The commission, the division, the board, and the administrator shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in all adjudicative proceedings conducted under the authority of this chapter and Sections 41-1a-1001 through 41-1a-1008.
(2) The administrator may request the attendance of the board at any hearing, or he may direct that any hearing be held before the board.
Section 560. Section 41-3-202 is amended to read:
41-3-202
. Licenses -- Classes and scope.(1) A new motor vehicle dealer's license permits the licensee to:
(a) offer for sale, sell, or exchange new motor vehicles if the licensee possesses a franchise from the manufacturer of the motor vehicle offered for sale, sold, or exchanged by the licensee;
(b) offer for sale, sell, or exchange used motor vehicles;
(c) operate as a body shop; and
(d) dismantle motor vehicles.
(2) A used motor vehicle dealer's license permits the licensee to:
(a) offer for sale, sell, or exchange used motor vehicles;
(b) operate as a body shop; and
(c) dismantle motor vehicles.
(3) A new motorcycle, off-highway vehicle, and small trailer dealer's license permits the licensee to:
(a) offer for sale, sell, or exchange new motorcycles, off-highway vehicles, or small trailers if the licensee possesses a franchise from the manufacturer of the motorcycle, off-highway vehicle, or small trailer offered for sale, sold, or exchanged by the licensee;
(b) offer for sale, sell, or exchange used motorcycles, off-highway vehicles, or small trailers; and
(c) dismantle motorcycles, off-highway vehicles, or small trailers.
(4) A used motorcycle, off-highway vehicle, and small trailer dealer's license permits the licensee to:
(a) offer for sale, sell, or exchange used motorcycles, off-highway vehicles, and small trailers; and
(b) dismantle motorcycles, off-highway vehicles, or small trailers.
(5) A salesperson's license permits the licensee to act as a motor vehicle salesperson and is valid for employment with only one dealer at a time.
(6) (a) A manufacturer's license permits the licensee to construct or assemble motor vehicles subject to registration under Title 41, Chapter 1a, Motor Vehicle Act, at an established place of business and to remanufacture motor vehicles.
(b) Under rules made by the administrator, the licensee may issue and install vehicle identification numbers on manufactured motor vehicles.
(c) The licensee may franchise and appoint dealers to sell manufactured motor vehicles by notifying the division of the franchise or appointment.
(7) A transporter's license permits the licensee to transport or deliver motor vehicles subject to registration under Title 41, Chapter 1a, Motor Vehicle Act, from a manufacturing, assembling, or distributing point or from a dealer, to dealers, distributors, or sales agents of a manufacturer or remanufacturer, to or from detail or repair shops, and to financial institutions or places of storage from points of repossession.
(8) A dismantler's license permits the licensee to dismantle motor vehicles subject to registration under Title 41, Chapter 1a, Motor Vehicle Act, for the purpose of reselling parts or for salvage, or selling dismantled or salvage vehicles to a crusher or other dismantler.
(9) A distributor or factory branch and distributor branch's license permits the licensee to sell and distribute new motor vehicles, parts, and accessories to their franchised dealers.
(10) A representative's license, for factory representatives or distributor representatives permits the licensee to contact his authorized dealers for the purpose of making or promoting the sale of motor vehicles, parts, and accessories.
(11) (a) (i) A remanufacturer's license permits the licensee to construct, reconstruct, assemble, or reassemble motor vehicles subject to registration under Title 41, Chapter 1a, Motor Vehicle Act, from used or new motor vehicles or parts.
(ii) Evidence of ownership of parts and motor vehicles used in remanufacture shall be available to the division upon demand.
(b) Under rules made by the administrator, the licensee may issue and install vehicle identification numbers on remanufactured motor vehicles.
(12) A crusher's license permits the licensee to engage in the business of crushing or shredding motor vehicles subject to registration under Title 41, Chapter 1a, Motor Vehicle Act, for the purpose of reducing the useable materials and metals to a more compact size for recycling.
(13) A body shop's license permits the licensee to rebuild, restore, repair, or paint primarily the body of motor vehicles damaged by collision or natural disaster, and to dismantle motor vehicles.
(14) A special equipment dealer's license permits the licensee to:
(a) buy incomplete new motor vehicles with a gross vehicle weight of 12,000 or more pounds from a new motor vehicle dealer and sell the new vehicle with the special equipment installed without a franchise from the manufacturer;
(b) offer for sale, sell, or exchange used motor vehicles;
(c) operate as a body shop; and
(d) dismantle motor vehicles.
(15) (a) A salvage vehicle buyer license permits the licensee to bid on or purchase a vehicle with a salvage certificate as defined in Section 41-1a-1001 at any motor vehicle auction.
(b) A salvage vehicle buyer license may only be issued to a motor vehicle dealer, dismantler, or body shop who qualifies under rules made by the division and is licensed in any state as a motor vehicle dealer, dismantler, or body shop.
(c) The division may not issue more than two salvage vehicle buyer licenses to any one dealer, dismantler, or body shop.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the administrator shall make rules establishing qualifications of an applicant for a salvage vehicle buyer license. The criteria shall include:
(i) business history;
(ii) salvage vehicle qualifications;
(iii) ability to properly handle and dispose of environmental hazardous materials associated with salvage vehicles; and
(iv) record in demonstrating compliance with the provisions of this chapter.
Section 561. Section 41-3-209 is amended to read:
41-3-209
. Administrator's findings -- Suspension and revocation of license.(1) If the administrator finds that an applicant is not qualified to receive a license, a license may not be granted.
(2) (a) If the administrator finds that there is reasonable cause to deny, suspend, or revoke a license issued under this chapter, the administrator shall deny, suspend, or revoke the license.
(b) Reasonable cause for denial, suspension, or revocation of a license includes, in relation to the applicant or license holder or any of its partners, officers, or directors:
(i) lack of a principal place of business;
(ii) lack of a sales tax license required under Title 59, Chapter 12, Sales and Use Tax Act;
(iii) lack of a bond in effect as required by this chapter;
(iv) current revocation or suspension of a dealer, dismantler, auction, or salesperson license issued in another state;
(v) nonpayment of required fees;
(vi) making a false statement on any application for a license under this chapter or for special license plates;
(vii) a violation of any state or federal law involving motor vehicles;
(viii) a violation of any state or federal law involving controlled substances;
(ix) charges filed with any county attorney, district attorney, or U.S. attorney in any court of competent jurisdiction for a violation of any state or federal law involving motor vehicles;
(x) a violation of any state or federal law involving fraud; or
(xi) a violation of any state or federal law involving a registerable sex offense under Section 77-27-21.5.
(c) Any action taken by the administrator under Subsection (2)(b)(ix) shall remain in effect until a final resolution is reached by the court involved or the charges are dropped.
(3) If the administrator finds that the license holder has been convicted by a court of competent jurisdiction of violating any of the provisions of this chapter or any rules made by the administrator, or finds other reasonable cause, the administrator may, by complying with the emergency procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act:
(a) suspend the license on terms and for a period of time he finds reasonable; or
(b) revoke the license.
(4) (a) After suspending or revoking a license, the administrator may take reasonable action to:
(i) notify the public that the licensee is no longer in business; and
(ii) prevent the former licensee from violating the law by conducting business without a license.
(b) Action under Subsection (4)(a) may include signs, banners, barriers, locks, bulletins, and notices.
(c) Any business being conducted incidental to the business for which the former licensee was licensed may continue to operate subject to the preventive action taken under this subsection.
Section 562. Section 41-3-301 is amended to read:
41-3-301
. Sale by dealer, sale by auction -- Temporary permit -- Delivery of certificate of title or origin -- Notice to division.(1) (a) Each dealer licensed under Part 2, Licensing, upon the sale and delivery of any motor vehicle for which a temporary permit is issued under Section 41-3-302 shall within 45 days submit a certificate of title or manufacturer's certificate of origin for that motor vehicle, endorsed according to law, to the Motor Vehicle Division, accompanied by all documents required to obtain a new certificate of title and registration in the new owner's name.
(b) If a temporary permit is not issued, the certificate of title or manufacturer's certificate of origin shall be delivered to the vendee, endorsed according to law, within 48 hours, unless the vendee is a dealer or dismantler in which case the title or manufacturer's certificate of origin shall be delivered within 21 days.
(c) (i) A motor vehicle consigned to an auction and sold is considered sold by the consignor to the auction and then sold by the auction to the consignee.
(ii) Both the consignor and auction are subject to this section.
(d) (i) (A) A motor vehicle consigned to a wholesale motor vehicle auction and sold to a licensed dealer or dismantler is considered sold by the consignor to the licensed dealer or dismantler.
(B) Both the consignor and the wholesale motor vehicle auction are subject to the title delivery requirements of Subsection (1)(b).
(C) The consignor, or the wholesale motor vehicle auction as the consignor's agent, shall endorse the certificate of title according to law. By endorsing the certificate of title as agent of the consignor, the wholesale motor vehicle auction does not become the owner, seller, or assignor of title.
(ii) (A) A wholesale motor vehicle auction may purchase or sell motor vehicles in its own name.
(B) If a wholesale motor vehicle auction purchases or sells a motor vehicle in its own name, the wholesale motor vehicle auction is subject to Subsections (1)(a) and (1)(b).
(2) (a) (i) Each dealer licensed under Part 2, Licensing, upon the sale and delivery of a motor vehicle for which a temporary permit is issued under Section 41-3-302, shall within 45 days give written notice of the sale to the Motor Vehicle Division upon a form provided by the Motor Vehicle Division.
(ii) The notice shall contain:
(A) the date of the sale;
(B) the names and addresses of the dealer and the purchaser;
(C) a description of the motor vehicle;
(D) the motor vehicle's odometer reading at the time of the sale; and
(E) other information required by the division.
(b) If no temporary permit is issued, the notice shall be filed with the division within 45 days after the sale, and a duplicate copy shall be given to the purchaser at the time of sale, unless the purchaser is a dealer or dismantler.
(c) The administrator may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, providing that the notice required under Subsections (2)(a) and (2)(b) may be filed in electronic form or on magnetic media.
Section 563. Section 41-3-302 is amended to read:
41-3-302
. Temporary permits -- Purchasers of motor vehicles -- Penalty for use after expiration -- Sale and rescission.(1) (a) (i) A dealer or the division may issue a temporary permit.
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the administrator shall makes rules for the issuance of a temporary permit under Subsection (1)(a)(i).
(iii) The division shall furnish the forms for temporary permits issued by dealers under Subsection (1)(a)(i).
(b) A dealer may issue a temporary permit to a bona fide purchaser of a motor vehicle for a period not to exceed 45 days on a motor vehicle sold to the purchaser by the dealer.
(c) The dealer is responsible and liable for the registration fee of each motor vehicle for which the permit is issued.
(d) All issued temporary permits that are outstanding after 45 days from the date they are issued are delinquent and a penalty equal to the registration fee shall be collected from the issuing dealer.
(2) If a temporary permit is issued by a dealer under this section and the sale of the motor vehicle is subsequently rescinded, the temporary permit may be voided and the issuing dealer is not liable for the registration fee or penalty.
Section 564. Section 41-3-304 is amended to read:
41-3-304
. Temporary permits -- Temporary sports event registration certificate -- Suspension or revocation of dealer's authority to issue -- Return of temporary permits to division -- Refunds -- Appeal.(1) The division may suspend or revoke a dealer's authority to issue a temporary permit or a temporary sports event registration certificate under this part if the division determines the dealer has failed to comply with this chapter or with any rules made by the commission under this part.
(2) (a) Suspension or revocation of authority to issue a temporary permit or a temporary sports event registration certificate takes effect immediately upon written notification to the dealer by the division.
(b) Upon notification, the dealer shall immediately return all temporary permits to the division.
(c) Subject to Subsection (2)(d), if the authority to issue a temporary permit under Section 41-3-302 is revoked or suspended for more than 30 days, the dealer may apply for a refund of the money paid to the division only for temporary permits described in Section 41-3-302 that are returned prior to issuance.
(d) Temporary permits being returned may not have ever been issued, written on, or separated from their stubs, and shall be in useable condition.
(3) If the division suspends or revokes a dealer's authority to issue a temporary permit or a temporary sports event registration certificate as provided in this section, each of the following is a violation of this chapter and grounds for automatic suspension of the dealer's license:
(a) failure to return a temporary permit to the division as provided in this section; or
(b) issuing a:
(i) temporary permit; or
(ii) temporary sports event registration certificate.
(4) (a) A dealer may appeal the division's suspension or revocation by filing a written appeal with the administrator within ten days of the suspension or revocation.
(b) Upon receiving the dealer's written appeal, the administrator shall set a hearing for not more than 20 days from the date the written appeal is received.
(c) A hearing or appeal under this section shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 565. Section 41-3-306 is amended to read:
41-3-306
. Temporary sports event registration -- Definitions -- Issuance -- Fees -- Expiration -- Rulemaking authority.(1) As used in this section:
(a) "Distributor-provided vehicle" means a motor vehicle:
(i) that has never been titled or registered in any state; and
(ii) the use of which is donated by a distributor licensed under Part 2, Licensing, through a dealer licensed under Part 2, Licensing.
(b) (i) "Event period" means a time period:
(A) during which a sports event takes place;
(B) not to exceed 180 consecutive calendar days; and
(C) specified by the division on a temporary sports event registration certificate.
(ii) "Event period" may include one or more of the following time periods if the division determines that good cause exists for including the time period within the event period:
(A) a reasonable time period before a sports event as determined by the division; or
(B) a reasonable time period after a sports event as determined by the division.
(c) (i) Notwithstanding Section 41-3-102 and except as provided in Subsection (1)(c)(ii), "motor vehicle" means a motor vehicle that is subject to the uniform fee imposed by Section 59-2-405.1.
(ii) "Motor vehicle" does not include a state-assessed commercial vehicle as defined in Section 59-2-102.
(d) (i) "Sports event" means an amateur or professional:
(A) sports:
(I) game;
(II) race; or
(III) contest; or
(B) athletic:
(I) game;
(II) race; or
(III) contest.
(ii) "Sports event" includes a game, race, or contest described in Subsection (1)(d)(i) that is:
(A) an independent game, race, or contest; or
(B) a part of another event or activity regardless of whether the other event or activity is an event or activity relating to sports or athletics.
(e) "Temporary sports event registration certificate" means a motor vehicle certificate of registration issued by the division to a dealer in accordance with this section.
(2) Beginning on September 1, 2001, the division may register a motor vehicle for an event period by issuing to a dealer licensed under Part 2, Licensing, a temporary sports event registration certificate if the division determines that:
(a) the motor vehicle is a distributor-provided vehicle;
(b) the motor vehicle will be used for a sports event within the state during the event period; and
(c) the dealer provides the division an application stating:
(i) the person to whom the distributor is donating use of the motor vehicle;
(ii) the motor vehicle identification number;
(iii) the motor vehicle:
(A) make;
(B) model; and
(C) year;
(iv) the name of the sports event;
(v) the beginning date and ending date of the sports event; and
(vi) any other information the division requires.
(3) If the division issues a temporary sports event registration certificate to a dealer licensed under Part 2, Licensing:
(a) the division:
(i) shall specify the event period on the temporary sports event registration certificate; and
(ii) may specify any other information on the temporary sports event registration certificate as determined by the division; and
(b) the dealer shall for each motor vehicle for which the division issues a temporary sports event registration certificate:
(i) pay the:
(A) registration fees required by Chapter 1a, Part 12, Fee and Tax Requirements; and
(B) uniform fee required by Section 59-2-405.1; and
(ii) place the temporary sports event registration certificate in the rear license plate holder of the motor vehicle.
(4) A temporary sports event registration certificate issued by the division under this section is valid for the event period specified on the temporary sports event registration certificate.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(a) specifying the information to be provided to the division by a dealer or a person using a distributor-provided vehicle in connection with the issuance of a temporary sports event registration certificate;
(b) specifying the form for a temporary sports event registration certificate; or
(c) defining the terms:
(i) "reasonable time period before a sports event"; and
(ii) "reasonable time period after a sports event."
Section 566. Section 41-3-601 is amended to read:
41-3-601
. Fees.(1) To pay for administering and enforcing this chapter, the administrator shall collect fees determined by the commission under Section [63-38-3.2] 63J-1-303 for each of the following:
(a) new motor vehicle dealer's license;
(b) used motor vehicle dealer's license;
(c) new motorcycle, off-highway vehicle, and small trailer dealer;
(d) used motorcycle, off-highway vehicle, and small trailer dealer;
(e) motor vehicle salesperson's license;
(f) motor vehicle salesperson's transfer or reissue fee;
(g) motor vehicle manufacturer's license;
(h) motor vehicle transporter's license;
(i) motor vehicle dismantler's license;
(j) motor vehicle crusher's license;
(k) motor vehicle remanufacturer's license;
(l) body shop's license;
(m) distributor or factory branch and distributor branch's license;
(n) representative's license;
(o) dealer plates;
(p) dismantler plates;
(q) manufacturer plates;
(r) transporter plates;
(s) damaged plate replacement;
(t) in-transit permits;
(u) loaded demonstration permits;
(v) additional place of business;
(w) special equipment dealer's license;
(x) temporary permits; and
(y) temporary sports event registration certificates.
(2) (a) To pay for training certified vehicle inspectors and enforcement under Sections 41-1a-1001 through 41-1a-1008, the State Tax Commission shall establish and the administrator shall collect inspection fees determined by the commission under Section [63-38-3.2] 63J-1-303.
(b) The division shall use fees collected under Subsection (2)(a) as nonlapsing dedicated credits to be used toward the costs of the division.
(3) (a) At the time of application, the administrator shall collect a fee of $200 for each salvage vehicle buyer license.
(b) The administrator may retain a portion of the fee under Subsection (3)(a) to offset the administrator's actual costs of administering and enforcing salvage vehicle buyer licenses.
(4) The division shall use fees collected under Subsections (1)(x) and (y) as nonlapsing dedicated credits to be used toward the costs of the division.
Section 567. Section 41-3-604 is amended to read:
41-3-604
. Fee to cover the cost of electronic payments.(1) As used in this section:
(a) "Electronic payment" has the same meaning as defined in Section 41-1a-1221.
(b) "Electronic payment fee" has the same meaning as defined in Section 41-1a-1221.
(2) (a) The division may collect a fee to cover the cost of electronic payments on the following transactions:
(i) each purchase or renewal of a license under Section 41-3-202;
(ii) each purchase of a book of temporary permits under Section 41-3-302;
(iii) each penalty issued for a delinquent temporary permit under Section 41-3-302;
(iv) each purchase of an in-transit permit under Section 41-3-305;
(v) each purchase of a loaded demonstration permit under Section 41-3-502;
(vi) each purchase of a license plate under Section 41-3-503; and
(vii) each purchase of a salvage vehicle buyer license under Section 41-3-202.
(b) The fee described in Subsection (2)(a):
(i) shall be imposed regardless of the method of payment for a particular transaction; and
(ii) need not be separately identified from the fees and penalty described in Subsections (2)(a)(i) through (vii).
(3) The division shall establish the fee under Subsection (2)(a) according to the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(4) A fee imposed under this section:
(a) shall be used by the division as a dedicated credit to cover the costs of electronic payments;
(b) is nonlapsing; and
(c) is not subject to Subsection [63-38a-104] 63J-2-202(2).
Section 568. Section 41-6a-212 is amended to read:
41-6a-212
. Emergency vehicles -- Policy regarding vehicle pursuits -- Applicability of traffic law to highway work vehicles -- Exemptions.(1) Subject to Subsections (2) through (5), the operator of an authorized emergency vehicle may exercise the privileges granted under this section when:
(a) responding to an emergency call;
(b) in the pursuit of an actual or suspected violator of the law; or
(c) responding to but not upon returning from a fire alarm.
(2) The operator of an authorized emergency vehicle may:
(a) park or stand, irrespective of the provisions of this chapter;
(b) proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) exceed the maximum speed limits, unless prohibited by a local highway authority under Section 41-6a-208; or
(d) disregard regulations governing direction of movement or turning in specified directions.
(3) (a) Except as provided in Subsection (3)(b), privileges granted under this section to the operator of an authorized emergency vehicle, who is not involved in a vehicle pursuit, apply only when:
(i) the operator of the vehicle sounds an audible signal under Section 41-6a-1625; or
(ii) uses a visual signal with emergency lights in accordance with rules made under Section 41-6a-1601, which is visible from in front of the vehicle.
(b) An operator of an authorized emergency vehicle may exceed the maximum speed limit when engaged in normal patrolling activities with the purpose of identifying and apprehending violators.
(4) Privileges granted under this section to the operator of an authorized emergency vehicle involved in any vehicle pursuit apply only when:
(a) the operator of the vehicle:
(i) sounds an audible signal under Section 41-6a-1625; and
(ii) uses a visual signal with emergency lights in accordance with rules made under Section 41-6a-1601, which is visible from in front of the vehicle;
(b) the public agency employing the operator of the vehicle has, in effect, a written policy which describes the manner and circumstances in which any vehicle pursuit should be conducted and terminated;
(c) the operator of the vehicle has been trained in accordance with the written policy described in Subsection (4)(b); and
(d) the pursuit policy of the public agency is in conformance with standards established under Subsection (5).
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Public Safety shall make rules providing minimum standards for all emergency pursuit policies that are adopted by public agencies authorized to operate emergency pursuit vehicles.
(6) The privileges granted under this section do not relieve the operator of an authorized emergency vehicle of the duty to act as a reasonably prudent emergency vehicle operator in like circumstances.
(7) Except for Sections 41-6a-210, 41-6a-502, and 41-6a-528, this chapter does not apply to persons, motor vehicles, and other equipment while actually engaged in work on the surface of a highway.
Section 569. Section 41-6a-301 is amended to read:
41-6a-301
. Standards and specifications for uniform system of traffic-control devices and school crossing guards.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation shall make rules consistent with this chapter adopting standards and establishing specifications for a uniform system of traffic-control devices used on a highway.
(2) The standards and specifications adopted under Subsection (1) shall:
(a) include provisions for school crossing zones and use of school crossing guards; and
(b) correlate with, and where possible conform to, the system set forth in the most recent edition of the "Manual on Uniform Traffic Control Devices for Streets and Highways" and other standards issued or endorsed by the federal highway administrator.
Section 570. Section 41-6a-303 is amended to read:
41-6a-303
. Definition of reduced speed school zone -- Operation of warning lights -- School crossing guard requirements -- Responsibility provisions -- Rulemaking authority.(1) As used in this section "reduced speed school zone" means a designated length of a highway extending from a school zone speed limit sign with warning lights operating to an end school zone sign.
(2) The Department of Transportation for state highways and local highway authorities for highways under their jurisdiction:
(a) shall establish reduced speed school zones at elementary schools after written assurance by a local highway authority that the local highway authority complies with Subsections (3) and (4); and
(b) may establish reduced speed school zones for secondary schools at the request of the local highway authority.
(3) For all reduced speed school zones on highways, including state highways within the jurisdictional boundaries of a local highway authority, the local highway authority shall:
(a) (i) provide shuttle service across highways for school children; or
(ii) provide, train, and supervise school crossing guards in accordance with this section;
(b) provide for the:
(i) operation of reduced speed school zones, including providing power to warning lights and turning on and off the warning lights as required under Subsections (4) and (5); and
(ii) maintenance of reduced speed school zones except on state highways as provided in Section 41-6a-302; and
(c) notify the Department of Transportation of reduced speed school zones on state highways that are in need of maintenance.
(4) While children are going to or leaving school during opening and closing hours all reduced speed school zones shall have:
(a) the warning lights operating on each school zone speed limit sign; and
(b) a school crossing guard present if the reduced speed school zone is for an elementary school.
(5) The warning lights on a school zone speed limit sign may not be operating except as provided under Subsection (4).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation shall make rules establishing criteria and specifications for the:
(a) establishment, location, and operation of school crosswalks, school zones, and reduced speed school zones;
(b) training, use, and supervision of school crossing guards at elementary schools and secondary schools; and
(c) content and implementation of child access routing plans under Section 53A-3-402.
(7) Each local highway authority shall pay for providing, training, and supervising school crossing guards in accordance with this section.
Section 571. Section 41-6a-403 (Superseded 07/01/08) is amended to read:
41-6a-403 (Superseded 07/01/08)
. Vehicle accidents -- Investigation and report of operator security -- Agency action if no security -- Surrender of plates -- Penalties.(1) (a) Upon request of a peace officer investigating an accident involving a motor vehicle, the operator of the motor vehicle shall provide evidence of the owner's or operator's security required under Section 41-12a-301.
(b) The evidence of owner's or operator's security includes information specified under Section 41-12a-303.2.
(2) The peace officer shall record on a form approved by the department:
(a) the information provided by the operator;
(b) whether the operator provided insufficient or no information;
(c) whether the officer finds reasonable cause to believe that any information given is not correct; and
(d) whether other information available to the peace officer indicates that owner's or operator's security is in effect.
(3) The peace officer shall deposit all completed forms with the peace officer's law enforcement agency, which shall forward the forms to the department no later than ten days after receipt.
(4) (a) The department shall within ten days of receipt of the forms from the law enforcement agency take action as follows:
(i) if the operator provided no information under Subsection (1) and other information available to the peace officer does not indicate that owner's or operator's security is in effect, the department shall take direct action under Subsection 53-3-221(12); or
(ii) if the peace officer noted or the department determines that there is reasonable cause to believe that the information given under Subsection (1) is not correct, the department shall contact directly the insurance company or other provider of security as described in Section 41-12a-303.2 and request verification of the accuracy of the information submitted as of the date of the accident.
(b) The department may require the verification under Subsection (4)(a)(ii) to be in a form specified by the department.
(c) The insurance company or other provider of security shall return the verification to the department within 30 days of receipt of the request.
(d) If the department does not receive verification within 35 days after sending the request, or within the 35 days receives notice that the information was not correct, the department shall take action under Subsection 53-3-221(12).
(5) (a) The owner of a vehicle with unexpired license plates for which security is not provided as required under this chapter shall return the plates for the vehicle to the Motor Vehicle Division unless specifically permitted by statute to retain them.
(b) If the owner fails to return the plates as required, the plates shall be confiscated under Section 53-3-226.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules for the enforcement of this section.
(7) A person is guilty of a class B misdemeanor, and shall be fined not less than $100, who:
(a) when requested to provide security information under Subsection (1), or Section 41-12a-303.2, provides false information;
(b) falsely represents to the department that security required under this chapter is in effect; or
(c) sells a vehicle to avoid the penalties of this section as applicable either to himself or a third party.
Section 572. Section 41-6a-403 (Effective 07/01/08) is amended to read:
41-6a-403 (Effective 07/01/08)
. Vehicle accidents -- Investigation and report of operator security -- Agency action if no security -- Surrender of plates -- Penalties.(1) (a) Upon request of a peace officer investigating an accident involving a motor vehicle, the operator of the motor vehicle shall provide evidence of the owner's or operator's security required under Section 41-12a-301.
(b) The evidence of owner's or operator's security includes information specified under Section 41-12a-303.2.
(2) The peace officer shall record on a form approved by the department:
(a) the information provided by the operator;
(b) whether the operator provided insufficient or no information;
(c) whether the officer finds reasonable cause to believe that any information given is not correct; and
(d) whether other information available to the peace officer indicates that owner's or operator's security is in effect.
(3) The peace officer shall deposit all completed forms with the peace officer's law enforcement agency, which shall forward the forms to the department no later than ten days after receipt.
(4) (a) The department shall within ten days of receipt of the forms from the law enforcement agency take action as follows:
(i) if the operator provided no information under Subsection (1) and other information available to the peace officer does not indicate that owner's or operator's security is in effect, the department shall take direct action under Subsection 53-3-221(13); or
(ii) if the peace officer noted or the department determines that there is reasonable cause to believe that the information given under Subsection (1) is not correct, the department shall contact directly the insurance company or other provider of security as described in Section 41-12a-303.2 and request verification of the accuracy of the information submitted as of the date of the accident.
(b) The department may require the verification under Subsection (4)(a)(ii) to be in a form specified by the department.
(c) The insurance company or other provider of security shall return the verification to the department within 30 days of receipt of the request.
(d) If the department does not receive verification within 35 days after sending the request, or within the 35 days receives notice that the information was not correct, the department shall take action under Subsection 53-3-221(13).
(5) (a) The owner of a vehicle with unexpired license plates for which security is not provided as required under this chapter shall return the plates for the vehicle to the Motor Vehicle Division unless specifically permitted by statute to retain them.
(b) If the owner fails to return the plates as required, the plates shall be confiscated under Section 53-3-226.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules for the enforcement of this section.
(7) A person is guilty of a class B misdemeanor, and shall be fined not less than $100, who:
(a) when requested to provide security information under Subsection (1), or Section 41-12a-303.2, provides false information;
(b) falsely represents to the department that security required under this chapter is in effect; or
(c) sells a vehicle to avoid the penalties of this section as applicable either to himself or a third party.
Section 573. Section 41-6a-404 is amended to read:
41-6a-404
. Accident reports -- When confidential -- Insurance policy information -- Use as evidence -- Penalty for false information.(1) As used in this section:
(a) "Agent" means:
(i) a person's attorney;
(ii) a person's insurer;
(iii) a general acute hospital, as defined in Section 26-21-2, that:
(A) has an emergency room; and
(B) is providing or has provided emergency services to the person in relation to the accident; or
(iv) any other individual or entity with signed permission from the person to receive the person's accident report.
(b) "Accompanying data" means all materials gathered by the investigating peace officer in an accident investigation including:
(i) the identity of witnesses and, if known, contact information;
(ii) witness statements;
(iii) photographs and videotapes;
(iv) diagrams; and
(v) field notes.
(2) Except as provided in Subsection (3), all accident reports required in this part to be filed with the department:
(a) are without prejudice to the reporting individual;
(b) are protected and for the confidential use of the department or other state, local, or federal agencies having use for the records for official governmental statistical, investigative, and accident prevention purposes; and
(c) may be disclosed only in a statistical form that protects the privacy of any person involved in the accident.
(3) (a) Subject to the provisions of this section, the department or the responsible law enforcement agency employing the peace officer that investigated the accident shall disclose an accident report to:
(i) a person involved in the accident, excluding a witness to the accident;
(ii) a person suffering loss or injury in the accident;
(iii) an agent, parent, or legal guardian of a person described in Subsections (3)(a)(i) and (ii);
(iv) subject to Subsection (3)(d), a member of the press or broadcast news media;
(v) a state, local, or federal agency that uses the records for official governmental, investigative, or accident prevention purposes;
(vi) law enforcement personnel when acting in their official governmental capacity; and
(vii) a licensed private investigator.
(b) The responsible law enforcement agency employing the peace officer that investigated the accident:
(i) shall in compliance with Subsection (3)(a):
(A) disclose an accident report; or
(B) upon written request disclose an accident report and its accompanying data within ten business days from receipt of a written request for disclosure; or
(ii) may withhold an accident report, and any of its accompanying data if disclosure would jeopardize an ongoing criminal investigation or criminal prosecution.
(c) In accordance with Subsection (3)(a), the department or the responsible law enforcement agency employing the investigating peace officer shall disclose whether any person or vehicle involved in an accident reported under this section was covered by a vehicle insurance policy, and the name of the insurer.
(d) Information provided to a member of the press or broadcast news media under Subsection (3)(a)(iv) may only include:
(i) the name, age, sex, and city of residence of each person involved in the accident;
(ii) the make and model year of each vehicle involved in the accident;
(iii) whether or not each person involved in the accident was covered by a vehicle insurance policy;
(iv) the location of the accident; and
(v) a description of the accident that excludes personal identifying information not listed in Subsection (3)(d)(i).
(e) The department shall disclose to any requesting person the following vehicle accident history information, excluding personal identifying information, in bulk electronic form:
(i) any vehicle identifying information that is electronically available, including the make, model year, and vehicle identification number of each vehicle involved in an accident;
(ii) the date of the accident; and
(iii) any electronically available data which describes the accident, including a description of any physical damage to the vehicle.
(f) The department may establish a fee under Section [63-38-3.2] 63J-1-303 based on the fair market value of the information for providing bulk vehicle accident history information under Subsection (3)(e).
(4) (a) Except as provided in Subsection (4)(b), accident reports filed under this section may not be used as evidence in any civil or criminal trial arising out of an accident.
(b) (i) Upon demand of any party to the trial or upon demand of any court, the department shall furnish a certificate showing that a specified accident report has or has not been made to the department in compliance with law.
(ii) If the report has been made, the certificate furnished by the department shall show:
(A) the date, time, and location of the accident;
(B) the names and addresses of the drivers;
(C) the owners of the vehicles involved; and
(D) the investigating peace officers.
(iii) The reports may be used as evidence when necessary to prosecute charges filed in connection with a violation of Subsection (5).
(5) A person who gives information in reports as required in this part knowing or having reason to believe that the information is false is guilty of a class A misdemeanor.
(6) The department and the responsible law enforcement agency employing the investigating peace officer may charge a reasonable fee determined by the department under Section [63-38-3.2] 63J-1-303 for the cost incurred in disclosing an accident report or an accident report and any of its accompanying data under Subsections (3)(a) and (b).
Section 574. Section 41-6a-514 is amended to read:
41-6a-514
. Procedures -- Adjudicative proceedings.The department shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 575. Section 41-6a-518 is amended to read:
41-6a-518
. Ignition interlock devices -- Use -- Probationer to pay cost -- Impecuniosity -- Fee.(1) As used in this section:
(a) "Commissioner" means the commissioner of the Department of Public Safety.
(b) "Ignition interlock system" or "system" means a constant monitoring device or any similar device certified by the commissioner that prevents a motor vehicle from being started or continuously operated without first determining the driver's breath alcohol concentration.
(c) "Probation provider" means the supervisor and monitor of the ignition interlock system required as a condition of probation who contracts with the court in accordance with Subsections 41-6a-507(2) and (3).
(2) (a) In addition to any other penalties imposed under Sections 41-6a-503 and 41-6a-505, and in addition to any requirements imposed as a condition of probation, the court may require that any person who is convicted of violating Section 41-6a-502 and who is granted probation may not operate a motor vehicle during the period of probation unless that motor vehicle is equipped with a functioning, certified ignition interlock system installed and calibrated so that the motor vehicle will not start or continuously operate if the operator's blood alcohol concentration exceeds a level ordered by the court.
(b) If a person convicted of violating Section 41-6a-502 was under the age of 21 when the violation occurred, the court shall order the installation of the ignition interlock system as a condition of probation.
(c) The division shall post the ignition interlock restriction on the electronic record available to law enforcement.
(d) This section does not apply to a person convicted of a violation of Section 41-6a-502 whose violation involves drugs other than alcohol.
(3) If the court imposes the use of an ignition interlock system as a condition of probation, the court shall:
(a) stipulate on the record the requirement for and the period of the use of an ignition interlock system;
(b) order that an ignition interlock system be installed on each motor vehicle owned or operated by the probationer, at the probationer's expense;
(c) immediately notify the Driver License Division and the person's probation provider of the order; and
(d) require the probationer to provide proof of compliance with the court's order to the probation provider within 30 days of the order.
(4) (a) The probationer shall provide timely proof of installation within 30 days of an order imposing the use of a system or show cause why the order was not complied with to the court or to the probationer's probation provider.
(b) The probation provider shall notify the court of failure to comply under Subsection (4)(a).
(c) For failure to comply under Subsection (4)(a) or upon receiving the notification under Subsection (4)(b), the court shall order the Driver License Division to suspend the probationer's driving privileges for the remaining period during which the compliance was imposed.
(d) Cause for failure to comply means any reason the court finds sufficiently justifiable to excuse the probationer's failure to comply with the court's order.
(5) (a) Any probationer required to install an ignition interlock system shall have the system monitored by the manufacturer or dealer of the system for proper use and accuracy at least semiannually and more frequently as the court may order.
(b) (i) A report of the monitoring shall be issued by the manufacturer or dealer to the court or the person's probation provider.
(ii) The report shall be issued within 14 days following each monitoring.
(6) (a) If an ignition interlock system is ordered installed, the probationer shall pay the reasonable costs of leasing or buying and installing and maintaining the system.
(b) A probationer may not be excluded from this section for inability to pay the costs, unless:
(i) the probationer files an affidavit of impecuniosity; and
(ii) the court enters a finding that the probationer is impecunious.
(c) In lieu of waiver of the entire amount of the cost, the court may direct the probationer to make partial or installment payments of costs when appropriate.
(d) The ignition interlock provider shall cover the costs of waivers by the court under this Subsection (6).
(7) (a) If a probationer is required in the course and scope of employment to operate a motor vehicle owned by the probationer's employer, the probationer may operate that motor vehicle without installation of an ignition interlock system only if:
(i) the motor vehicle is used in the course and scope of employment;
(ii) the employer has been notified that the employee is restricted; and
(iii) the employee has proof of the notification in his possession while operating the employer's motor vehicle.
(b) (i) To the extent that an employer-owned motor vehicle is made available to a probationer subject to this section for personal use, no exemption under this section shall apply.
(ii) A probationer intending to operate an employer-owned motor vehicle for personal use and who is restricted to the operation of a motor vehicle equipped with an ignition interlock system shall notify the employer and obtain consent in writing from the employer to install a system in the employer-owned motor vehicle.
(c) A motor vehicle owned by a business entity that is all or partly owned or controlled by a probationer subject to this section is not a motor vehicle owned by the employer and does not qualify for an exemption under this Subsection (7).
(8) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall make rules setting standards for the certification of ignition interlock systems.
(b) The standards under Subsection (8)(a) shall require that the system:
(i) not impede the safe operation of the motor vehicle;
(ii) have features that make circumventing difficult and that do not interfere with the normal use of the motor vehicle;
(iii) require a deep lung breath sample as a measure of breath alcohol concentration;
(iv) prevent the motor vehicle from being started if the driver's breath alcohol concentration exceeds a specified level;
(v) work accurately and reliably in an unsupervised environment;
(vi) resist tampering and give evidence if tampering is attempted;
(vii) operate reliably over the range of motor vehicle environments; and
(viii) be manufactured by a party who will provide liability insurance.
(c) The commissioner may adopt in whole or in part, the guidelines, rules, studies, or independent laboratory tests relied upon in certification of ignition interlock systems by other states.
(d) A list of certified systems shall be published by the commissioner and the cost of certification shall be borne by the manufacturers or dealers of ignition interlock systems seeking to sell, offer for sale, or lease the systems.
(e) (i) In accordance with Section [63-38-3.2] 63J-1-303, the commissioner may establish an annual dollar assessment against the manufacturers of ignition interlock systems distributed in the state for the costs incurred in certifying.
(ii) The assessment under Subsection (8)(e)(i) shall be apportioned among the manufacturers on a fair and reasonable basis.
(9) There shall be no liability on the part of, and no cause of action of any nature shall arise against, the state or its employees in connection with the installation, use, operation, maintenance, or supervision of an interlock ignition system as required under this section.
Section 576. Section 41-6a-702 is amended to read:
41-6a-702
. Left lane restrictions -- Exceptions -- Other lane restrictions -- Penalties.(1) As used in this section and Section 41-6a-704, "general purpose lane" means a highway lane open to vehicular traffic but does not include a designated:
(a) high occupancy vehicle (HOV) lane; or
(b) auxiliary lane that begins as a freeway on-ramp and ends as part of the next freeway off-ramp.
(2) On a freeway or section of a freeway which has three or more general purpose lanes in the same direction, a person may not operate a vehicle in the left most general purpose lane if the person's:
(a) vehicle is drawing a trailer or semitrailer regardless of size; or
(b) vehicle or combination of vehicles has a gross vehicle weight of 12,001 or more pounds.
(3) Subsection (2) does not apply to a person operating a vehicle who is:
(a) preparing to turn left or taking a different highway split or an exit on the left;
(b) responding to emergency conditions;
(c) avoiding actual or potential traffic moving onto the highway from an acceleration or merging lane; or
(d) following direction signs that direct use of a designated lane.
(4) (a) A highway authority may designate a specific lane or lanes of travel for any type of vehicle on a highway or portion of a highway under its jurisdiction for the:
(i) safety of the public;
(ii) efficient maintenance of a highway; or
(iii) use of high occupancy vehicles.
(b) The lane designation under Subsection (4)(a) is effective when appropriate signs giving notice are erected on the highway or portion of the highway.
(5) (a) Subject to Subsection (5)(b), the lane designation under Subsection (4)(a) shall allow a vehicle with clean fuel special group license plates issued in accordance with Section 41-1a-418 to travel in lanes designated for the use of high occupancy vehicles regardless of the number of occupants to the extent authorized or permitted by federal law or federal regulation.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation may make rules to allow a vehicle with clean fuel special group license plates issued in accordance with Section 41-1a-418 to travel in lanes designated for the use of high occupancy vehicles regardless of the number of occupants to the extent authorized or permitted by federal law or federal regulation.
(6) A person who operates a vehicle in violation of Subsection (2) or in violation of the restrictions made under Subsection (4) is guilty of a class C misdemeanor.
Section 577. Section 41-6a-1304 is amended to read:
41-6a-1304
. School buses -- Rules regarding design and operation.(1) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation by and with the advice of the State Board of Education and the Department of Public Safety shall adopt and enforce rules, not inconsistent with this chapter, to govern the design and operation of all school buses in this state when:
(i) owned and operated by any school district;
(ii) privately owned and operated under contract with a school district; or
(iii) privately owned for use by a private school.
(b) The rules under this Subsection (1) shall by reference be made a part of any contract with a school district or private school to operate a school bus.
(2) Every school district or private school, its officers and employees, and every person employed under contract by a school district or private school shall be subject to the rules under Subsection (1).
Section 578. Section 41-6a-1307 is amended to read:
41-6a-1307
. School bus parking zones -- Establishment -- Uniform markings -- Penalty.(1) As used in this section, "school bus parking zone" means a parking space that is clearly identified as reserved for use by a school bus.
(2) A highway authority for highways under its jurisdiction and school boards for roadways located on school property may establish and locate school bus parking zones in accordance with specifications established under Subsection (3).
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation, after consultation with local highway authorities and school boards which may include input from school traffic safety committees established under Section 53A-3-402, shall make rules establishing specifications for uniform signage or markings to clearly identify school bus parking zones.
(4) A person may not stop, stand, or park a vehicle other than a school bus, whether occupied or not, in a clearly identified school bus parking zone.
(5) A person who violates Subsection (4) shall pay a minimum fine of $75.
Section 579. Section 41-6a-1406 is amended to read:
41-6a-1406
. Removal and impoundment of vehicles -- Reporting and notification requirements -- Administrative impound fee -- Refunds -- Possessory lien -- Rulemaking.(1) If a vehicle, vessel, or outboard motor is removed or impounded as provided under Section 41-1a-1101, 41-6a-527, 41-6a-1405, 41-6a-1408, or 73-18-20.1 by an order of a peace officer or by an order of a person acting on behalf of a law enforcement agency or highway authority, the removal or impoundment of the vehicle, vessel, or outboard motor shall be at the expense of the owner.
(2) The vehicle, vessel, or outboard motor under Subsection (1) shall be removed or impounded to:
(a) a state impound yard; or
(b) if none, a garage, docking area, or other place of safety.
(3) The peace officer may move a vehicle, vessel, or outboard motor or cause it to be removed by a tow truck motor carrier that meets standards established:
(a) under Title 72, Chapter 9, Motor Carrier Safety Act; and
(b) by the department under Subsection (10).
(4) (a) Immediately after the removal of the vehicle, vessel, or outboard motor, a report of the removal shall be sent to the Motor Vehicle Division by:
(i) the peace officer or agency by whom the peace officer is employed; and
(ii) the tow truck operator or the tow truck motor carrier by whom the tow truck operator is employed.
(b) The report shall be in a form specified by the Motor Vehicle Division and shall include:
(i) the operator's name, if known;
(ii) a description of the vehicle, vessel, or outboard motor;
(iii) the vehicle identification number or vessel or outboard motor identification number;
(iv) the license number or other identification number issued by a state agency;
(v) the date, time, and place of impoundment;
(vi) the reason for removal or impoundment;
(vii) the name of the tow truck motor carrier who removed the vehicle, vessel, or outboard motor; and
(viii) the place where the vehicle, vessel, or outboard motor is stored.
(c) Until the tow truck operator or tow truck motor carrier reports the removal as required under this Subsection (4), a tow truck motor carrier or impound yard may not:
(i) collect any fee associated with the removal; and
(ii) begin charging storage fees.
(5) (a) Upon receipt of the report, the Motor Vehicle Division shall give notice to the registered owner of the vehicle, vessel, or outboard motor and any lien holder in the manner prescribed by Section 41-1a-114.
(b) The notice shall:
(i) state the date, time, and place of removal, the name, if applicable, of the person operating the vehicle, vessel, or outboard motor at the time of removal, the reason for removal, and the place where the vehicle, vessel, or outboard motor is stored;
(ii) state that the registered owner is responsible for payment of towing, impound, and storage fees charged against the vehicle, vessel, or outboard motor;
(iii) inform the registered owner of the vehicle, vessel, or outboard motor of the conditions that must be satisfied before the vehicle, vessel, or outboard motor is released; and
(iv) inform the registered owner and lienholder of the division's intent to sell the vehicle, vessel, or outboard motor, if within 30 days from the date of the removal or impoundment under this section, the owner, lien holder, or the owner's agent fails to make a claim for release of the vehicle, vessel, or outboard motor.
(c) If the vehicle, vessel, or outboard motor is not registered in this state, the Motor Vehicle Division shall make a reasonable effort to notify the registered owner and any lien holder of the removal and the place where the vehicle, vessel, or outboard motor is stored.
(d) The Motor Vehicle Division shall forward a copy of the notice to the place where the vehicle, vessel, or outboard motor is stored.
(6) (a) The vehicle, vessel, or outboard motor shall be released after the registered owner, lien holder, or the owner's agent:
(i) makes a claim for release of the vehicle, vessel, or outboard motor at any office of the State Tax Commission;
(ii) presents identification sufficient to prove ownership of the impounded vehicle, vessel, or outboard motor;
(iii) completes the registration, if needed, and pays the appropriate fees;
(iv) if the impoundment was made under Section 41-6a-527, pays an administrative impound fee of $230; and
(v) pays all towing and storage fees to the place where the vehicle, vessel, or outboard motor is stored.
(b) (i) Twenty-nine dollars of the administrative impound fee assessed under Subsection (6)(a)(iv) shall be dedicated credits to the Motor Vehicle Division;
(ii) $97 of the administrative impound fee assessed under Subsection (6)(a)(iv) shall be deposited in the Department of Public Safety Restricted Account created in Section 53-3-106; and
(iii) the remainder of the administrative impound fee assessed under Subsection (6)(a)(iv) shall be deposited in the General Fund.
(c) The administrative impound fee assessed under Subsection (6)(a)(iv) shall be waived or refunded by the State Tax Commission if the registered owner, lien holder, or owner's agent presents written evidence to the State Tax Commission that:
(i) the Driver License Division determined that the arrested person's driver license should not be suspended or revoked under Section 53-3-223 or 41-6a-521 as shown by a letter or other report from the Driver License Division presented within 30 days of the final notification from the Driver License Division; or
(ii) the vehicle was stolen at the time of the impoundment as shown by a copy of the stolen vehicle report presented within 30 days of the impoundment.
(7) (a) An impounded vehicle, vessel, or outboard motor not claimed by the registered owner or the owner's agent within the time prescribed by Section 41-1a-1103 shall be sold in accordance with that section and the proceeds, if any, shall be disposed of as provided under Section 41-1a-1104.
(b) The date of impoundment is considered the date of seizure for computing the time period provided under Section 41-1a-1103.
(8) The registered owner who pays all fees and charges incurred in the impoundment of the owner's vehicle, vessel, or outboard motor, has a cause of action for all the fees and charges, together with damages, court costs, and attorney fees, against the operator of the vehicle, vessel, or outboard motor whose actions caused the removal or impoundment.
(9) Towing, impound fees, and storage fees are a possessory lien on the vehicle, vessel, or outboard motor.
(10) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules setting the performance standards for towing companies to be used by the department.
(11) (a) The Motor Vehicle Division may specify that a report required under Subsection (4) be submitted in electronic form utilizing a database for submission, storage, and retrieval of the information.
(b) (i) Unless otherwise provided by statute, the Motor Vehicle Division or the administrator of the database may adopt a schedule of fees assessed for utilizing the database.
(ii) The fees under this Subsection (11)(b) shall:
(A) be reasonable and fair; and
(B) reflect the cost of administering the database.
Section 580. Section 41-6a-1601 is amended to read:
41-6a-1601
. Operation of unsafe or improperly equipped vehicles on public highways -- Exceptions.(1) (a) A person may not operate or move and an owner may not cause or knowingly permit to be operated or moved on a highway a vehicle or combination of vehicles which:
(i) is in an unsafe condition that may endanger any person;
(ii) does not contain those parts or is not at all times equipped with lamps and other equipment in proper condition and adjustment as required in this chapter;
(iii) is equipped in any manner in violation of this chapter; or
(iv) emits pollutants in excess of the limits allowed under the rules of the Air Quality Board created under Title 19, Chapter 2, Air Conservation Act, or under rules made by local health departments.
(b) A person may not do any act forbidden or fail to perform any act required under this chapter.
(2) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and in coordination with the rules made under Section 53-8-204, the department shall make rules setting minimum standards covering the design, construction, condition, and operation of vehicle equipment for safely operating a motor vehicle on the highway as required under this part.
(b) The rules under Subsection (2)(a):
(i) shall conform as nearly as practical to Federal Motor Vehicle Safety Standards and Regulations;
(ii) may incorporate by reference, in whole or in part, the federal standards under Subsection (2)(b)(i) and nationally recognized and readily available standards and codes on motor vehicle safety;
(iii) shall include provisions for the issuance of a permit under Section 41-6a-1602;
(iv) shall include standards for the emergency lights of authorized emergency vehicles;
(v) may provide standards and specifications applicable to lighting equipment on school buses consistent with:
(A) this part;
(B) federal motor vehicle safety standards; and
(C) current specifications of the Society of Automotive Engineers;
(vi) shall provide procedures for the submission, review, approval, disapproval, issuance of an approval certificate, and expiration or renewal of approval of any part as required under Section 41-6a-1620;
(vii) shall establish specifications for the display or etching of a vehicle identification number on a vehicle;
(viii) shall establish specifications in compliance with this part for a flare, fusee, electric lantern, warning flag, or portable reflector used in compliance with this part;
(ix) shall establish approved safety and law enforcement purposes when video display is visible to the motor vehicle operator; and
(x) shall include standards and specifications for both original equipment and parts included when a vehicle is manufactured and aftermarket equipment and parts included after the original manufacture of a vehicle.
(c) The following standards and specifications for vehicle equipment are adopted:
(i) 49 C.F.R. 571.209 related to safety belts;
(ii) 49 C.F.R. 571.213 related to child restraint devices;
(iii) 49 C.F.R. 393, 396, and 396 Appendix G related to commercial motor vehicles and trailers operated in interstate commerce;
(iv) 49 C.F.R. 571 Standard 108 related to lights and illuminating devices; and
(v) 40 C.F.R. 82.30 through 82.42 and Part 82, Subpart B, Appendix A and B related to air conditioning equipment.
(3) Nothing in this chapter or the rules made by the department prohibit:
(a) equipment required by the United States Department of Transportation; or
(b) the use of additional parts and accessories on a vehicle not inconsistent with the provisions of this chapter or the rules made by the department.
(4) Except as specifically made applicable, the provisions of this chapter and rules of the department with respect to equipment required on vehicles do not apply to:
(a) implements of husbandry;
(b) road machinery;
(c) road rollers;
(d) farm tractors;
(e) motorcycles;
(f) motor-driven cycles;
(g) vehicles moved solely by human power;
(h) off-highway vehicles registered under Section 41-22-3 either:
(i) on a highway designated as open for off-highway vehicle use; or
(ii) in the manner prescribed by Section 41-22-10.3; or
(i) off-highway implements of husbandry when operated in the manner prescribed by Subsections 41-22-5.5 (3) through (5).
(5) The vehicles referred to in Subsections (4)(h) and (i) are subject to the equipment requirements of Title 41, Chapter 22, Off-highway Vehicles, and the rules made under that chapter.
(6) (a) A federal motor vehicle safety standard supersedes any conflicting provision of this chapter.
(b) The department:
(i) shall report any conflict found under Subsection (6)(a) to the appropriate committees or officials of the Legislature; and
(ii) may adopt a rule to replace the superseded provision.
Section 581. Section 41-6a-1617 is amended to read:
41-6a-1617
. Highway construction and maintenance vehicles -- Transportation department to adopt rules for lighting.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation shall make rules providing specifications governing the design and use of special flashing lights on vehicles engaged in highway construction or maintenance operations.
(2) The standards and specifications adopted under Subsection (1) shall correlate with, and where possible conform to, the standards set forth in the most recent edition of the "Manual on Uniform Traffic Control Devices for Streets and Highways" and other standards issued or endorsed by the federal highway administrator.
(3) The operator of a vehicle engaged in highway construction or maintenance operations shall comply with rules adopted under this section.
Section 582. Section 41-6a-1636 is amended to read:
41-6a-1636
. Tires which are prohibited -- Regulatory powers of state transportation department -- Winter use of studs -- Special permits -- Tread depth.(1) A solid rubber tire on a vehicle shall have rubber on its entire traction surface at least one inch thick above the edge of the flange of the entire periphery.
(2) A person may not operate or move on a highway a motor vehicle, trailer, or semitrailer having a metal tire in contact with the roadway.
(3) Except as otherwise provided in this section, a person may not have a tire on a vehicle that is moved on a highway that has on the tire's periphery a block, stud, flange, cleat, or spike or any other protuberances of any material other than rubber which projects beyond the tread of the traction surface of the tire.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation may make rules to permit the use of tires on a vehicle having protuberances other than rubber, if the department concludes that protuberances do not:
(a) damage the highway significantly; or
(b) constitute a hazard to life, health, or property.
(5) Notwithstanding any other provision of this section, a person may use:
(a) a tire with protuberances consisting of tungsten carbide studs on a vehicle if the studs:
(i) are only used during the winter periods of October fifteenth through December thirty-first and January first through March thirty-first of each year;
(ii) do not project beyond the tread of the traction surface of the tire more than .050 inches; and
(iii) are not used on a vehicle with a maximum gross weight in excess of 9,000 pounds unless the vehicle is an emergency vehicle or school bus;
(b) farm machinery with tires having protuberances which will not injure the highway; and
(c) tire chains of reasonable proportions on a vehicle when required for safety because of snow, ice, or other conditions tending to cause a vehicle to skid.
(6) Notwithstanding any other provision of this chapter, a highway authority, for a highway under its jurisdiction, may issue special permits authorizing the operation on a highway of:
(a) farm tractors;
(b) other farm machinery; or
(c) traction engines or tractors having movable tracks with transverse corrugations on the periphery of the movable tracks.
(7) (a) A person may not operate a vehicle if one or more of the tires in use on the vehicle:
(i) is in an unsafe operating condition; or
(ii) has a tread depth less than 2/32 inch measured in any two adjacent tread grooves at three equally spaced intervals around the circumference of the tire.
(b) The measurement under Subsection (7)(a) may not be made at the location of any tread wear indicator, tie bar, hump, or fillet.
(8) A person in the business of selling tires may not sell or offer for sale for highway use any tire prohibited for use under Subsection (7).
Section 583. Section 41-6a-1639 is amended to read:
41-6a-1639
. Hazardous materials -- Transportation regulations -- Fire extinguishers.(1) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation shall make rules for the safe transportation of hazardous materials.
(b) The rules shall adopt by reference or be consistent with current Hazardous Materials Regulations of the United States Department of Transportation.
(c) An adoption by reference under Subsection (1)(b) shall be construed to incorporate amendments thereto as may be made from time to time.
(2) A person operating a vehicle transporting any hazardous material as a cargo or part of a cargo on a highway shall at all times comply with rules made by the Department of Transportation under this section including being:
(a) marked or placarded; and
(b) equipped with fire extinguishers:
(i) of a type, size, and number approved by rule; and
(ii) that are filled, ready for immediate use, and placed at a convenient point on the vehicle.
Section 584. Section 41-12a-201 is amended to read:
41-12a-201
. Administration of laws under Title 41, Chapter 12a -- Compliance with Administrative Procedures Act.(1) The department shall administer and enforce the provisions of this chapter and may adopt rules as necessary for its administration.
(2) The department shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 585. Section 41-12a-202 is amended to read:
41-12a-202
. Access to accident reports.(1) Accident reports and supplemental information as required under this chapter are protected and are for the confidential use of the department and other state, local, or federal government agencies and may be disclosed only as provided in Section 41-6a-404.
(2) (a) Any person entitled to the disclosure of an accident report, as provided in Section 41-6a-404, may obtain a photocopy by paying the department a fee established under Section [63-38-3.2] 63J-1-303.
(b) These fees shall be deposited in the General Fund.
Section 586. Section 41-12a-407 is amended to read:
41-12a-407
. Certificate of self-funded coverage as proof of owner's or operator's security.(1) The department may, upon the application of any person, issue a certificate of self-funded coverage when it is satisfied that the person has:
(a) more than 24 motor vehicles; and
(b) deposits, in a form approved by the department, securities in an amount of $200,000 plus $100 for each motor vehicle up to and including 1,000 motor vehicles and $50 for every motor vehicle over 1,000 motor vehicles.
(2) Persons holding a certificate of self-funded coverage under this chapter shall pay benefits to persons injured from the self-funded person's operation, maintenance, and use of motor vehicles as would an insurer issuing a policy to the self-funded person containing the coverages under Section 31A-22-302.
(3) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the department may, upon reasonable grounds, cancel the certificate. Failure to pay any judgment up to the limit under Subsection 31A-22-304(2) within 30 days after the judgment is final is a reasonable ground to cancel the certificate.
(4) Any government entity with self-funded coverage for government-owned motor vehicles under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, meets the requirements of this section.
Section 587. Section 41-12a-803 is amended to read:
41-12a-803
. Program creation -- Administration -- Selection of designated agent -- Duties -- Rulemaking -- Audits.(1) There is created the Uninsured Motorist Identification Database Program to:
(a) establish an Uninsured Motorist Identification Database to verify compliance with motor vehicle owner's or operator's security requirements under Section 41-12a-301 and other provisions under this part;
(b) assist in reducing the number of uninsured motor vehicles on the highways of the state;
(c) assist in increasing compliance with motor vehicle registration and sales and use tax laws; and
(d) assist in protecting a financial institution's bona fide security interest in a motor vehicle.
(2) The program shall be administered by the department with the assistance of the designated agent and the Motor Vehicle Division.
(3) (a) The department shall contract in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, with a third party to establish and maintain an Uninsured Motorist Identification Database for the purposes established under this part.
(b) The contract may not obligate the department to pay the third party more monies than are available in the account.
(4) (a) The third party under contract under this section is the department's designated agent, and shall develop and maintain a computer database from the information provided by:
(i) insurers under Section 31A-22-315;
(ii) the division under Subsection (6); and
(iii) the Motor Vehicle Division under Section 41-1a-120.
(b) (i) The database shall be developed and maintained in accordance with guidelines established by the department so that state and local law enforcement agencies and financial institutions as defined in Section 7-1-103 can efficiently access the records of the database, including reports useful for the implementation of the provisions of this part.
(ii) (A) The reports shall be in a form and contain information approved by the department.
(B) The reports may be made available through the Internet or through other electronic medium, if the department determines that sufficient security is provided to ensure compliance with Section 41-12a-805 regarding limitations on disclosure of information in the database.
(5) With information provided by the department and the Motor Vehicle Division, the designated agent shall, at least monthly for submissions under Subsection 31A-22-315(2)(b) or at least twice a month for submissions under Subsection 31A-22-315(2)(a):
(a) update the database with the motor vehicle insurance information provided by the insurers in accordance with Section 31A-22-315; and
(b) compare all current motor vehicle registrations against the database.
(6) The division shall provide the designated agent with the name, date of birth, address, and driver license number of all persons on the driver license database.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules and develop procedures in cooperation with the Motor Vehicle Division to use the database for the purpose of administering and enforcing this part.
(8) (a) The designated agent shall archive computer data files at least semi-annually for auditing purposes.
(b) The internal audit unit of the tax commission provided under Section 59-1-206 shall audit the program at least every three years.
(c) The audit under Subsection (8)(b) shall include verification of:
(i) billings made by the designated agent; and
(ii) the accuracy of the designated agent's matching of vehicle registration with insurance data.
Section 588. Section 41-12a-805 is amended to read:
41-12a-805
. Disclosure of insurance information -- Penalty.(1) Information in the database established under Section 41-12a-803 provided by a person to the designated agent is considered to be the property of the person providing the information. The information may not be disclosed from the database under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, or otherwise, except as follows:
(a) for the purpose of investigating, litigating, or enforcing the owner's or operator's security requirement under Section 41-12a-301, the designated agent shall verify insurance information through the state computer network for a state or local government agency or court;
(b) for the purpose of investigating, litigating, or enforcing the owner's or operator's security requirement under Section 41-12a-301, the designated agent shall, upon request, issue to any state or local government agency or court a certificate documenting the insurance information, according to the database, of a specific individual or motor vehicle for the time period designated by the government agency;
(c) upon request, the department or its designated agent shall disclose whether or not a person is an insured individual and the insurance company name to:
(i) that individual or, if that individual is deceased, any interested person of that individual, as defined in Section 75-1-201;
(ii) the parent or legal guardian of that individual if the individual is an unemancipated minor;
(iii) the legal guardian of that individual if the individual is legally incapacitated;
(iv) a person who has power of attorney from the insured individual;
(v) a person who submits a notarized release from the insured individual dated no more than 90 days before the date the request is made; or
(vi) a person suffering loss or injury in a motor vehicle accident in which the insured individual is involved, but only as part of an accident report as authorized in Section 41-12a-202;
(d) for the purpose of investigating, enforcing, or prosecuting laws or issuing citations by state or local law enforcement agencies related to the:
(i) registration and renewal of registration of a motor vehicle under Title 41, Chapter 1a, Motor Vehicle Act;
(ii) purchase of a motor vehicle under Title 59, Chapter 12, Sales and Use Tax Act; and
(iii) owner's or operator's security requirements under Section 41-12a-301;
(e) upon request of a peace officer acting in an official capacity under the provisions of Subsection (1)(d), the department or the designated agent shall, upon request, disclose relevant information for investigation, enforcement, or prosecution;
(f) for the purpose of the state auditor, the legislative auditor general, or other auditor of the state conducting audits of the program; and
(g) upon request of a financial institution as defined under Section 7-1-103 for the purpose of protecting the financial institution's bona fide security interest in a motor vehicle.
(2) (a) The department may allow the designated agent to prepare and deliver upon request, a report on the insurance information of a person or motor vehicle in accordance with this section.
(b) The report may be in the form of:
(i) a certified copy that is considered admissible in any court proceeding in the same manner as the original; or
(ii) information accessible through the Internet or through other electronic medium if the department determines that sufficient security is provided to ensure compliance with this section.
(c) The department may allow the designated agent to charge a fee established by the department under Section [63-38-3.2] 63J-1-303 for each:
(i) document authenticated, including each certified copy;
(ii) record accessed by the Internet or by other electronic medium; and
(iii) record provided to a financial institution under Subsection (1)(g).
(3) Any person who knowingly releases or discloses information from the database for a purpose other than those authorized in this section or to a person who is not entitled to it is guilty of a third degree felony.
(4) An insurer is not liable to any person for complying with Section 31A-22-315 by providing information to the designated agent.
(5) Neither the state nor the department's designated agent are liable to any person for gathering, managing, or using the information in the database as provided in Section 31A-22-315 and this part.
Section 589. Section 41-22-5.1 is amended to read:
41-22-5.1
. Rules of board relating to display of registration stickers.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules for the display of a registration sticker on an off-highway vehicle in accordance with Section 41-22-3.
Section 590. Section 41-22-10.7 is amended to read:
41-22-10.7
. Vehicle equipment requirements -- Rulemaking -- Exceptions.(1) Except as provided under Subsection (3), an off-highway vehicle shall be equipped with:
(a) brakes adequate to control the movement of and to stop and hold the vehicle under normal operating conditions;
(b) headlights and taillights when operated between sunset and sunrise;
(c) a noise control device and except for a snowmobile, a spark arrestor device; and
(d) a safety flag, red or orange in color and a minimum of six by 12 inches, attached to the off-highway vehicle at least eight feet above the surface of level ground, when operated on sand dunes designated by the board.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board may make rules which set standards for the equipment and which designate sand dunes where safety flags are required under Subsection (1).
(3) An off-highway implement of husbandry used only in agricultural operations and not operated on a highway, is exempt from the provisions of this section.
Section 591. Section 41-22-19.5 (Effective 10/01/07) is amended to read:
41-22-19.5 (Effective 10/01/07)
. Off-highway Access and Education Restricted Account -- Creation -- Funding -- Distribution of funds by the Board of Parks and Recreation.(1) There is created in the General Fund a restricted account known as the Off-highway Access and Education Restricted Account.
(2) The account shall be funded by:
(a) contributions deposited into the Off-highway Access and Education Restricted Account in accordance with Section 41-1a-230.6;
(b) private contributions;
(c) donations or grants from public or private entities; or
(d) interest and earnings on fund monies.
(3) Funds in the account are nonlapsing.
(4) The Legislature shall appropriate money in the account to the board.
(5) The board may expend up to 10% of the monies appropriated under Subsection (4) to:
(a) administer account distributions in accordance with Subsections (6) through (9); and
(b) administer off-highway vehicle provisions under this chapter.
(6) The board shall distribute the funds to a charitable organization that:
(a) qualifies as being tax exempt under Section 501(c)(3) of the Internal Revenue Code;
(b) has at least one full-time employee; and
(c) has as a primary part of its mission to:
(i) protect access to public lands by motor vehicle and off-highway vehicle operators; and
(ii) educate the public about appropriate off-highway vehicle use.
(7) The board may only consider proposals that are:
(a) proposed by a charitable organization under Subsection (6); and
(b) designed to:
(i) protect access to public lands by motor vehicle and off-highway vehicle operators; and
(ii) educate the public about appropriate off-highway vehicle use.
(8) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules providing procedures for an organization to apply to receive funds under this section.
(9) The board may not:
(a) require matching funds from a charitable organization as a condition of receiving funds; or
(b) prohibit the use of funds to cover litigation expenses incurred in protecting access to public lands by motor vehicle and off-highway vehicle operators.
Section 592. Section 41-22-29 is amended to read:
41-22-29
. Operation by persons under eight years of age prohibited -- Definitions -- Exception -- Penalty.(1) As used in this section:
(a) "Organized practice" means a scheduled motorcycle practice held in an off-road vehicle facility designated by the division and conducted by an organization carrying liability insurance in at least the amounts specified by the division under Subsection (5) covering all activities associated with the practice.
(b) "Sanctioned race" means a motorcycle race conducted on a closed course and sponsored and sanctioned by an organization carrying liability insurance in at least the amounts specified by the division under Subsection (5) covering all activities associated with the race.
(2) Except as provided under Subsection (3), a person under eight years of age may not operate and an owner may not give another person who is under eight years of age permission to operate an off-highway vehicle on any public land, trail, street, or highway of this state.
(3) A child under eight years of age may participate in a sanctioned race or organized practice if:
(a) the child is under the immediate supervision of an adult;
(b) emergency medical service personnel, as defined in Section 26-8a-102, are on the premises and immediately available to provide assistance at all times during the sanctioned race or organized practice; and
(c) an ambulance provider, as defined in Section 26-8a-102, is on the premises and immediately available to provide assistance for a sanctioned race.
(4) Any person convicted of a violation of this section is guilty of an infraction and shall be fined not more than $50 per offense.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules specifying the minimum amounts of liability coverage for an organized practice or sanctioned race.
Section 593. Section 41-22-31 is amended to read:
41-22-31
. Board to set standards for safety program -- Safety certificates issued -- Cooperation with public and private entities -- State immunity from suit.(1) The board shall establish curriculum standards for a comprehensive off-highway vehicle safety education and training program and shall implement this program.
(a) The program shall be designed to develop and instill the knowledge, attitudes, habits, and skills necessary for the safe operation of an off-highway vehicle.
(b) Components of the program shall include the preparation and dissemination of off-highway vehicle information and safety advice to the public and the training of off-highway vehicle operators.
(c) Off-highway vehicle safety certificates shall be issued to those who successfully complete training or pass the knowledge and skills test established under the program.
(2) The division shall cooperate with appropriate private organizations and associations, private and public corporations, and local government units to implement the program established under this section.
(3) In addition to the governmental immunity granted in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, the state is immune from suit for any act, or failure to act, in any capacity relating to the off-highway vehicle safety education and training program. The state is also not responsible for any insufficiency or inadequacy in the quality of training provided by this program.
Section 594. Section 41-22-35 is amended to read:
41-22-35
. Off-highway vehicle user fee -- Decal -- Agents -- Penalty for fraudulent issuance of decal -- Deposit and use of fee revenue.(1) (a) Except as provided in Subsection (1)(b), any nonresident owning an off-highway vehicle who operates or gives another person permission to operate the off-highway vehicle on any public land, trail, street, or highway in this state shall:
(i) apply for an off-highway vehicle decal issued exclusively for an off-highway vehicle owned by a nonresident of the state;
(ii) pay an annual off-highway vehicle user fee; and
(iii) provide evidence that:
(A) the person is a nonresident; and
(B) the person is the owner of the off-highway vehicle.
(b) The provisions of Subsection (1)(a) do not apply to an off-highway vehicle if the off-highway vehicle is:
(i) registered in another state that offers reciprocal operating privileges to Utah residents under rules made by the board; or
(ii) used exclusively for the purposes of a scheduled competitive event sponsored by a public or private entity or another event sponsored by a governmental entity under rules made by the board.
(2) The off-highway vehicle user fee is $30.
(3) Upon compliance with the provisions of Subsection (1)(a), the nonresident shall:
(a) receive a nonresident off-highway vehicle user decal indicating compliance with the provisions of Subsection (1)(a); and
(b) display the decal on the off-highway vehicle in accordance with rules made by the board.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules establishing:
(a) procedures for:
(i) the payment of off-highway vehicle user fees; and
(ii) the display of a decal on an off-highway vehicle as required under Subsection (3)(b);
(b) acceptable evidence indicating compliance with Subsection (1);
(c) eligibility requirements for reciprocal operating privileges for nonresident users; and
(d) eligibility for scheduled competitive events or other events under Subsection (1)(b)(ii).
(5) (a) An off-highway vehicle user decal may be issued and the off-highway vehicle user fee may be collected by the division or agents of the division.
(b) An agent shall retain 10% of all off-highway vehicle user fees collected.
(c) The division may require agents to obtain a bond in a reasonable amount.
(d) On or before the tenth day of each month, each agent shall:
(i) report all sales to the division; and
(ii) submit all off-highway vehicle user fees collected less the remuneration provided in Subsection (5)(b).
(e) (i) If an agent fails to pay the amount due, the division may assess a penalty of 20% of the amount due.
(ii) Delinquent payments shall bear interest at the rate of 1% per month.
(iii) If the amount due is not paid because of bad faith or fraud, the division shall assess a penalty of 100% of the total amount due together with interest.
(f) All fees collected by an agent, except the remuneration provided in Subsection (5)(b), shall:
(i) be kept separate and apart from the private funds of the agent; and
(ii) belong to the state.
(g) An agent may not issue an off-highway vehicle user decal to any person unless the person furnishes evidence of compliance with the provisions of Subsection (1)(a).
(h) A violation of any provision of this Subsection (5) is a class B misdemeanor and may be cause for revocation of the agent authorization.
(6) Revenue generated by off-highway vehicle user fees shall be deposited in the Off-highway Vehicle Account created in Section 41-22-19.
Section 595. Section 41-22-36 is amended to read:
41-22-36
. Fees to cover the costs of electronic payments.(1) As used in this section:
(a) "Electronic payment" has the same meaning as defined in Section 41-1a-1221.
(b) "Electronic payment fee" has the same meaning as defined in Section 41-1a-1221.
(2) (a) The Motor Vehicle Division may collect an electronic payment fee on all registrations and renewals of registration under Section 41-22-8.
(b) The fee described in Subsection (2)(a) shall be imposed regardless of the method of payment for a particular transaction.
(3) The division shall establish the fee according to the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(4) A fee imposed under this section:
(a) shall be used by the Motor Vehicle Division as a dedicated credit to cover the costs of electronic payments;
(b) is nonlapsing;
(c) is not subject to Subsection [63-38a-104] 63J-2-202(2); and
(d) need not be separately identified from the fees imposed on registrations and renewals of registration under Section 41-22-8.
Section 596. Section 42-2-10 is amended to read:
42-2-10
. Penalties.Any person who carries on, conducts, or transacts business under an assumed name without having complied with the provisions of this chapter, and until the provisions of this chapter are complied with:
(1) shall not sue, prosecute, or maintain any action, suit, counterclaim, cross complaint, or proceeding in any of the courts of this state; and
(2) may be subject to a penalty in the form of a late filing fee determined by the division director in an amount not to exceed three times the fees charged under Section 42-2-7 and established under Section [63-38-3.2] 63J-1-303.
Section 597. Section 42-3-2 is amended to read:
42-3-2
. Recording fee.Any person having the name of his farm so recorded shall first pay to the commissioner of agriculture and food a fee determined by the commissioner pursuant to Section [63-38-3.2] 63J-1-303. This fee shall be transmitted to the General Fund.
Section 598. Section 42-3-4 is amended to read:
42-3-4
. Cancellation by owner -- Fee.When any owner of a registered farm desires to cancel its registered name, he shall write on the back of the certificate the following: "This name is canceled, and I hereby release all rights thereunder," and shall sign such statement in the presence of a witness and file the same in the office of the commissioner of agriculture and food. For such filing the commissioner of agriculture and food shall charge a fee determined by the commissioner pursuant to Section [63-38-3.2] 63J-1-303, which shall be paid to the General Fund. The commissioner of agriculture and food shall, when such certificate so endorsed has been filed in his office, write on the margin of the register of such name the word "canceled."
Section 599. Section 46-1-3 is amended to read:
46-1-3
. Qualifications -- Commissioning -- Jurisdiction and term.(1) Except as provided in Subsection (3), the lieutenant governor shall commission as a notary any qualified person who submits an application in accordance with this chapter.
(2) A person qualified for a notarial commission shall:
(a) be 18 years of age or older;
(b) lawfully reside in this state 30 days immediately preceding the filing for a notarial commission and maintain permanent residency thereafter;
(c) be able to read, write, and understand English;
(d) submit an application to the lieutenant governor containing no significant misstatement or omission of fact and include at least:
(i) a statement of the applicant's personal qualifications, the applicant's residence address, a business address in this state, and daytime telephone number;
(ii) the applicant's age and date of birth;
(iii) all criminal convictions of the applicant, including any pleas of admission and nolo contendere;
(iv) all issuances, denials, revocations, suspensions, restrictions, and resignations of a notarial commission or other professional license involving the applicant in this or any other state;
(v) the acknowledgment of a passing score by the applicant on a written examination administered under Subsection (5);
(vi) a declaration by the applicant; and
(vii) an application fee determined under Section [63-38-3.2] 63J-1-303;
(e) be a Utah resident or have permanent resident status under Section 245 of the Immigration and Nationality Act; and
(f) be endorsed by two residents of the state who are over the age of 18.
(3) The lieutenant governor may deny an application based on:
(a) the applicant's conviction for a crime involving dishonesty or moral turpitude;
(b) any revocation, suspension, or restriction of a notarial commission or professional license issued to the applicant by this or any other state;
(c) the applicant's official misconduct while acting in the capacity of a notary; or
(d) the applicant's failure to pass the written examination.
(4) A person commissioned as a notary by the lieutenant governor may perform notarial acts in any part of this state for a term of four years, unless the person resigned or the commission is revoked or suspended under Section 46-1-19.
(5) Each applicant for a notarial commission shall take a written examination approved by the lieutenant governor and submit the examination to a testing center designated by the lieutenant governor for purposes of scoring the examination. The testing center designated by the lieutenant governor shall issue a written acknowledgment to the applicant indicating whether the applicant passed or failed the examination.
Section 600. Section 46-4-501 is amended to read:
46-4-501
. Creation and retention of electronic records and conversion of written records by governmental agencies.(1) A state governmental agency may, by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules that:
(a) identify specific transactions that the agency is willing to conduct by electronic means;
(b) identify specific transactions that the agency will never conduct by electronic means;
(c) specify the manner and format in which electronic records must be created, generated, sent, communicated, received, and stored, and the systems established for those purposes;
(d) if law or rule requires that the electronic records must be signed by electronic means, specify the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met, by any third party used by a person filing a document to facilitate the process;
(e) specify control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(f) identify any other required attributes for electronic records that are specified for corresponding nonelectronic records or that are reasonably necessary under the circumstances.
(2) A state governmental agency that makes rules under this section shall submit copies of those rules, and any amendments to those rules, to:
(a) the chief information officer established by Section 63F-1-201; and
(b) the Utah Technology Commission established by Section 63D-1a-201.
(3) (a) The chief information officer may prepare model rules and standards relating to electronic transactions that encourage and promote consistency and interoperability with similar requirements adopted by other Utah government agencies, other states, the federal government, and nongovernmental persons interacting with Utah governmental agencies.
(b) In preparing those model rules and standards, the chief information officer may specify different levels of standards from which governmental agencies may choose in order to implement the most appropriate standard for a particular application.
(c) Before submitting any model rules or standards to state governmental agencies for their adoption as permanent rules, the chief information officer shall submit the model rules and standards to the Utah Technology Commission for its review and suggestions.
(d) Nothing in this Subsection (3) requires a state agency to use the model rules and standards prepared by the chief information officer when making rules under this section.
(4) Except as provided in Subsection 46-4-301(6), nothing in this chapter requires any state governmental agency to:
(a) conduct transactions by electronic means; or
(b) use or permit the use of electronic records or electronic signatures.
(5) Each state governmental agency shall:
(a) establish record retention schedules for any electronic records created or received in an electronic transaction according to the standards developed by the Division of Archives under Subsection [63-2-901] 63A-12-101(2)(e); and
(b) obtain approval of those schedules from the State Records Committee as required by Subsection [63-2-502] 63G-2-502(1)(b).
Section 601. Section 46-4-503 is amended to read:
46-4-503
. Government products and services provided electronically.(1) Notwithstanding Section 46-4-501, a state governmental agency that administers one or more of the following transactions shall allow those transactions to be conducted electronically:
(a) an application for or renewal of a professional or occupational license issued under Title 58, Occupations and Professions;
(b) the renewal of a drivers license;
(c) an application for a hunting or fishing license;
(d) the filing of:
(i) a return under Title 59, Chapter 10, Individual Income Tax Act or 12, Sales and Use Tax Act;
(ii) a court document, as defined by the Judicial Council; or
(iii) a document under Title 70A, Uniform Commercial Code;
(e) a registration for:
(i) a product; or
(ii) a brand;
(f) a renewal of a registration of a motor vehicle;
(g) a registration under:
(i) Title 16, Corporations;
(ii) Title 42, Names; or
(iii) Title 48, Partnership; or
(h) submission of an application for benefits:
(i) under Title 35A, Chapter 3, Employment Support Act;
(ii) under Title 35A, Chapter 4, Employment Security Act; or
(iii) related to accident and health insurance.
(2) The state system of public education, in coordination with the Utah Education Network, shall make reasonable progress toward making the following services available electronically:
(a) secure access by parents and students to student grades and progress reports;
(b) e-mail communications with:
(i) teachers;
(ii) parent-teacher associations; and
(iii) school administrators;
(c) access to school calendars and schedules; and
(d) teaching resources that may include:
(i) teaching plans;
(ii) curriculum guides; and
(iii) media resources.
(3) A state governmental agency shall:
(a) in carrying out the requirements of this section, take reasonable steps to ensure the security and privacy of records that are private or controlled as defined by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act;
(b) in addition to those transactions listed in Subsections (1) and (2), determine any additional services that may be made available to the public through electronic means; and
(c) as part of the agency's information technology plan required by Section 63F-1-204, report on the progress of compliance with Subsections (1) through (3).
(4) Notwithstanding the other provisions of this part, a state governmental agency is not required by this part to conduct a transaction electronically if:
(a) conducting the transaction electronically is not required by federal law; and
(b) conducting the transaction electronically is:
(i) impractical;
(ii) unreasonable; or
(iii) not permitted by laws pertaining to privacy or security.
(5) (a) For purposes of this Subsection (5), "one-stop shop" means the consolidation of access to diverse services and agencies at one location including virtual colocation.
(b) State agencies that provide services or offer direct assistance to the business community shall participate in the establishment, maintenance, and enhancement of an integrated Utah business web portal known as Business.utah.gov. The purpose of the business web portal is to provide "one-stop shop" assistance to businesses.
(c) State agencies shall partner with other governmental and nonprofit agencies whose primary mission is to provide services or offer direct assistance to the business community in Utah in fulfilling the requirements of this section.
(d) The following state entities shall comply with the provisions of this Subsection (5):
(i) Governor's Office of Economic Development, which shall serve as the managing partner for the website;
(ii) Department of Workforce Services;
(iii) Department of Commerce;
(iv) Tax Commission;
(v) Department of Administrative Services - Division of Purchasing and General Services, including other state agencies operating under a grant of authority from the division to procure goods and services in excess of $5,000;
(vi) Department of Agriculture;
(vii) Department of Natural Resources; and
(viii) other state agencies that provide services or offer direct assistance to the business sector.
(e) The business services available on the business web portal may include:
(i) business life cycle information;
(ii) business searches;
(iii) employment needs and opportunities;
(iv) motor vehicle registration;
(v) permit applications and renewal;
(vi) tax information;
(vii) government procurement bid notifications;
(viii) general business information;
(ix) business directories; and
(x) business news.
Section 602. Section 48-1-42 is amended to read:
48-1-42
. Registration of limited liability partnerships.(1) (a) A partnership shall register with the Division of Corporations and Commercial Code by filing an application or a renewal statement:
(i) to become and to continue as a limited liability partnership; or
(ii) to do business in this state as a foreign limited liability partnership.
(b) The application or renewal statement shall include:
(i) the name of the limited liability partnership;
(ii) the address of its principal office;
(iii) if the principal office of the limited liability partnership is not located in this state, the address of a registered office and the name and address of a registered agent for service of process in this state;
(iv) the number of partners;
(v) a brief statement of the business in which the limited liability partnership engages;
(vi) a brief statement that the partnership is applying for, or seeking to renew its status as a limited liability partnership; and
(vii) if a foreign limited liability partnership, an original certificate of fact or good standing from the office of the lieutenant governor or other responsible authority of the state in which the limited liability partnership is formed.
(2) The application or renewal statement required by Subsection (1) shall be executed by a majority in voting interest of the partners or by one or more partners authorized by the partnership to execute an application or renewal statement.
(3) The application or renewal statement shall be accompanied by a filing fee established under Section [63-38-3.2] 63J-1-303.
(4) The division shall register as a limited liability partnership any partnership that submits a completed application with the required fee.
(5) (a) The registration expires one year after the date an application is filed unless the registration is voluntarily withdrawn by filing with the division a written withdrawal notice executed by a majority in voting interest of the partners or by one or more partners authorized to execute a withdrawal notice.
(b) Registration of a partnership as a limited liability partnership shall be renewed if no earlier than 60 days before the date the registration expires and no later than the date of expiration, the limited liability partnership files with the division a renewal statement.
(c) The division shall renew the registration as a limited liability partnership of any limited liability partnership that timely submits a completed renewal statement with the required fee.
(d) If a renewal statement is timely filed, the registration is effective for one year after the date the registration would have expired but for the filing or the renewal statement.
(6) The status of a partnership as a limited liability partnership is not affected by changes in the information stated in the application or renewal statement which take place after the filing of an application or a renewal statement.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may issue rules providing for the form content and submittal of applications for registration or of renewal statements.
Section 603. Section 48-2a-203.5 is amended to read:
48-2a-203.5
. Involuntary dissolution of certificate.(1) A certificate of limited partnership may be canceled involuntarily by a decree of a district court having competent jurisdiction upon petition by the director of the division, or by a party in interest who shall have standing to bring such an action, when it is established that:
(a) the limited partnership procured the issuance of a stamped copy of its certificate of limited partnership or the execution of the certificate of limited partnership through fraud, in which case the certificate shall be canceled as of the date of its filing; or
(b) the limited partnership has continually exceeded or abused the authority conferred upon it by law or by the partnership agreement.
(2) A domestic limited partnership or a foreign limited partnership registered in this state is delinquent if:
(a) it does not file an annual report within the time prescribed by this chapter; or
(b) it fails to maintain a registered agent in this state for 60 consecutive days.
(3) (a) The division shall mail a notice of delinquency of a delinquent limited partnership to:
(i) the registered agent of the limited partnership; or
(ii) if there is no registered agent of record, at least one general partner of the limited partnership.
(b) The notice of delinquency required under Subsection (3)(a) shall state:
(i) the nature of the delinquency; and
(ii) that the limited partnership shall be dissolved unless within 60 days of the mailing of the notice of delinquency it corrects the delinquency.
(c) The division shall include with the notice of delinquency any forms necessary to correct the delinquency.
(4) (a) If the limited partnership does not remove the delinquency within 60 days from the date the division mails the notice of delinquency, the limited partnership's certificate or registration shall be dissolved involuntarily by the director of the division effective on the date specified in Subsection (4)(c).
(b) If a limited partnership's certificate or registration is dissolved under Subsection (4)(a), the division shall mail a certificate of dissolution to:
(i) the registered agent of the limited partnership; or
(ii) if there is no registered agent of record, at least one partner of the limited partnership.
(c) A limited partnership's date of dissolution is five days from the date the division mailed the certificate of dissolution under Subsection (4)(b).
(d) A dissolved limited partnership may not be reinstated except as set forth in Subsection (5).
(e) On the date of dissolution, any assumed names filed on behalf of the dissolved limited partnership under Title 42, Chapter 2, Conducting Business Under an Assumed Name, are canceled.
(f) Notwithstanding Subsection (4)(e), the name of a dissolved limited partnership and any assumed names filed on its behalf are not available for two years from the date of dissolution for use by any other person:
(i) transacting business in this state; or
(ii) doing business under an assumed name under Title 42, Chapter 2, Conducting Business Under an Assumed Name.
(g) Notwithstanding Subsection (4)(e), if the limited partnership that is dissolved is reinstated in accordance with this section, the registration of the name of the limited partnership and any assumed names filed on its behalf are reinstated back to the date of dissolution.
(5) Any limited partnership whose certificate or registration has been dissolved under this section or Section 48-2a-203 may be reinstated within two years following the date of dissolution upon:
(a) application; and
(b) payment of:
(i) all penalties; and
(ii) all reinstatement fees.
(6) A limited partner of a limited partnership is not liable as a general partner of the limited partnership solely by reason of the limited partnership having had its limited partnership certificate or registration dissolved.
(7) A limited partnership that has had its certificate or registration dissolved may not maintain any action, suit, or proceeding in any court of this state until it has reinstated its certificate or registration following dissolution.
(8) If the division denies a limited partnership's application for reinstatement following a dissolution under this section, the division shall mail the limited partnership written notice:
(a) setting forth the reasons for denying the application; and
(b) stating that the limited partnership has the right to appeal the division's determination to the executive director of the Department of Commerce in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(9) A notice or certificate mailed under this section shall be:
(a) mailed first-class, postage prepaid; and
(b) addressed to the most current mailing address appearing on the records of the division for:
(i) the registered agent of the limited partnership corporation, if the notice is required to be mailed to the registered agent; or
(ii) the partner of the limited partnership that is mailed the notice, if the notice is required to be mailed to a partner of the limited partnership.
Section 604. Section 48-2a-206 is amended to read:
48-2a-206
. Filing with the division.(1) An original and one copy of the certificate of limited partnership, and of any certificates of amendment or cancellation, or of any judicial decree of amendment or cancellation, shall be delivered to the division. A person who executes a certificate as an attorney-in-fact or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Unless the division finds that any certificate does not conform to law as to its form, upon receipt of all filing fees established under Section [63-38-3.2] 63J-1-303, it shall:
(a) place on the original and the copy a stamp or seal indicating the time, day, month, and year of the filing, the director of the division's signature, and the division's seal, or facsimiles thereof, and the name of the division;
(b) file the signed original in its office; and
(c) return the stamped copy to the person who filed it or his representative.
(2) The stamped copy of the certificate of limited partnership and of any certificate of amendment or cancellation shall be conclusive evidence that all conditions precedent required for the formation, amendment, or cancellation of a limited partnership have been complied with and the limited partnership has been formed, amended, or canceled under this chapter, except with respect to an action for involuntary cancellation of the limited partnership's certificate for fraud under Subsection 48-2a-203.5 (1)(a).
(3) Upon the filing of a certificate of amendment or judicial decree of amendment with the division, the certificate of limited partnership is amended as set forth in the certificate of amendment or judicial decree of amendment, and upon filing a certificate of cancellation, or of a judicial decree of cancellation, the division shall cancel the certificate of limited partnership effective as of the date the cancellation was filed or as of the date specified in the decree, unless a later effective date is specified in the cancellation.
Section 605. Section 48-2a-1107 is amended to read:
48-2a-1107
. Fees.The division may charge and collect fees in accordance with the provisions of Section [63-38-3.2] 63J-1-303.
Section 606. Section 48-2c-214 is amended to read:
48-2c-214
. Fees.Unless otherwise provided by statute, the division shall collect fees for its services in amounts determined by the department in accordance with the provisions of Section [63-38-3.2] 63J-1-303.
Section 607. Section 48-2c-1209 is amended to read:
48-2c-1209
. Appeal from denial of reinstatement.If the division denies a company's application for reinstatement under Section 48-2c-1208 following administrative dissolution, the division shall mail to the company in the manner provided in Subsection 48-2c-1207(6) written notice:
(1) setting forth the reasons for denying the application; and
(2) stating that the company has the right to appeal the division's determination to the executive director of the Department of Commerce in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 608. Section 49-11-613 is amended to read:
49-11-613
. Appeals procedure -- Right of appeal to hearing officer -- Board reconsideration -- Judicial review.(1) (a) All members, retirees, participants, alternative payees, or covered individuals of a system, plan, or program under this title shall acquaint themselves with their rights and obligations under this title.
(b) Any dispute regarding a benefit, right, obligation, or employment right under this title is subject to the procedures provided under this section.
(c) A person who disputes a benefit, right, obligation, or employment right under this title shall request a ruling by the executive director who may delegate the decision to the deputy director.
(d) A person who is dissatisfied by a ruling of the executive director or deputy director with respect to any benefit, right, obligation, or employment right under this title shall request a review of that claim by a hearing officer.
(2) The hearing officer shall:
(a) be hired by the executive director after consultation with the board;
(b) follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as specifically modified under this title;
(c) hear and determine all facts pertaining to applications for benefits under any system, plan, or program under this title and all matters pertaining to the administration of the office; and
(d) make conclusions of law in determining the person's rights under any system, plan, or program under this title and matters pertaining to the administration of the office.
(3) The board shall review and approve or deny all decisions of the hearing officer in accordance with rules adopted by the board.
(4) The moving party in any proceeding brought under this section shall bear the burden of proof.
(5) A party may file an application for reconsideration by the board upon any of the following grounds:
(a) that the board acted in excess of its powers;
(b) that the order or award was procured by fraud;
(c) that the evidence does not justify the determination of the hearing officer; or
(d) that the party has discovered new material evidence that could not, with reasonable diligence, have been discovered or procured prior to the hearing.
(6) The board shall affirm, reverse, or modify the decision of the hearing officer, or remand the application to the hearing officer for further consideration.
(7) A party aggrieved by the board's decision may obtain judicial review by complying with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(8) The board may make rules to implement this section.
Section 609. Section 49-14-201 is amended to read:
49-14-201
. System membership -- Eligibility.(1) Except as provided in Section 49-15-201, a public safety service employee of a participating employer participating in this system is eligible for service credit in this system at the earliest of:
(a) July 1, 1969, if the public safety service employee was employed by the participating employer on July 1, 1969, and the participating employer was participating in this system on that date;
(b) the date the participating employer begins participating in this system if the public safety service employee was employed by the participating employer on that date; or
(c) the date the public safety service employee is employed by the participating employer and is eligible to perform public safety service.
(2) (a) (i) A participating employer that has public safety service and firefighter service employees that require cross-training and duty shall enroll those dual purpose employees in the system in which the greatest amount of time is actually worked.
(ii) The employees shall either be full-time public safety service or full-time firefighter service employees of the participating employer.
(b) (i) Prior to transferring a dual purpose employee from one system to another, the participating employer shall receive written permission from the office.
(ii) The office may request documentation to verify the appropriateness of the transfer.
(3) The board may combine or segregate the actuarial experience of participating employers in this system for the purpose of setting contribution rates.
(4) (a) (i) Each participating employer participating in this system shall annually submit to the office a schedule indicating the positions to be covered under this system in accordance with this chapter.
(ii) The office may require documentation to justify the inclusion of any position under this system.
(b) If there is a dispute between the office and a participating employer or employee over any position to be covered, the disputed position shall be submitted to the Peace Officer Standards and Training Council established under Section 53-6-106 for determination.
(c) (i) The Peace Officer Standards and Training Council’s authority to decide eligibility for public safety service credit is limited to claims for coverage under this system for time periods after July 1, 1989.
(ii) A decision of the Peace Officer Standards and Training Council may not be applied to service credit earned in another system prior to July 1, 1989.
(iii) Except as provided under Subsection (4)(c)(iv), a decision of the Peace Officer Standards and Training Council granting a position coverage under this system may only be applied prospectively from the date of that decision.
(iv) A decision of the Peace Officer Standards and Training Council granting a position coverage under this system may be applied retroactively only if:
(A) the participating employer covered other similarly situated positions under this system during the time period in question; and
(B) the position otherwise meets all eligibility requirements for receiving service credit in this system during the period for which service credit is to be granted.
(5) The Peace Officer Standards and Training Council may use a subcommittee to provide a recommendation to the council in determining disputes between the office and a participating employer or employee over a position to be covered under this system.
(6) The Peace Officer Standards and Training Council shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in resolving coverage disputes in this system.
(7) A public safety employee who is transferred or promoted to an administration position not covered by this system shall continue to earn public safety service credit in this system as long as the employee remains employed in the same department.
(8) Any employee who is reassigned to the Department of Technology Services or to the Department of Human Resource Management, and who was a member of this system, shall be entitled to remain a member of this system.
(9) (a) To determine that a position is covered under this system, the office and, if a coverage dispute arises, the Peace Officer Standards and Training Council shall find that the position requires the employee to:
(i) place the employee's life or personal safety at risk; and
(ii) complete training as provided in Section 53-13-103, 53-13-104, or 53-13-105.
(b) If a position satisfies the requirements of Subsection (9)(a), the office and the Peace Officer Standards and Training Council shall consider whether or not the position requires the employee to:
(i) perform duties that consist primarily of actively preventing or detecting crime and enforcing criminal statutes or ordinances of this state or any of its political subdivisions;
(ii) perform duties that consist primarily of providing community protection; and
(iii) respond to situations involving threats to public safety and make emergency decisions affecting the lives and health of others.
(10) If a subcommittee is used to recommend the determination of disputes to the Peace Officer Standards and Training Council, the subcommittee shall comply with the requirements of Subsection (9) in making its recommendation.
(11) A final order of the Peace Officer Standards and Training Council regarding a dispute is a final agency action for purposes of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(12) Except as provided under Subsection (13), if a participating employer's public safety service employees are not covered by this system or under Chapter 15, Public Safety Noncontributory Retirement Act, as of January 1, 1998, those public safety service employees who may otherwise qualify for membership in this system shall, at the discretion of the participating employer, remain in their current retirement system.
(13) (a) A public safety service employee employed by an airport police department, which elects to cover its public safety service employees under the Public Safety Noncontributory Retirement System under Subsection (12), may elect to remain in the public safety service employee's current retirement system.
(b) The public safety service employee's election to remain in the current retirement system under Subsection (13)(a):
(i) shall be made at the time the employer elects to move its public safety service employees to a public safety retirement system;
(ii) documented by written notice to the participating employer; and
(iii) is irrevocable.
Section 610. Section 49-15-201 is amended to read:
49-15-201
. System membership -- Eligibility.(1) (a) A public safety service employee employed by the state after July 1, 1989, is eligible for service credit in this system.
(b) A public safety service employee employed by the state prior to July 1, 1989, may either elect to receive service credit in this system or continue to receive service credit under the system established under Chapter 14, Public Safety Contributory Retirement Act, by following the procedures established by the board under this chapter.
(2) (a) Public safety service employees of a participating employer other than the state that elected on or before July 1, 1989, to remain in the Public Safety Contributory Retirement System shall be eligible only for service credit in that system.
(b) (i) A participating employer other than the state that elected on or before July 1, 1989, to participate in this system shall, have allowed, prior to July 1, 1989, a public safety service employee to elect to participate in either this system or the Public Safety Contributory Retirement System.
(ii) Except as expressly allowed by this title, the election of the public safety service employee is final and may not be changed.
(c) A public safety service employee hired by a participating employer other than the state after July 1, 1989, shall become a member in this system.
(d) A public safety service employee of a participating employer other than the state who began participation in this system after July 1, 1989, is only eligible for service credit in this system.
(3) (a) (i) A participating employer that has public safety service and firefighter service employees that require cross-training and duty shall enroll those dual purpose employees in the system in which the greatest amount of time is actually worked.
(ii) The employees shall either be full-time public safety service or full-time firefighter service employees of the participating employer.
(b) (i) Prior to transferring a dual purpose employee from one system to another, the participating employer shall receive written permission from the office.
(ii) The office may request documentation to verify the appropriateness of the transfer.
(4) The board may combine or segregate the actuarial experience of participating employers in this system for the purpose of setting contribution rates.
(5) (a) (i) Each participating employer participating in this system shall annually submit to the office a schedule indicating the positions to be covered under this system in accordance with this chapter.
(ii) The office may require documentation to justify the inclusion of any position under this system.
(b) If there is a dispute between the office and a participating employer or employee over any position to be covered, the disputed position shall be submitted to the Peace Officer Standards and Training Council established under Section 53-6-106 for determination.
(c) (i) The Peace Officer Standards and Training Council’s authority to decide eligibility for public safety service credit is limited to claims for coverage under this system for time periods after July 1, 1989.
(ii) A decision of the Peace Officer Standards and Training Council may not be applied to service credit earned in another system prior to July 1, 1989.
(iii) Except as provided under Subsection (5)(c)(iv), a decision of the Peace Officer Standards and Training Council granting a position coverage under this system may only be applied prospectively from the date of that decision.
(iv) A decision of the Peace Officer Standards and Training Council granting a position coverage under this system may be applied retroactively only if:
(A) the participating employer covered other similarly situated positions under this system during the time period in question; and
(B) the position otherwise meets all eligibility requirements for receiving service credit in this system during the period for which service credit is to be granted.
(6) The Peace Officer Standards and Training Council may use a subcommittee to provide a recommendation to the council in determining disputes between the office and a participating employer or employee over a position to be covered under this system.
(7) The Peace Officer Standards and Training Council shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in resolving coverage disputes in this system.
(8) A public safety service employee who is transferred or promoted to an administration position not covered by this system shall continue to earn public safety service credit in this system as long as the employee remains employed in the same department.
(9) Any employee who is reassigned to the Department of Technology Services or to the Department of Human Resource Management, and who was a member in this system, shall be entitled to remain a member in this system.
(10) (a) To determine that a position is covered under this system, the office and, if a coverage dispute arises, the Peace Officer Standards and Training Council shall find that the position requires the employee to:
(i) place the employee's life or personal safety at risk; and
(ii) complete training as provided in Section 53-13-103, 53-13-104, or 53-13-105.
(b) If a position satisfies the requirements of Subsection (10)(a), the office and Peace Officer Standards and Training Council shall consider whether the position requires the employee to:
(i) perform duties that consist primarily of actively preventing or detecting crime and enforcing criminal statutes or ordinances of this state or any of its political subdivisions;
(ii) perform duties that consist primarily of providing community protection; and
(iii) respond to situations involving threats to public safety and make emergency decisions affecting the lives and health of others.
(11) If a subcommittee is used to recommend the determination of disputes to the Peace Officer Standards and Training Council, the subcommittee shall comply with the requirements of Subsection (10) in making its recommendation.
(12) A final order of the Peace Officer Standards and Training Council regarding a dispute is a final agency action for purposes of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(13) Except as provided under Subsection (14), if a participating employer's public safety service employees are not covered by this system under Chapter 14, Public Safety Contributory Retirement Act, as of January 1, 1998, those public safety service employees who may otherwise qualify for membership in this system shall, at the discretion of the participating employer, remain in their current retirement system.
(14) (a) A public safety service employee employed by an airport police department, which elects to cover its public safety service employees under the Public Safety Noncontributory Retirement System under Subsection (13), may elect to remain in the public safety service employee's current retirement system.
(b) The public safety service employee's election to remain in the current retirement system under Subsection (14)(a):
(i) shall be made at the time the employer elects to move its public safety service employees to a public safety retirement system;
(ii) documented by written notice to the participating employer; and
(iii) is irrevocable.
Section 611. Section 51-2a-301 is amended to read:
51-2a-301
. State auditor responsibilities.(1) Except for political subdivisions that do not receive or expend public funds, the state auditor shall adopt guidelines, qualifications criteria, and procurement procedures for use in the procurement of audit services for all entities that are required by Section 51-2a-201 to cause an accounting report to be made.
(2) The state auditor shall follow the notice, hearing, and publication requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) The state auditor shall:
(a) review the accounting report submitted to him under Section 51-2a-201; and
(b) if necessary, conduct additional inquiries or examinations of financial statements of the entity submitting that information.
(4) The governing board of each entity required by Section 51-2a-201 to submit an accounting report to the state auditor's office shall comply with the guidelines, criteria, and procedures established by the state auditor.
(5) Each fifth year, the state auditor shall:
(a) review the dollar criteria established in Section 51-2a-201 to determine if they need to be increased or decreased; and
(b) if the auditor determines that they need to be increased or decreased, notify the Legislature of that need.
(6) (a) The state auditor may require a higher level of accounting report than is required under Section 51-2a-201.
(b) The state auditor shall:
(i) develop criteria under which a higher level of accounting report may be required; and
(ii) provide copies of those criteria to entities required to analyze and report under Section 51-2a-201.
Section 612. Section 51-5-7 is amended to read:
51-5-7
. Expending plans and administrative expenses provided by legislative appropriation and included in governor's budget.(1) (a) Except as provided in Subsection (1)(b), the revenues and other resources of the governmental funds are subject to legislative review and appropriation for each fiscal period.
(b) Restricted Special Revenue Funds are subject to legislative review for each fiscal period.
(2) Notwithstanding the source of the revenues and the restrictions imposed upon the expenditure of the revenues, the planned expenditures for the governmental funds, except Restricted Special Revenue Funds, shall be incorporated into the governor's budget and submitted to the Legislature according to Section [63-38-2] 63J-1-201.
(3) Expenses required in the administrative activities of the Restricted Special Revenue Funds, the Enterprise Funds, the Internal Service Funds, and the Trust and Agency Funds are subject to legislative review each year.
(a) Pro forma financial statements, including balance sheets, revenue and expenditure statements, statements of changes in financial position, and other statements that may be required for these funds shall be included in the governor's budget as information items and submitted to the Legislature according to Section [63-38-2] 63J-1-201.
(b) If the operating results of any of these funds demonstrate that an appropriation is needed from any other fund or subfund, that appropriation shall be included in the governor's budget as a budget request.
Section 613. Section 51-7-3.5, which is renumbered from Section 63-13-1 is renumbered and amended to read:
[63-13-1
]. 51-7-3.5. Commences July 1st.The fiscal year of the state of Utah shall commence on the first day of July of each year.
Section 614. Section 51-9-101 is enacted to read:
CHAPTER 9. FUNDS AND ACCOUNTS ACT
Part 1. General Provisions
51-9-101. Title.
This chapter is known as the "Funds and Accounts Act."
Section 615. Section 51-9-201, which is renumbered from Section 63-97-201 is renumbered and amended to read:
Part 2. Tobacco Settlement Funds and Endowment
[63-97-201]. 51-9-201. Creation of Tobacco Settlement Restricted Account.
(1) There is created within the General Fund a restricted account known as the "Tobacco Settlement Restricted Account."
(2) The account shall earn interest.
(3) The account shall consist of:
(a) until July 1, 2003, 50% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998;
(b) on and after July 1, 2003 and until July 1, 2004, 80% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998;
(c) on and after July 1, 2004 and until July 1, 2005, 70% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998;
(d) on and after July 1, 2005 and until July 1, 2007, 75% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998;
(e) on and after July 1, 2007, 60% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998; and
(f) interest earned on the account.
(4) To the extent that funds will be available for appropriation in a given fiscal year, those funds shall be appropriated from the account in the following order:
(a) $10,300,000 to the Department of Health for the Children's Health Insurance Program created in Section 26-40-103 and for restoration of dental benefits in the Children's Health Insurance Program;
(b) $4,000,000 to the Department of Health for alcohol, tobacco, and other drug prevention, reduction, cessation, and control programs that promote unified messages and make use of media outlets, including radio, newspaper, billboards, and television, and with a preference in funding given to tobacco-related programs;
(c) $193,700 to the Administrative Office of the Courts and $1,296,300 to the Department of Human Services for the statewide expansion of the drug court program;
(d) $77,400 to the Board of Pardons, $81,700 to the Department of Corrections, and $350,900 to the Department of Human Services for a drug board pilot program;
(e) $4,000,000 to the State Board of Regents for the University of Utah Health Sciences Center to benefit the health and well-being of Utah citizens through in-state research, treatment, and educational activities; and
(f) any remaining funds as directed by the Legislature through appropriation.
(5) (a) If tobacco funds in dispute for attorneys fees are received by the state, those funds shall be divided and deposited in accordance with Subsection (3) and Section [63-97-301] 51-9-202.
(b) The amount appropriated from the Tobacco Settlement Restricted Account to the Department of Health for alcohol, tobacco, and other drug programs described in Subsection (4)(b), including the funding preference for tobacco-related programs, shall be increased by up to $2,000,000 in a given fiscal year to the extent that funds in dispute for attorneys fees are available to the state for appropriation from the account.
(6) Each state agency identified in Subsection (4) shall provide an annual report on the program and activities funded under Subsection (4) to:
(a) the Health and Human Services Interim Committee no later than September 1; and
(b) the Health and Human Services Joint Appropriations Subcommittee.
Section 616. Section 51-9-202, which is renumbered from Section 63-97-301 is renumbered and amended to read:
[63-97-301
]. 51-9-202. Permanent state trust fund.(1) Until July 1, 2003, 50% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998, shall be deposited into the permanent state trust fund created by and operated under Utah Constitution Article XXII, Section 4.
(2) On and after July 1, 2003 and until July 1, 2004 20% of the funds of any kind received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers shall be deposited into the permanent state trust fund created by and operated under Utah Constitution Article XXII, Section 4.
(3) On and after July 1, 2004 and until July 1, 2005, 30% of all funds of any kind received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers shall be deposited into the General Fund Budget Reserve Account created in Section [63-38-2.5] 63J-1-202.
(4) On and after July 1, 2005 and until July 1, 2007, 25% of all funds of any kind received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers shall be deposited into the permanent state trust fund created by and operated under Utah Constitution Article XXII, Section 4.
(5) On and after July 1, 2007, 40% of all funds of every kind that are received by the state that are related to the settlement agreement that the state entered into with leading tobacco manufacturers on November 23, 1998, shall be deposited into the permanent state trust fund created by and operated under Utah Constitution Article XXII, Section 4.
(6) Funds in the permanent state trust fund shall be deposited or invested pursuant to Section 51-7-12.1.
(7) (a) In accordance with Utah Constitution Article XXII, Section 4, the interest and dividends earned annually from the permanent state trust fund shall be deposited in the General Fund. There shall be transferred on an ongoing basis from the General Fund to the permanent state trust fund created under Utah Constitution Article XXII, Section 4, an amount equal to 50% of the interest and dividends earned annually from the permanent state trust fund. The amount transferred into the fund under this Subsection (7)(a) shall be treated as principal.
(b) Any annual interest or dividends earned from the permanent state trust fund that remain in the General Fund after Subsection (7)(a) may be appropriated by the Legislature.
(c) Any realized or unrealized gains or losses on investments in the permanent state trust fund shall remain in the permanent state trust fund.
(8) This section does not apply to funds deposited under Chapter 97a, Infrastructure and Economic Diversification Investment Account and Severance Tax Holding Account into the permanent state trust fund.
Section 617. Section 51-9-203, which is renumbered from Section 63-97-401 is renumbered and amended to read:
[63-97-401
]. 51-9-203. Requirements for tobacco programs.(1) To be eligible to receive funding under this [chapter] part for a tobacco prevention, reduction, cessation, or control program, an organization, whether private, governmental, or quasi-governmental, shall:
(a) submit a request to the Department of Health containing the following information:
(i) for media campaigns to prevent or reduce smoking, the request shall demonstrate sound management and periodic evaluation of the campaign's relevance to the intended audience, particularly in campaigns directed toward youth, including audience awareness of the campaign and recollection of the main message;
(ii) for school-based education programs to prevent and reduce youth smoking, the request shall describe how the program will be effective in preventing and reducing youth smoking;
(iii) for community-based programs to prevent and reduce smoking, the request shall demonstrate that the proposed program:
(A) has a comprehensive strategy with a clear mission and goals;
(B) provides for committed, caring, and professional leadership; and
(C) if directed toward youth:
(I) offers youth-centered activities in youth accessible facilities;
(II) is culturally sensitive, inclusive, and diverse;
(III) involves youth in the planning, delivery, and evaluation of services that affect them; and
(IV) offers a positive focus that is inclusive of all youth; and
(iv) for enforcement, control, and compliance program, the request shall demonstrate that the proposed program can reasonably be expected to reduce the extent to which tobacco products are available to individuals under the age of 19;
(b) agree, by contract, to file an annual written report with the Department of Health. The report shall contain the following:
(i) the amount funded;
(ii) the amount expended;
(iii) a description of the program or campaign and the number of adults and youth who participated;
(iv) specific elements of the program or campaign meeting the applicable criteria set forth in Subsection (1)(a); and
(v) a statement concerning the success and effectiveness of the program or campaign;
(c) agree, by contract, to not use any funds received under this [chapter] part directly or indirectly, to:
(i) engage in any lobbying or political activity, including the support of, or opposition to, candidates, ballot questions, referenda, or similar activities; or
(ii) engage in litigation with any tobacco manufacturer, retailer, or distributor, except to enforce:
(A) the provisions of the Master Settlement Agreement;
(B) Title 26, Chapter 38, Utah Clean Air Act;
(C) Title 26, Chapter 42, Civil Penalties for Tobacco Sales to Underaged Persons; and
(D) Title 77, Chapter 39, Sale of Tobacco and Alcohol to Underaged Persons; and
(d) agree, by contract, to repay the funds provided under this [chapter] part if the organization:
(i) fails to file a timely report as required by Subsection (1)(b); or
(ii) uses any portion of the funds in violation of Subsection (1)(c).
(2) The Department of Health shall review and evaluate the success and effectiveness of any program or campaign that receives funding pursuant to a request submitted under Subsection (1). The review and evaluation:
(a) shall include a comparison of annual smoking trends;
(b) may be conducted by an independent evaluator; and
(c) may be paid for by funds appropriated from the account for that purpose.
(3) The Department of Health shall annually report to the Health and Human Services Appropriations Subcommittee on the reviews conducted pursuant to Subsection (2).
(4) An organization that fails to comply with the contract requirements set forth in Subsection (1) shall:
(a) repay the state as provided in Subsection (1)(d); and
(b) be disqualified from receiving funds under this [chapter] part in any subsequent fiscal year.
(5) The attorney general shall be responsible for recovering funds that are required to be repaid to the state under this section.
(6) Nothing in this section may be construed as applying to funds that are not appropriated under this [chapter] part.
Section 618. Section 51-9-301, which is renumbered from Section 63-97a-101 is renumbered and amended to read:
Part 3. Infrastructure and Economic Diversification Investment
Account and Severance Tax Holding Account
[63-97a-101]. 51-9-301. Title.
This [chapter] part is known as the "Infrastructure and Economic Diversification Investment Account and Severance Tax Holding Account."
Section 619. Section 51-9-302, which is renumbered from Section 63-97a-102 is renumbered and amended to read:
[63-97a-102
]. 51-9-302. Definitions.As used in this [chapter] part:
(1) "Infrastructure and Economic Diversification Investment Account" means the Infrastructure and Economic Diversification Investment Account created in Section [63-97a-201] 51-9-303.
(2) "Permanent state trust fund" means the permanent state trust fund created under Utah Constitution Article XXII, Section 4.
(3) "Severance Tax Holding Account" means the Severance Tax Holding Account created in Section [63-97a-202] 51-9-304.
Section 620. Section 51-9-303, which is renumbered from Section 63-97a-201 is renumbered and amended to read:
[63-97a-201
]. 51-9-303. Creation of Infrastructure and Economic Diversification Investment Account.(1) (a) There is created a restricted account within the General Fund known as the "Infrastructure and Economic Diversification Investment Account."
(b) The Infrastructure and Economic Diversification Investment Account shall consist of:
(i) all monies credited to the account under Section [63-97a-202] 51-9-304;
(ii) appropriations from the Legislature;
(iii) grants from private foundations; and
(iv) interest and investment earnings on account monies.
(2) (a) The Infrastructure and Economic Diversification Investment Account shall earn interest.
(b) All interest earned on monies in the Infrastructure and Economic Diversification Investment Account shall be deposited into the Infrastructure and Economic Diversification Investment Account.
(3) The Legislature may appropriate monies from the Infrastructure and Economic Diversification Investment Account for infrastructure and economic diversification investment projects.
Section 621. Section 51-9-304, which is renumbered from Section 63-97a-202 is renumbered and amended to read:
[63-97a-202
]. 51-9-304. Creation of Severance Tax Holding Account -- Distribution of funds in the account.(1) (a) There is created a restricted account within the General Fund known as the "Severance Tax Holding Account."
(b) The Severance Tax Holding Account shall consist of:
(i) appropriations from the Legislature;
(ii) grants from private foundations; and
(iii) interest and investment earnings on Severance Tax Holding Account monies.
(2) (a) The Severance Tax Holding Account shall earn interest.
(b) All interest earned on monies in the Severance Tax Holding Account shall be deposited into the Severance Tax Holding Account.
(3) If authorized by law the Division of Finance shall deposit all of the monies in the Severance Tax Holding Account as of June 30, 2009, into the permanent state trust fund.
(4) The state treasurer shall invest and separately account for the earnings on funds that are deposited into the permanent state trust fund under this section.
(5) (a) In accordance with Utah Constitution Article XXII, Section 4, the interest and dividends earned annually on revenue from severance taxes that are deposited into the permanent state trust fund shall be deposited in the General Fund.
(b) Interest and dividends earned on revenue from severance taxes that are deposited in the General Fund pursuant to Subsection (5)(a) shall be credited to the Infrastructure and Economic Diversification Investment Account created in Section [63-97a-201] 51-9-303.
Section 622. Section 51-9-401, which is renumbered from Section 63-63a-1 is renumbered and amended to read:
Part 4. Crime Victims Reparations Trust, Public Safety Support Funds, Substance
Abuse Prevention Account, and Services for Victims of Domestic Violence Account
[63-63a-1]. 51-9-401. Surcharge -- Application and exemptions.
(1) (a) A surcharge shall be paid on all criminal fines, penalties, and forfeitures imposed by the courts.
(b) The surcharge shall be:
(i) 85% upon conviction of a:
(A) felony;
(B) class A misdemeanor;
(C) violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving; or
(D) class B misdemeanor not classified within Title 41, Motor Vehicles, including violation of comparable county or municipal ordinances; or
(ii) 35% upon conviction of any other offense, including violation of county or municipal ordinances not subject to the 85% surcharge.
(2) The surcharge may not be imposed:
(a) upon nonmoving traffic violations;
(b) upon court orders when the offender is ordered to perform compensatory service work in lieu of paying a fine; and
(c) upon penalties assessed by the juvenile court as part of the nonjudicial adjustment of a case under Section 78-3a-502.
(3) (a) The surcharge and the exceptions under Subsections (1) and (2) also apply to all fines, penalties, and forfeitures imposed on juveniles for conduct that would be criminal if committed by an adult.
(b) However, the surcharge does not include amounts assessed or collected separately by juvenile courts for the Juvenile Restitution Account, which is independent of this [chapter] part and does not affect the imposition or collection of the surcharge.
(4) The surcharge under this section shall be imposed in addition to the fine charged for a civil or criminal offense, and no reduction may be made in the fine charged due to the surcharge imposition.
(5) Fees, assessments, and surcharges related to criminal or traffic offenses shall be authorized and managed by this [chapter] part rather than attached to particular offenses.
Section 623. Section 51-9-402, which is renumbered from Section 63-63a-2 is renumbered and amended to read:
[63-63a-2
]. 51-9-402. Division of collected monies retained by state treasurer and local governmental collecting entity -- Purpose of surcharge -- Allocation of collections -- Financial information.(1) The amount of the surcharge imposed under this [chapter] part by courts of record shall be collected before any fine and deposited with the state treasurer.
(2) The amount of the surcharge and the amount of criminal fines, penalties, and forfeitures imposed under this [chapter] part by courts not of record shall be collected concurrently.
(a) As monies are collected on criminal fines, penalties, and forfeitures subject to the 85% surcharge, the monies shall be divided pro rata so that the local governmental collecting entity retains 54% of the collected monies and the state retains 46% of the collected monies.
(b) As monies are collected on criminal fines, penalties, and forfeitures subject to the 35% surcharge, the monies shall be divided pro rata so that the local governmental collecting entity retains 74% of the collected monies and the state retains 26% of the collected monies.
(c) The court shall deposit with the state treasurer the surcharge portion of all monies as they are collected.
(3) Courts of record, courts not of record, and administrative traffic proceedings shall collect financial information to determine:
(a) the total number of cases in which:
(i) a final judgment has been rendered;
(ii) surcharges and fines are paid by partial or installment payment; and
(iii) the judgment is fulfilled by an alternative method upon the court's order;
(b) the total dollar amounts of surcharges owed to the state and fines owed to the state and county or municipality, including:
(i) waived surcharges;
(ii) uncollected surcharges; and
(iii) collected surcharges.
(4) The courts of record, courts not of record, and administrative traffic proceedings shall report all collected financial information monthly to the Administrative Office of the Courts. The collected information shall be categorized by cases subject to the 85% and 35% surcharge.
(5) The purpose of the surcharge is to finance the trust funds and support accounts as provided in this [chapter] part.
(6) (a) From the surcharge, the Division of Finance shall allocate in the manner and for the purposes described in Sections [63-63a-3] 51-9-403 through [63-63a-10] 51-9-411.
(b) Allocations shall be made on a fiscal year basis.
(7) The provisions of Sections [63-63a-1] 51-9-401 and [63-63a-2] 51-9-402 may not impact the distribution and allocation of fines and forfeitures imposed in accordance with Sections 23-14-13, 78-3-14.5, and 78-5-116.
Section 624. Section 51-9-403, which is renumbered from Section 63-63a-3 is renumbered and amended to read:
[63-63a-3
]. 51-9-403. EMS share of surcharge -- Accounting.(1) The Division of Finance shall allocate 14% of the collected surcharge established in Section [63-63a-1] 51-9-401, but not to exceed the amount appropriated by the Legislature, to the Emergency Medical Services (EMS) Grants Program Account under Section 26-8a-207.
(2) The amount shall be recorded by the Department of Health as a dedicated credit.
Section 625. Section 51-9-404, which is renumbered from Section 63-63a-4 is renumbered and amended to read:
[63-63a-4
]. 51-9-404. Distribution of surcharge amounts.(1) In this section:
(a) "Reparation fund" means the Crime Victim Reparation Fund.
(b) "Safety account" means the Public Safety Support Account.
(2) (a) There is created a restricted special revenue fund known as the "Crime Victim Reparation Fund" to be administered and distributed as provided in this [chapter] part by the Reparations Office under [Title 63, Chapter 25a, Part 4,] Title 63M, Chapter 7, Part 5, Crime Victims' Reparations Act, in cooperation with the Division of Finance.
(b) Monies deposited in this fund are for victim reparations, criminal justice and substance abuse, other victim services, and, as appropriated, for administrative costs of the Commission on Criminal and Juvenile Justice under [Title 63, Chapter 25a] Title 63M, Chapter 7.
(3) (a) There is created a restricted account in the General Fund known as the "Public Safety Support Account" to be administered and distributed by the Department of Public Safety in cooperation with the Division of Finance as provided in this [chapter] part.
(b) Monies deposited in this account shall be appropriated to:
(i) the Division of Peace Officer Standards and Training (POST) as described in Title 53, Chapter 6, Peace Officer Standards and Training Act; and
(ii) the Office of the Attorney General for the support of the Utah Prosecution Council established in Title 67, Chapter 5a, and the fulfillment of the council's duties.
(4) The Division of Finance shall allocate from the collected surcharge established in Section [63-63a-1] 51-9-401:
(a) 35% to the reparation fund;
(b) 18.5% to the safety account for POST, but not to exceed the amount appropriated by the Legislature; and
(c) 3% to the safety account for support of the Utah Prosecution Council, but not to exceed the amount appropriated by the Legislature.
(5) (a) In addition to the funding provided by other sections of this [chapter] part, a percentage of the income earned by inmates working for correctional industries in a federally certified private sector/prison industries enhancement program shall be deposited in the reparation fund.
(b) The percentage of income deducted from inmate pay under Subsection (5)(a) shall be determined by the executive director of the Department of Corrections in accordance with the requirements of the private sector/prison industries enhancement program.
(6) (a) In addition to other monies collected from the surcharge, judges are encouraged to, and may in their discretion, impose additional reparations to be paid into the reparation fund by convicted criminals.
(b) The additional discretionary reparations may not exceed the statutory maximum fine permitted by Title 76, Utah Criminal Code, for that offense.
Section 626. Section 51-9-405, which is renumbered from Section 63-63a-5 is renumbered and amended to read:
[63-63a-5
]. 51-9-405. Substance Abuse Prevention Account established -- Funding -- Uses.(1) There is created a restricted account within the General Fund known as the Substance Abuse Prevention Account.
(2) (a) The Division of Finance shall allocate to the Substance Abuse Prevention Account from the collected surcharge established in Section [63-63a-1] 51-9-401:
(i) 2.5% for the juvenile court, but not to exceed the amount appropriated by the Legislature; and
(ii) 2.5% for the State Office of Education, but not to exceed the amount appropriated by the Legislature.
(b) The juvenile court shall use the allocation to pay for community service programs required by Subsection 78-3a-118(2)(m).
(c) The State Office of Education shall use the allocation in public school programs for:
(i) substance abuse prevention and education;
(ii) substance abuse prevention training for teachers and administrators; and
(iii) district and school programs to supplement, not supplant, existing local prevention efforts in cooperation with local substance abuse authorities.
Section 627. Section 51-9-406, which is renumbered from Section 63-63a-6 is renumbered and amended to read:
[63-63a-6
]. 51-9-406. Victims of Domestic Violence Services Account established -- Funding -- Uses.(1) There is created a restricted account in the General Fund known as the Victims of Domestic Violence Services Account.
(2) (a) The Division of Finance shall allocate to the Victims of Domestic Violence Services Account from the collected surcharge established in Section [63-63a-1] 51-9-401:
(i) 4% for the Division for Domestic Violence Services, but not to exceed the amount appropriated by the Legislature; and
(ii) .5% for the Office of the Attorney General, but not to exceed the amount appropriated by the Legislature.
(b) The attorney general shall use the allocation for training municipal and county attorneys in the prosecution of domestic violence offenses.
Section 628. Section 51-9-407, which is renumbered from Section 63-63a-7 is renumbered and amended to read:
[63-63a-7
]. 51-9-407. Intoxicated Driver Rehabilitation Account share of surcharge.The Division of Finance shall allocate 7.5% of the collected surcharge established in Section [63-63a-1] 51-9-401, but not to exceed the amount appropriated by the Legislature, to the Intoxicated Driver Rehabilitation Account established by Section 62A-15-503.
Section 629. Section 51-9-408, which is renumbered from Section 63-63a-8 is renumbered and amended to read:
[63-63a-8
]. 51-9-408. Children's Legal Defense Account.(1) There is created a restricted account within the General Fund known as the Children's Legal Defense Account.
(2) The purpose of the Children's Legal Defense Account is to provide for programs that protect and defend the rights, safety, and quality of life of children.
(3) The Legislature shall appropriate money from the account for the administrative and related costs of the following programs:
(a) implementing the Mandatory Educational Course on Children's Needs for Divorcing Parents relating to the effects of divorce on children as provided in Sections 30-3-4, 30-3-7, 30-3-10.3, 30-3-11.3, 30-3-15.3, and 30-3-18, and the Mediation Pilot Program - Child Custody or Parent-time as provided in Sections 30-3-15.3 and 30-3-18;
(b) implementing the use of guardians ad litem as provided in Sections 30-3-5.2, 78-3a-318, 78-3a-912, 78-11-6, and 78-7-9; the training of guardian ad litems and volunteers as provided in Section 78-3a-912; and termination of parental rights as provided in Sections 78-3a-118, 78-3a-119, 78-3a-903, and Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act. This account may not be used to supplant funding for the guardian ad litem program in the juvenile court as provided in Section 78-3a-912; and
(c) implementing and administering the Expedited Parent-time Enforcement Pilot Program as provided in Section 30-3-38.
(4) The following withheld fees shall be allocated only to the Children's Legal Defense Account and used only for the purposes provided in Subsections (3)(a) through (c):
(a) the additional $10 fee withheld on every marriage license issued in the state of Utah as provided in Section 17-16-21; and
(b) a fee of $4 shall be withheld from the existing civil filing fee collected on any complaint, affidavit, or petition in a civil, probate, or adoption matter in every court of record.
(5) The Division of Finance shall allocate the monies described in Subsection (4) from the General Fund to the Children's Legal Defense Account.
(6) Any funds in excess of $200,000 remaining in the restricted account as of June 30 of any fiscal year shall lapse into the General Fund.
Section 630. Section 51-9-409, which is renumbered from Section 63-63a-8.5 is renumbered and amended to read:
[63-63a-8.5
]. 51-9-409. Guardian Ad Litem Services Account established -- Funding -- Uses.There is created in the General Fund a restricted account known as the Guardian Ad Litem Services Account, for the purpose of funding the Office of the Guardian Ad Litem Director, in accordance with the provisions of Sections 78-3a-911 and 78-3a-912. The Division of Finance shall allocate 1.75% of the collected surcharge established in Section [63-63a-1] 51-9-401 to the Guardian Ad Litem Services Account. That amount may not, however, exceed the amount appropriated by the Legislature.
Section 631. Section 51-9-410, which is renumbered from Section 63-63a-9 is renumbered and amended to read:
[63-63a-9
]. 51-9-410. Statewide Warrant Operations Account -- Share of surcharge -- Use.(1) There is created a restricted account within the General Fund known as the Statewide Warrant Operations Account.
(2) The Division of Finance shall allocate 2.5% of the collected surcharge established under Section [63-63a-1] 51-9-401, but not to exceed the amount appropriated by the Legislature, to this account.
(3) The Legislature may appropriate money from the restricted account to the Department of Public Safety to pay for statewide warrant system costs incurred under Section 53-10-208.
Section 632. Section 51-9-411, which is renumbered from Section 63-63a-10 is renumbered and amended to read:
[63-63a-10
]. 51-9-411. Law Enforcement Operations Account -- Share of surcharge -- Uses.(1) As used in this section:
(a) "Account" means the Law Enforcement Operations Account.
(b) "Commission" means the Commission on Criminal and Juvenile Justice created in Section [63-25a-101] 63M-7-201.
(c) "Law enforcement agency" means a state or local law enforcement agency.
(d) "Other appropriate agency" means a state or local government agency, or a nonprofit organization, that works to prevent illegal drug activity and enforce laws regarding illegal drug activity and related criminal activity by:
(i) programs, including education, prevention, treatment, and research programs; and
(ii) enforcement of laws regarding illegal drugs.
(2) There is created a restricted account within the General Fund known as the Law Enforcement Operations Account.
(3) (a) The Division of Finance shall allocate the balance of the collected surcharge under Section [63-63a-1] 51-9-401 that is not allocated under [Title 63, Chapter 63a] Title 51, Chapter 9, Part 4, Crime Victim Reparation Trust, Public Safety Support Funds, Substance Abuse Prevention Account, and Services for Victims of Domestic Violence Account, to the account, to be appropriated by the Legislature.
(b) Money in the account shall be appropriated to the commission for implementing law enforcement operations and programs related to reducing illegal drug activity and related criminal activity as listed in Subsection (5).
(4) (a) The commission shall allocate grants of funds from the account for the purposes under Subsection (5) to state, local, or multijurisdictional law enforcement agencies and other appropriate agencies.
(b) The grants shall be made by an application process established by the commission in accordance with Subsection (6).
(5) (a) The first priority of the commission is to annually allocate not more than $2,500,000, depending upon funding available from other sources, to directly fund the operational costs of state and local law enforcement agencies' drug or crime task forces, including multijurisdictional task forces.
(b) The second priority of the commission is to allocate grants for specified law enforcement agency functions and other agency functions as the commission finds appropriate to more effectively reduce illegal drug activity and related criminal activity, including providing education, prevention, treatment, and research programs.
(6) (a) In allocating grants and determining the amount of the grants, the commission shall consider:
(i) the demonstrated ability of the agency to appropriately use the grant to implement the proposed functions and how this function or task force will add to the law enforcement agency's current efforts to reduce illegal drug activity and related criminal activity; and
(ii) the agency's cooperation with other state and local agencies and task forces.
(b) Agencies qualify for a grant only if they demonstrate compliance with all reporting and policy requirements applicable under this section and under [Title 63, Chapter 25a] Title 63M, Chapter 7, Criminal Justice and Substance Abuse, in order to qualify as a potential grant recipient.
(7) Recipient agencies may only use grant monies after approval or appropriation by the agency's governing body, and a determination that the grant monies are nonlapsing.
(8) A recipient law enforcement agency may use funds granted under this section only for the purposes stated by the commission in the grant.
(9) For each fiscal year, any law enforcement agency that receives a grant from the commission under this section shall prepare, and file with the commission and the state auditor, a report in a form specified by the commission. The report shall include the following regarding each grant:
(a) the agency's name;
(b) the amount of the grant;
(c) the date of the grant;
(d) how the grant has been used; and
(e) a statement signed by both the agency's or political subdivision's executive officer or designee and by the agency's legal counsel, that all grant funds were used for law enforcement operations and programs approved by the commission and that relate to reducing illegal drug activity and related criminal activity, as specified in the grant.
(10) The commission shall report in writing to the legislative Law Enforcement and Criminal Justice Interim Committee annually regarding the grants allocated under this section, including the amounts and uses of the grants.
Section 633. Section 51-9-501, which is renumbered from Section 63-88-101 is renumbered and amended to read:
Part 5. Navajo Trust Fund
[63-88-101]. 51-9-501. Definitions.
As used in this [chapter] part:
(1) "Administrative expenditures" means:
(a) expenditures for professional services;
(b) expense reimbursement for the Dineh Committee; and
(c) expense reimbursement, salaries, and benefits for the trust administrator and the trust administrator's staff.
(2) "Assessment" means taking one of the following actions to assess the health, education, and general welfare needs of Navajos:
(a) a survey of Navajos that includes:
(i) a random sample large enough to secure an accurate representation of their needs; and
(ii) a response rate large enough to provide an accurate representation of those needs;
(b) at least three public hearings held to survey and solicit Navajo needs that are advertised for two weeks before the hearing by:
(i) announcements by the:
(A) Utah Navajo Chapters, if allowed by the chapter; and
(B) Blue Mountain Dine';
(ii) notice posted in the chapter buildings and other public locations, if allowed by the chapter;
(iii) notice of the meeting announced on the radio or television; and
(iv) notice of the meeting published at least once per week for two consecutive weeks in any newspapers of general circulation within the Navajo community; or
(c) a physical inventory:
(i) conducted by the Office of Trust Administrator;
(ii) coordinated with:
(A) each Utah Navajo Chapter;
(B) the Blue Mountain Dine'; and
(C) other sources; and
(iii) conducted to determine needs including:
(A) the number and capacity of public facilities;
(B) the extent of graveled and paved:
(I) roads; or
(II) air strips;
(C) the inventory of water resources;
(D) the extent of residential electrical power distribution; and
(E) the number and condition of housing units.
(3) "Assessment analysis results" means the analysis:
(a) of the results of the assessment required by Section [63-88-105] 51-9-505; and
(b) that is developed by the Dineh Committee and the trust administrator in accordance with Section [63-88-105] 51-9-505.
(4) "Blue Mountain Dine'" means the off-reservation Navajo community organization known as the Blue Mountain Dine'.
(5) "Board of trustees" or "board" means the board of trustees created in Section [63-88-103] 51-9-503.
(6) "Business enterprise" means a sole proprietorship, partnership, corporation, or other private entity organized to provide goods or services for a profit.
(7) "Capital" means an investment by the owner of a business enterprise:
(a) in:
(i) cash;
(ii) equipment;
(iii) land; or
(iv) other assets similar to that described in Subsections (7)(a)(i) through (iii); and
(b) that is pledged to be used in the operation of the business enterprise.
(8) "Dineh Committee" means the Dineh Committee created in Section [63-88-107] 51-9-507.
(9) "Income" means all revenues from investments made by the state treasurer of the trust fund principal.
(10) "Navajos" means San Juan County, Utah Navajos.
(11) "Office of Trust Administrator" means the office created in Section [63-88-104] 51-9-504.
(12) "Principal" means:
(a) the balance of the trust fund as of February 26, 1992; and
(b) all revenue to the trust fund from whatever source except income as defined in Subsection (9).
(13) "Service provider" means any of the following that provides goods or services to Navajos:
(a) a business enterprise;
(b) a private nonprofit organization; or
(c) a government entity.
(14) "Trust administrator" means the professional trust administrator appointed as provided in this [chapter] part.
(15) "Trust fund" or "fund" means the Navajo Trust Fund created by Section [63-88-102] 51-9-502.
(16) "Utah Navajo Chapter" means the following chapters of the Navajo Nation:
(a) Aneth Chapter;
(b) Mexican Water Chapter;
(c) Navajo Mountain Chapter;
(d) Oljato Chapter;
(e) Dennehotso Chapter;
(f) Red Mesa Chapter; and
(g) Teec Nos Pos Chapter.
Section 634. Section 51-9-502, which is renumbered from Section 63-88-102 is renumbered and amended to read:
[63-88-102
]. 51-9-502. Trust Fund -- Creation -- Oversight.(1) There is created a private-purpose trust fund entitled the "Navajo Trust Fund."
(2) The fund consists of:
(a) revenues received by the state that represent the 37-1/2% of the net oil royalties from the Aneth Extension of the Navajo Indian Reservation required by P.L. 72-403, 47 Stat. 1418, to be paid to the state;
(b) monies received by the trust administrator or Dineh Committee from any contracts executed by:
(i) the trust administrator;
(ii) the board; or
(iii) the Dineh Committee;
(c) appropriations made to the fund by the Legislature, if any;
(d) income as defined in Subsection [63-88-101] 51-9-501(9); and
(e) other revenues received from other sources.
(3) The Division of Finance shall account for the receipt and expenditures of fund monies.
(4) (a) The state treasurer shall invest fund monies by following the procedures and requirements of Title 51, Chapter 7, State Money Management Act.
(b) (i) The fund shall earn interest.
(ii) The state treasurer shall deposit all interest or other revenue earned from investment of the fund back into the fund.
(5) The state auditor shall:
(a) conduct an annual audit of the fund's finances, internal controls, and compliance with statutes, rules, policies, and regulations according to the procedures and requirements of Title 67, Chapter 3, Auditor; and
(b) deliver a copy of that audit report to the:
(i) board;
(ii) trust administrator;
(iii) Dineh Committee;
(iv) Office of Legislative Research and General Counsel for presentation to the Native American Legislative Liaison Committee, created in Section 36-22-1;
(v) governor's office;
(vi) Division of Indian Affairs;
(vii) U.S. Bureau of Indian Affairs;
(viii) Navajo Nation; and
(ix) U.S. Secretary of the Interior.
Section 635. Section 51-9-503, which is renumbered from Section 63-88-103 is renumbered and amended to read:
[63-88-103
]. 51-9-503. Board of Trustees of the Utah Navajo Trust Fund.(1) (a) There is created a Board of Trustees of the Utah Navajo Trust Fund composed of three members:
(i) the State Treasurer;
(ii) the Director of the Division of Finance; and
(iii) a state officer or employee appointed by the governor, with the consent of the Senate, to a four-year term.
(b) The State Treasurer is chair of the board.
(c) Three members of the board are a quorum.
(d) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(2) (a) The board shall either:
(i) contract with a person to act as trust administrator by following the procedures and requirements of [Chapter 56,] Title 63G, Chapter 6, Utah Procurement Code and, where not provided for by this [chapter] part, define the trust administrator's duties and responsibilities; or
(ii) if unable to find a qualified person under Subsection (2)(a)(i) to act as trust administrator for a reasonable cost, hire a qualified person to act as trust administrator and, where not provided for by this [chapter] part, define the trust administrator's duties and responsibilities.
(b) If the board hires a trust administrator under authority of Subsection (2)(a)(ii), the board may hire, or authorize the trust administrator to hire, other persons necessary to assist the trust administrator and the board to perform the duties required by this [chapter] part.
(3) The board shall:
(a) on behalf of the state, act as trustee of the trust fund and exercise the state's fiduciary responsibilities;
(b) meet at least once every other month;
(c) review and approve all policies, projections, rules, criteria, procedures, forms, standards, and performance goals established by the trust administrator;
(d) review and approve the trust fund budget prepared by the trust administrator;
(e) review all progress reports from programs financed by the trust fund;
(f) review financial records of the trust fund, including trust fund receipts, expenditures, and investments; and
(g) do any other things necessary to perform the state of Utah's fiduciary obligations under the trust fund.
(4) The attorney general shall:
(a) act as legal counsel and provide legal representation to the Board of Trustees; and
(b) attend, or direct an attorney from the attorney general's office to attend, each meeting of the Board of Trustees.
Section 636. Section 51-9-504, which is renumbered from Section 63-88-104 is renumbered and amended to read:
[63-88-104
]. 51-9-504. Office of Trust Administrator -- Creation.(1) If the board appoints a trust administrator under Subsection [63-88-103] 51-9-503 (2)(a)(ii), there is created an Office of Trust Administrator in the Department of Administrative Services.
(2) (a) The trust administrator appointed as provided in Section [63-88-103] 51-9-503(2)(a)(ii) shall administer the office.
(b) The Department of Administrative Services shall provide physical space and logistical and administrative support to the office but may not direct the activities of the office or the trust administrator.
(c) The Board of Trustees and the Office of Trust Administrator shall assume all of the functions, powers, duties, rights, and responsibilities of:
(i) the Commission of State Indian Affairs;
(ii) the Board of Indian Affairs;
(iii) the Dineh Committee, except as provided in this [chapter] part; and
(iv) the Division of Indian Affairs, on all matters connected with the trust fund or its proceeds.
Section 637. Section 51-9-505, which is renumbered from Section 63-88-105 is renumbered and amended to read:
[63-88-105
]. 51-9-505. Trust administrator -- Duties.(1) Under the direction of the board, the trust administrator shall:
(a) review the documents and decisions highlighting the history of the trust fund, including:
(i) the Nelson report, prepared as part of the Bigman v. Utah Navajo Development Council Inc. C77-0031;
(ii) the November 1991 performance audit of the Utah Navajo Trust Fund by the legislative auditor general;
(iii) Sakezzie v. Utah Indian Affairs Commission, 198 F. Supp. 218 (1961);
(iv) Sakezzie v. Utah Indian Affairs Commission, 215 F. Supp. 12 (1963); and
(v) the September 8, 1977, consent decree, the stipulation dated November 29, 1984, modifying the consent decree, and the court's memorandum opinion dated September 25, 1978, in Bigman v. Utah Navajo Development Council, Inc., C77-0031;
(b) review all potential sources of trust fund revenues;
(c) prepare annual projections of monies that will be available for Navajo programs;
(d) identify all property owned by the trust fund;
(e) establish and maintain a record system to retain records relating to the trust fund's property;
(f) review all existing and proposed programs financed by the trust fund;
(g) evaluate whether or not the programs described in Subsection (1)(f) are the most practical and cost-efficient means to provide the desired benefit to Navajos;
(h) consult regularly with the administrators of all programs financed by the trust fund to obtain progress reports on all programs;
(i) attend all meetings of:
(i) the Dineh Committee; and
(ii) the board of trustees;
(j) establish written policies identifying expenses payable from the fund for Dineh Committee members;
(k) certify that all expenditures from the trust fund:
(i) comply with the state's fiduciary responsibilities as trustee of the fund; and
(ii) are consistent with this section;
(l) make an annual report:
(i) to the:
(A) board;
(B) the governor; and
(C) the Native American Legislative Liaison Committee, created in Section 36-22-1; and
(ii) that:
(A) identifies the source and amount of all revenue received by the fund;
(B) identifies the recipient, purpose, and amount of all expenditures from the fund;
(C) identifies specifically each of the fund's investments and the actual return and the rate of return from each investment; and
(D) recommends any necessary statutory changes to:
(I) improve administration of the fund; or
(II) protect the state from liability as trustee;
(m) establish, in conjunction with the state treasurer, the state auditor, and the Division of Finance, appropriate accounting practices for all trust fund receipts, expenditures, and investments according to generally accepted accounting principles;
(n) provide summary records of trust fund receipts, expenditures, and investments to the board and to the Dineh Committee at each of their meetings;
(o) pay administrative expenses from the fund;
(p) report monthly to the board about:
(i) the trust administrator's activities; and
(ii) the status of the trust fund; and
(q) call additional meetings of the Dineh Committee when necessary.
(2) In conjunction with the Dineh Committee and under the direction of the board, the trust administrator shall:
(a) subject to Subsection (4), conduct an assessment at least every two years of the needs of Navajos;
(b) before the beginning of each fiscal year, based on the assessment required by Subsection (2)(a), develop assessment analysis results that allow the establishment of a list of the needs of Navajos for that year to be used for the annual budget;
(c) before the beginning of each fiscal year, develop and approve an annual budget for the trust fund;
(d) develop an ethics and conflict of interest policy that emphasizes the need to avoid even the appearance of conflict of interest or impropriety that is to apply to:
(i) the trust administrator;
(ii) the trust administrator's employees; and
(iii) the Dineh Committee;
(e) require the trust administrator, each of the trust administrator's employees, and each Dineh Committee member to sign and keep on file written documentation that acknowledges:
(i) their receipt of the ethics and conflict of interest policy described in Subsection (2)(d); and
(ii) their willingness to abide by the provisions of the ethics and conflict of interest policy described in Subsection (2)(d); and
(f) make expenditures from the fund "for the health, education, and general welfare of the Navajo Indians, residing in San Juan County" as required by:
(i) P.L. 72-403, 47 Stat. 1418 (1933);
(ii) P.L. 90-306, 82 Stat. 121 (1968); and
(iii) this [chapter] part.
(3) The trust administrator, under direction of the board, may:
(a) contract with public and private entities; and
(b) unless prohibited by law or the requirements of this [chapter] part, acquire and hold monies and other property received in the administration of the trust fund.
(4) (a) Notwithstanding Subsection [63-88-101] 51-9-501(2), the trust administrator shall ensure that at least every six years the assessment includes:
(i) a survey as described in Subsection [63-88-101] 51-9-501(2)(a); or
(ii) public hearings as described in Subsection [63-88-101] 51-9-501(2)(b).
(b) Subsection (2)(a) does not prohibit the trust administrator from conducting a physical inventory as defined in Subsection [63-88-101] 51-9-501(2)(c) during the same year a survey or public hearing is required.
Section 638. Section 51-9-506, which is renumbered from Section 63-88-106 is renumbered and amended to read:
[63-88-106
]. 51-9-506. Expenditures from the trust fund.(1) (a) Under the direction of the board of trustees, the trust administrator may make expenditures to invest in business enterprises:
(i) as authorized and limited by this section; and
(ii) giving consideration to the advice of the Dineh Committee.
(b) When making expenditures to invest in a business enterprise the trust administrator:
(i) may expend trust monies only on a business enterprise located in San Juan County;
(ii) may expend trust fund monies only:
(A) to invest in a joint business enterprise; and
(B) when the other party's capital investment is larger than the trust fund's expenditure; and
(iii) may not continue to make expenditures to or in support of a business enterprise if the business enterprise fails to show a profit within three years.
(2) (a) Before making any expenditures to a business enterprise or service provider from the trust fund, the trust administrator shall:
(i) comply with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; and
(ii) review and approve the business enterprise's or service provider's entire budget.
(b) The trust administrator may require that a business enterprise or service provider modify its budget or meet other conditions precedent established by the trust administrator before the business enterprise or service provider may receive expenditures from the trust fund.
(3) The trust administrator shall make all expenditures from the trust fund that are not administrative expenditures by:
(a) preparing a written document that:
(i) defines specifically how the expenditure from the trust fund may be used;
(ii) establishes any conditions precedent to its use; and
(iii) requires the recipient of trust fund monies to provide the trust administrator with progress reports detailing how program funds have been expended; and
(b) obtaining the signature of the recipient on that document before releasing any monies from the trust fund.
(4) The trust administrator shall:
(a) make rules in accordance with Subsection (6) that:
(i) establish policies and criteria for expenditure of the trust fund monies that take into account the assessment analysis results; and
(ii) establish performance evaluation criteria with which to evaluate the success of expenditures from the trust fund after they are made;
(b) develop procedures, forms, and standards for persons seeking distribution of trust fund monies that implement the policies and criteria for expenditures established by rule;
(c) evaluate all requests for expenditures of trust fund monies against:
(i) the policies and criteria established by rule; and
(ii) the requestor's success in meeting performance evaluation criteria and goals in any prior receipt of trust fund monies;
(d) develop performance goals for each trust fund expenditure that implement the performance evaluation criteria established in rule; and
(e) monitor and evaluate each trust fund expenditure based upon the performance goals and performance evaluation criteria created under this Subsection (4).
(5) The trust administrator may expend trust monies for per diem and expenses incurred by the Dineh Committee in performance of their official duties.
(6) The trust administrator shall make a rule described in Subsection (4)(a):
(a) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) with the input and recommendation of the Dineh Committee; and
(c) with the approval of the board of trustees.
Section 639. Section 51-9-507, which is renumbered from Section 63-88-107 is renumbered and amended to read:
[63-88-107
]. 51-9-507. Utah Dineh Committee.(1) There is created the Dineh Committee.
(2) (a) The governor, with the consent of the Senate, shall appoint nine members to the committee.
(b) In making an appointment under Subsection (2)(a), the governor shall ensure that:
(i) each member of the committee is an individual:
(A) who is an enrolled member of the Navajo Nation; and
(B) whose name and tribal number are contained in the trust fund's population database; and
(ii) the committee includes:
(A) two registered members of the Aneth Chapter of the Navajo Nation who reside in San Juan County, Utah;
(B) one registered member of the Blue Mountain Dine' who resides in San Juan County, Utah;
(C) one registered member of the Mexican Water Chapter of the Navajo Nation who resides in San Juan County, Utah;
(D) one registered member of the Navajo Mountain Chapter of the Navajo Nation who resides in San Juan County, Utah;
(E) subject to Subsection (11), two members who reside in San Juan County, Utah:
(I) one of which shall be a registered member of the Oljato Chapter of the Navajo Nation; and
(II) one of which shall be a registered member of either the Oljato Chapter or the Dennehotso Chapter of the Navajo Nation;
(F) one registered member of the Red Mesa Chapter of the Navajo Nation who resides in San Juan County, Utah; and
(G) one registered member of the Teec Nos Pos Chapter of the Navajo Nation who resides in San Juan County, Utah.
(3) (a) (i) Each of the Utah Navajo Chapters, except the Aneth, Oljato, and Dennehotso chapters, shall submit to the governor the names of three nominees to the Dineh Committee chosen by the chapter.
(ii) The governor shall select one of the three persons submitted under Subsection (3)(a)(i) as that chapter's representative on the Dineh Committee.
(b) (i) The Blue Mountain Dine' shall submit to the governor the names of three nominees to the Dineh Committee.
(ii) The governor shall select one of the three persons submitted under Subsection (3)(b)(i) as the Blue Mountain Dine' representative on the Dineh Committee.
(c) (i) The Aneth Chapter shall submit to the governor the names of six nominees to the Dineh Committee chosen by the chapter.
(ii) The governor shall select two of the six persons submitted under Subsection (3)(c)(i) to be the Aneth Chapter's representatives on the Dineh Committee.
(d) (i) The Oljato Chapter shall submit to the governor the names of six nominees to the Dineh Committee chosen by the chapter.
(ii) One of the six names submitted under Subsection (3)(d)(i) may be a registered member of the Dennehotso Chapter.
(iii) The governor shall select two of the six persons submitted under Subsection (3)(d)(i) to be the representatives on the Dineh Committee of the Oljato and Dennehotso chapters.
(4) The governor may not appoint any person who is currently, or who, within the last 12 months, has been an officer, director, employee, or contractor of any business enterprise or service provider that solicits, accepts, or receives a benefit from an expenditure of:
(a) the Division of Indian Affairs; or
(b) the trust fund established in this [chapter] part.
(5) (a) Except as provided in Subsection (5)(b) and other than the amount authorized by this section for Dineh Committee member expenses, a person appointed to the Dineh Committee may not solicit, accept, or receive any benefit from an expenditure of:
(i) the Division of Indian Affairs;
(ii) the trust fund; or
(iii) the Division of Indian Affairs or trust fund as an officer, director, employee, or contractor of any business enterprise or service provider that solicits, accepts, or receives a benefit from the expenditure of:
(A) the Division of Indian Affairs; or
(B) the trust fund.
(b) A member of the Dineh Committee may receive a benefit from an expenditure of the trust fund if:
(i) when the benefit is discussed by the Dineh Committee:
(A) the member discloses that the member may receive the benefit;
(B) the member physically leaves the room in which the Dineh Committee is discussing the benefit; and
(C) the Dineh Committee approves the member receiving the benefit by a unanimous vote of members present at the meeting discussing the benefit;
(ii) a Utah Navajo Chapter requests that the benefit be received by the member;
(iii) the member is in compliance with the ethics and conflict of interest policy required under Subsection [63-88-105] 51-9-505(2)(d);
(iv) (A) the expenditure from the trust fund is made in accordance with this [chapter] part; and
(B) the benefit is no greater than the benefit available to members of the Navajo Nation whose name and tribal number are contained in the trust fund's population database; and
(v) the member is not receiving the benefit as an officer, director, employee, or contractor of any business enterprise or service provider.
(c) A business enterprise or service provider that has a member as an officer, director, employee, or contractor may not receive a benefit under Subsection (5)(b).
(6) (a) (i) Except as required by Subsection (6)(a)(ii), as terms of current committee members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(ii) Notwithstanding the requirements of Subsection (6)(a)(i), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of committee members are staggered so that approximately half of the committee is appointed every two years.
(b) Except as provided in Subsection (6)(c), committee members shall serve until their successors are appointed and qualified.
(c) (i) If a committee member is absent from three consecutive committee meetings, or if the committee member has violated the ethical or conflict of interest policies established by statute or by the committee:
(A) that member's appointment is terminated;
(B) the position is vacant; and
(C) the governor shall appoint a replacement.
(ii) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term according to the procedures of this section.
(7) (a) The committee shall select a chair and a vice chair from its membership each two years subsequent to the appointment of new members.
(b) Five members of the committee are a quorum for the transaction of business.
(c) The committee shall:
(i) comply with the procedures and requirements of Title 52, Chapter 4, Open and Public Meetings Act;
(ii) ensure that all of its meetings are held at or near:
(A) a chapter house or meeting hall of a Utah Navajo Chapter; or
(B) other places in Utah that the committee considers practical and appropriate; and
(iii) ensure that all of its meetings are public hearings at which any resident of San Juan County may appear and speak.
(8) (a) A member shall receive no compensation or benefits for the member's services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 from the trust fund.
(b) A member may decline to receive per diem and expenses for their service.
(9) The Office of Trust Administrator is staff to the committee.
(10) The committee shall advise the trust administrator about the expenditure of trust fund monies.
(11) If both members appointed under Subsection (2)(b)(ii)(E) are registered members of the Oljato Chapter, the two members shall attend Dennehotso Chapter meetings as practicable.
Section 640. Section 51-9-601, which is renumbered from Section 63-12-1 is renumbered and amended to read:
Part 6. Forest Reserve Fund
[63-12-1]. 51-9-601. Act of Congress accepted.
The state of Utah renews its acceptance of the apportionment of moneys received from forest reserves made by Act of Congress approved June 30, 1906 and all acts amendatory thereof and supplementary thereto, and renews its acceptance of said Act of Congress upon the terms and conditions set forth in said act; the said apportionment being for the benefit of the public schools and public roads of the counties wherein may be situated the respective forest reserves.
Section 641. Section 51-9-602, which is renumbered from Section 63-12-2 is renumbered and amended to read:
[63-12-2
]. 51-9-602. Special fund created.The moneys which shall come into the hands of the state treasurer from the United States pursuant to said act and all acts amendatory thereof and supplementary thereto shall constitute a fund to be known as the "County Road and School Fund from Forest Reserves."
Section 642. Section 51-9-603, which is renumbered from Section 63-12-4 is renumbered and amended to read:
[63-12-4
]. 51-9-603. Apportionment by the county legislative body.The county legislative body of each county participating therein shall immediately upon receipt of the apportionment proceed to apportion the same in the manner following, to wit: One-half to the several school districts of the county, according to the number of school children residing in each of said districts over six and under eighteen years of age, and one-half for the improvement of the public roads in said county.
Section 643. Section 52-4-203 is amended to read:
52-4-203
. Minutes of open meetings -- Public records -- Recording of meetings.(1) Except as provided under Subsection (8), written minutes and a recording shall be kept of all open meetings.
(2) Written minutes of an open meeting shall include:
(a) the date, time, and place of the meeting;
(b) the names of members present and absent;
(c) the substance of all matters proposed, discussed, or decided by the public body which may include a summary of comments made by members of the public body;
(d) a record, by individual member, of each vote taken by the public body;
(e) the name of each person who is not a member of the public body, and upon recognition by the presiding member of the public body, provided testimony or comments to the public body;
(f) the substance, in brief, of the testimony or comments provided by the public under Subsection (2)(e); and
(g) any other information that any member requests be entered in the minutes or recording.
(3) A recording of an open meeting shall:
(a) be a complete and unedited record of all open portions of the meeting from the commencement of the meeting through adjournment of the meeting; and
(b) be properly labeled or identified with the date, time, and place of the meeting.
(4) (a) The minutes and recordings of an open meeting are public records and shall be available within a reasonable time after the meeting.
(b) An open meeting record kept only by a recording must be converted to written minutes within a reasonable time upon request.
(5) All or any part of an open meeting may be independently recorded by any person in attendance if the recording does not interfere with the conduct of the meeting.
(6) Minutes or recordings of an open meeting that are required to be retained permanently shall be maintained in or converted to a format that meets long-term records storage requirements.
(7) Written minutes and recordings of open meetings are public records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, but written minutes shall be the official record of action taken at the meeting.
(8) Either written minutes or a recording shall be kept of:
(a) an open meeting that is a site visit or a traveling tour, if no vote or action is taken by the public body; and
(b) an open meeting of a local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, or special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, if the district's annual budgeted expenditures for all funds, excluding capital expenditures and debt service, are $50,000 or less.
Section 644. Section 52-4-206 is amended to read:
52-4-206
. Record of closed meetings.(1) Except as provided under Subsection (6), if a public body closes a meeting under Subsection 52-4-205(1), the public body:
(a) shall make a recording of the closed portion of the meeting; and
(b) may keep detailed written minutes that disclose the content of the closed portion of the meeting.
(2) A recording of a closed meeting shall be complete and unedited from the commencement of the closed meeting through adjournment of the closed meeting.
(3) The recording and any minutes of a closed meeting shall include:
(a) the date, time, and place of the meeting;
(b) the names of members present and absent; and
(c) the names of all others present except where the disclosure would infringe on the confidentiality necessary to fulfill the original purpose of closing the meeting.
(4) Minutes or recordings of a closed meeting that are required to be retained permanently shall be maintained in or converted to a format that meets long-term records storage requirements.
(5) Both a recording and written minutes of closed meetings are protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, except that the records may be disclosed under a court order only as provided under Section 52-4-304.
(6) If a public body closes a meeting exclusively for the purposes described under Subsection 52-4-205(1)(a) or Subsection 52-4-205(1)(f):
(a) the person presiding shall sign a sworn statement affirming that the sole purpose for closing the meeting was to discuss the purposes described under Subsection 52-4-205(1)(a) or Subsection 52-4-205(1)(f); and
(b) the provisions of Subsection (1) of this section do not apply.
Section 645. Section 52-4-304 is amended to read:
52-4-304
. Action challenging closed meeting.(1) Notwithstanding the procedure established under Subsection [63-2-202] 63G-2-202(7), in any action brought under the authority of this chapter to challenge the legality of a closed meeting held by a public body, the court shall:
(a) review the recording or written minutes of the closed meeting in camera; and
(b) decide the legality of the closed meeting.
(2) (a) If the judge determines that the public body did not violate Section 52-4-204, 52-4-205, or 52-4-206 regarding closed meetings, the judge shall dismiss the case without disclosing or revealing any information from the recording or minutes of the closed meeting.
(b) If the judge determines that the public body violated Section 52-4-204, 52-4-205, or 52-4-206 regarding closed meetings, the judge shall publicly disclose or reveal from the recording or minutes of the closed meeting all information about the portion of the meeting that was illegally closed.
Section 646. Section 52-6-101 is enacted to read:
CHAPTER 6. REIMBURSEMENT OF LEGAL FEES AND
COSTS TO OFFICERS AND EMPLOYEES ACT
Part 1. General Provisions
52-6-101. Title.
This chapter is known as the "Reimbursement of Legal Fees and Costs to Officers and Employees Act."
Section 647. Section 52-6-102, which is renumbered from Section 63-30a-1 is renumbered and amended to read:
[63-30a-1
]. 52-6-102. Definitions.As used in this act:
(1) "Officer or employee" means any individual who at the time of an event giving rise to a claim under this act is or was elected or appointed to or employed by a public entity, whether or not compensated, but does not include an independent contractor.
(2) "Public entity" means the state or any political subdivision of it or any office, department, division, board, agency, commission, council, authority, institution, hospital, school, college, university, or other instrumentality of the state or any such political subdivision.
Section 648. Section 52-6-201, which is renumbered from Section 63-30a-2 is renumbered and amended to read:
Part 2. Attorneys' Fees and Court Costs
[63-30a-2]. 52-6-201. Indictment or information against officer or employee -- Reimbursement of attorneys' fees and court costs incurred in defense.
(1) If a state grand jury indicts, or if an information is filed against, an officer or employee, in connection with or arising out of any act or omission of that officer or employee during the performance of his duties, within the scope of his employment, or under color of his authority, and that indictment or information is quashed or dismissed or results in a judgment of acquittal, unless the indictment or information is quashed or dismissed upon application or motion of the prosecuting attorney, that officer or employee shall be entitled to recover reasonable attorneys' fees and court costs necessarily incurred in the defense of that indictment or information from the public entity, unless the officer or employee is found guilty of substantially the same misconduct that formed the basis for the indictment or information.
(2) If the officer or employee is acquitted of some of the charges or counts, or portions of the indictment or information are quashed or dismissed, that officer or employee shall be entitled to recover from the public entity reasonable attorneys' fees and court costs necessarily incurred in the defense of those charges, counts, or portions of the indictment or information that were quashed, dismissed, or resulted in a judgment of acquittal, unless the misconduct covered by those charges, counts, or portions of the indictment or information that were quashed, dismissed, or resulted in a judgment of acquittal is substantially the same misconduct that formed the basis for charges, counts, or portions of the indictment or information of which the officer or employee was found guilty.
(3) An officer or employee who recovers under this section shall also be entitled to recover reasonable attorneys' fees and costs necessarily incurred by the officer or employee in recovering the attorneys' fees and costs allowed under this section, including attorneys' fees and costs incurred on appeal.
(4) Notwithstanding any other provision of this section, an officer or employee may not recover for the costs incurred in defense of any charge, count, or portion of the indictment or information that is quashed or dismissed upon application or motion of the prosecuting attorney.
Section 649. Section 52-6-202, which is renumbered from Section 63-30a-3 is renumbered and amended to read:
[63-30a-3
]. 52-6-202. Payment of reimbursement of attorneys' fees and court costs.(1) A request for reimbursement of attorneys' fees and court costs shall be filed in the manner provided in Sections [63-30d-902] 63G-7-902 and [63-30d-903] 63G-7-903.
(2) (a) Any reimbursement of attorneys' fees and court costs filed on behalf of an officer or employee of the state shall be paid from funds appropriated to the department or division that employed the officer or employee at the time of the act or omission that gave rise to the indictment or information.
(b) If those funds are unavailable, the reimbursement shall be paid from the General Fund upon approval by the Board of Examiners and legislative appropriation.
Section 650. Section 52-7-101 is enacted to read:
CHAPTER 7. PUBLIC OFFICERS' ATTORNEYS' FEES ACT
Part 1. General Provisions
52-7-101. Title.
This chapter is known as the "Public Officers' Attorneys' Fees Act."
Section 651. Section 52-7-102, which is renumbered from Section 63-30c-1 is renumbered and amended to read:
[63-30c-1
]. 52-7-102. "Public officer" defined.As used in this chapter:
"Public officer" means a member of the Utah State Senate, a member of the Utah State House of Representatives, the governor, lieutenant governor, state auditor, state treasurer, attorney general, or any justice or judge of a court of record.
Section 652. Section 52-7-201, which is renumbered from Section 63-30c-2 is renumbered and amended to read:
Part 2. Claims for Attorneys' Fees
[63-30c-2]. 52-7-201. Reimbursement of attorneys' fees and court costs in Article V lawsuits.
If any public officer is named as a defendant in a civil suit that alleges a violation of Article V of the Utah Constitution, and that lawsuit is dismissed or results in a judgment in favor of the defendant, the public officer may, by complying with the requirements and procedures of this chapter, submit a claim to the state for reimbursement of his reasonable attorneys' fees and court costs necessarily incurred in the defense of that civil suit.
Section 653. Section 52-7-202, which is renumbered from Section 63-30c-3 is renumbered and amended to read:
[63-30c-3
]. 52-7-202. Procedure for submitting claim -- Representation of certain public officers by named counsel -- Certain claims barred.(1) From and after July 1, 1987, within 30 days after he is served with a copy of the complaint, a public officer named as a defendant in a civil suit that alleges a violation of Article V of the Utah Constitution shall provide the Legislative Management Committee and the legislative general counsel with the following information:
(a) a brief summary of the claims against him;
(b) the name of the attorney or law firm that will represent him;
(c) the estimated hourly fee that the attorney or law firm will charge for representing the public officer; and
(d) an estimate of the hours that the attorney projects are necessary to resolve the lawsuit.
(2) (a) Unless prohibited by the rules governing the conduct of attorneys adopted by the Utah Supreme Court under the authority of Article VIII, Sec. 4 of the Utah Constitution, the Office of the Attorney General, the Office of Legislative Research and General Counsel, or the general counsel for the judicial branch shall represent a public officer named as a defendant in a civil suit that alleges a violation of Article V of the Utah Constitution if the Utah Constitution, statutes, or rules require that such representation be provided.
(b) If a public officer is represented by the Office of the Attorney General, the Office of Legislative Research and General Counsel, or the general counsel of the judicial branch under Subsection (2)(a), the public officer may not present a claim for attorneys' fees or court costs under this chapter.
Section 654. Section 52-7-203, which is renumbered from Section 63-30c-4 is renumbered and amended to read:
[63-30c-4
]. 52-7-203. No review by Board of Examiners.The Board of Examiners may not review any claims submitted under the authority of this chapter.
Section 655. Section 52-7-204, which is renumbered from Section 63-30c-5 is renumbered and amended to read:
[63-30c-5
]. 52-7-204. Claim and bill given to legislative fiscal analyst and Office of Legislative Research and General Counsel -- Independent review available -- Private sources of funds to be considered -- Power of Legislature to adjust or refuse claim.(1) A public officer who meets the requirements of this chapter shall submit his claim for payment of attorneys' fees and court costs, and a copy of the bills that the public officer received from the attorney who represented him, to both the Office of the Legislative Fiscal Analyst and the Office of Legislative Research and General Counsel.
(2) Upon receipt of a claim from the public officer, the legislative fiscal analyst or the legislative general counsel may, at the direction of the Legislative Management Committee, submit the claim for attorneys' fees to an independent entity to review the attorneys' fees and to recommend an appropriate fee.
(3) In considering whether or not to pay the claim, the Legislature may consider whether or not there are other sources, including private sources, to pay the claim.
(4) The Legislature may pay the claim in full, adjust the claim, or refuse to pay the claim.
Section 656. Section 52-7-301, which is renumbered from Section 63-30c-6 is renumbered and amended to read:
Part 3. Application
[63-30c-6]. 52-7-301. Retrospective application of chapter.
This chapter applies to any claim arising prior to the effective date of this chapter if that claim is filed with the Legislature within two years after the lawsuit was filed.
Section 657. Section 52-8-101, which is renumbered from Section 63-93-101 is renumbered and amended to read:
CHAPTER 8. REPORTS AND NOTICES
Part 1. General Provisions
[63-93-101]. 52-8-101. Title.
This chapter [shall be] is known as "Reports and Notices."
Section 658. Section 52-8-102, which is renumbered from Section 63-93-102 is renumbered and amended to read:
[63-93-102
]. 52-8-102. Definitions.As used in this chapter:
(1) "Attribution" means to be responsible for the truth, correctness, and accuracy of a report.
(2) "Chief executive officer" means:
(a) the governor, for the state;
(b) the chair of the county commission or the county executive, for a county; and
(c) the mayor, for a municipality, or if governed under a council-manager form of government, the chair of the council.
(3) "Government entity" includes the state, its agencies and institutions, each county, municipality, school district, local district, and special service district in Utah.
(4) "Promotional literature" means reports whose primary or secondary purpose is to provide nonresidents with information about the government entity that produced the report.
(5) (a) "Report" means each account, statement, record of proceedings, summary of activities, and other written or printed document required by statute that is prepared or produced by a government entity that is distributed to the public.
(b) "Report" does not mean written or printed documents whose primary purpose is to provide biographical information about government officials.
Section 659. Section 52-8-201, which is renumbered from Section 63-93-201 is renumbered and amended to read:
Part 2. Penalties
[63-93-201]. 52-8-201. Prohibition.
(1) Except as provided in Subsection (2), a government entity may not include, as part of any report, the photograph or likeness of any elected official.
(2) A report may contain the photograph or likeness of the chief executive officer of a government entity if the report is promotional literature.
Section 660. Section 52-8-202, which is renumbered from Section 63-93-202 is renumbered and amended to read:
[63-93-202
]. 52-8-202. Penalties.If an elected official's photograph or likeness appears on any report in violation of this section that was prepared under the authority or at the direction of the elected official, that elected official is personally liable for the cost of preparing and distributing the report.
Section 661. Section 52-9-101, which is renumbered from Section 63-96-101 is renumbered and amended to read:
CHAPTER 9. ELECTED OFFICIALS' FUNDS
Part 1. General Provisions
[63-96-101]. 52-9-101. Title.
This chapter [shall be] is known as "Elected Officials' Funds."
Section 662. Section 52-9-102, which is renumbered from Section 63-96-102 is renumbered and amended to read:
[63-96-102
]. 52-9-102. Definitions.As used in this chapter:
(1) (a) "Contribution" means any of the following:
(i) a gift, subscription, donation, loan, advance, or deposit of money or anything of value to a fund;
(ii) an express, legally enforceable contract, promise, or agreement to make a gift, subscription, donation, unpaid or partially unpaid loan, advance, or deposit of money or anything of value to a fund; or
(iii) any transfer of funds from another elected official or surrogate to the filing elected official's or surrogate's fund.
(b) "Contribution" does not include money lent to the elected official or surrogate by a financial institution in the ordinary course of business.
(2) "Disbursement" means monies, transfers, or other withdrawals from a fund for any purpose.
(3) "Elected official" means each person elected to a state office, county office, municipal office, school board or school district office, local district office, or special service district office, but does not include judges standing for retention election.
(4) (a) "Fund" means any sum of money or other resources, however titled or described, that is segregated, designated, or set aside for the use or benefit of an elected official.
(b) "Fund" does not mean:
(i) an elected official's or surrogate's private money or public money; or
(ii) campaign funds or accounts established by candidates under the authority of Title 20A, Chapter 11, Part 2, State Office Candidates - Campaign Organization and Financial Reporting Requirements, Title 20A, Chapter 11, Part 3, Candidates for Legislative Office - Campaign Organization and Financial Reporting Requirements, and Title 20A, Chapter 11, Part 4, Officeholder Financial Reporting Requirement.
(5) "Private money" means personal monies used to pay normal expenses for which an elected official or surrogate is personally liable for state and federal taxes.
(6) "Public money" means monies controlled by an elected official or surrogate in their public capacity that are accounted for by a governmental entity.
(7) "Surrogate" means any committee, party, organization, or other person or group who holds or maintains a fund for the benefit of an elected official.
Section 663. Section 52-9-201, which is renumbered from Section 63-96-103 is renumbered and amended to read:
Part 2. Reporting Requirements
[63-96-103]. 52-9-201. Reporting of funds -- Reports are public records.
(1) (a) By January 5 of each year, each state elected official who has a fund, each multicounty elected official who has a fund, each surrogate for a state elected official who has a fund for a state elected official, and each surrogate for a multicounty elected official who has a fund for a multicounty elected official shall file a funds report containing the information required by this section with the lieutenant governor.
(b) By January 5 of each year, each local elected official who has a fund and each surrogate for a local elected official who has a fund for a local elected official shall file a funds report containing the information required by this section with the county clerk of the county in which the local elected official exercises his official duties.
(2) Each report shall contain:
(a) the dollar value of the fund as of December 31 of the previous year;
(b) an itemized list of disbursements from the fund during the previous calendar year identifying:
(i) the date of each disbursement;
(ii) the name and address of each person or entity to whom a disbursement was made; and
(iii) the purpose of each disbursement; and
(c) an itemized list of contributions to the fund during the previous calendar year, identifying:
(i) the date of each contribution; and
(ii) the name and address of each person or entity from whom a contribution was received.
(3) Reports filed under this section are classified as public records for purposes of disclosure under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 664. Section 53-1-105 is amended to read:
53-1-105
. Rulemaking -- Adjudicative proceedings -- Meetings.The commissioner and the department and its boards, councils, divisions, and offices shall comply with the procedures and requirements of:
(1) [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, in their rulemaking;
(2) [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings; and
(3) Title 52, Chapter 4, Open and Public Meetings Act, in their meetings.
Section 665. Section 53-1-106 is amended to read:
53-1-106
. Department duties -- Powers.(1) In addition to the responsibilities contained in this title, the department shall:
(a) make rules and perform the functions specified in Title 41, Chapter 6a, Traffic Code, including:
(i) setting performance standards for towing companies to be used by the department, as required by Section 41-6a-1406; and
(ii) advising the Department of Transportation regarding the safe design and operation of school buses, as required by Section 41-6a-1304;
(b) make rules to establish and clarify standards pertaining to the curriculum and teaching methods of a motor vehicle accident prevention course under Section 31A-19a-211;
(c) aid in enforcement efforts to combat drug trafficking;
(d) meet with the Department of Technology Services to formulate contracts, establish priorities, and develop funding mechanisms for dispatch and telecommunications operations;
(e) provide assistance to the Crime Victims' Reparations Board and Reparations Office in conducting research or monitoring victims' programs, as required by Section [63-25a-405] 63M-7-505;
(f) develop sexual assault exam protocol standards in conjunction with the Utah Hospital Association;
(g) engage in emergency planning activities, including preparation of policy and procedure and rulemaking necessary for implementation of the federal Emergency Planning and Community Right to Know Act of 1986, as required by Section [63-5-5] 63K-3-301;
(h) implement the provisions of Section 53-2-202, the Emergency Management Assistance Compact; and
(i) (i) maintain a database of the information listed below regarding each driver license or state identification card status check made by a law enforcement officer:
(A) the agency employing the law enforcement officer;
(B) the name of the law enforcement officer or the identifying number the agency has assigned to the law enforcement officer;
(C) the race and gender of the law enforcement officer;
(D) the purpose of the law enforcement officer's status check, including but not limited to a traffic stop or a pedestrian stop; and
(E) the race of the individual regarding whom the status check is made, based on the information provided through the application process under Section 53-3-205 or 53-3-804;
(ii) provide access to the database created in Subsection (1)(i)(i) to the Commission on Criminal and Juvenile Justice for the purpose of:
(A) evaluating the data;
(B) evaluating the effectiveness of the data collection process; and
(C) reporting and making recommendations to the Legislature; and
(iii) classify any personal identifying information of any individual, including law enforcement officers, in the database as protected records under Subsection [63-2-304] 63G-2-305(9).
(2) (a) The department may establish a schedule of fees as required or allowed in this title for services provided by the department.
(b) The fees shall be established in accordance with Section [63-38-3.2] 63J-1-303.
(3) The department may establish or contract for the establishment of an Organ Procurement Donor Registry in accordance with Section 26-28-120.
Section 666. Section 53-1-108 is amended to read:
53-1-108
. Commissioner's powers and duties.(1) In addition to the responsibilities contained in this title, the commissioner shall:
(a) administer and enforce this title and Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle Owners and Operators Act;
(b) appoint deputies, inspectors, examiners, clerical workers, and other employees as required to properly discharge the duties of the department;
(c) make rules:
(i) governing emergency use of signal lights on private vehicles; and
(ii) allowing privately owned vehicles to be designated for part-time emergency use, as provided in Section 41-6a-310;
(d) set standards for safety belt systems, as required by Section 41-6a-1803;
(e) serve as the chairman of the Disaster Emergency Advisory Council, as required by Section [63-5-4] 63K-3-201;
(f) designate vehicles as "authorized emergency vehicles," as required by Section 41-6a-102; and
(g) on or before January 1, 2003, adopt a written policy that prohibits the stopping, detention, or search of any person when the action is solely motivated by considerations of race, color, ethnicity, age, or gender.
(2) The commissioner may:
(a) subject to the approval of the governor, establish division headquarters at various places in the state;
(b) issue to a special agent a certificate of authority to act as a peace officer and revoke that authority for cause, as authorized in Section 56-1-21.5;
(c) create specialized units within the commissioner's office for conducting internal affairs and aircraft operations as necessary to protect the public safety;
(d) cooperate with any recognized agency in the education of the public in safety and crime prevention and participate in public or private partnerships, subject to Subsection (3);
(e) cooperate in applying for and distributing highway safety program funds; and
(f) receive and distribute federal funding to further the objectives of highway safety in compliance with the Federal Assistance Management Program Act.
(3) (a) Money may not be expended under Subsection (2)(d) for public safety education unless it is specifically appropriated by the Legislature for that purpose.
(b) Any recognized agency receiving state money for public safety shall file with the auditor of the state an itemized statement of all its receipts and expenditures.
Section 667. Section 53-1-110 is amended to read:
53-1-110
. Compilation of highway, traffic, and driver licensing laws -- Printing and distribution -- Fees.(1) (a) The commissioner shall compile an edition of the general highway, traffic, and driver licensing laws of the state as soon as practicable after each regular session of the Legislature.
(b) The edition shall include laws enacted or amended by the most recent session of the Legislature.
(2) (a) The Division of Finance shall print a sufficient quantity of the compiled highway, traffic, and driver licensing laws to distribute copies to all state, county, and local enforcement agencies, courts, legislators, and other agencies as necessary.
(b) A fee may be assessed for each copy of the compilation issued by the Division of Finance. The fee shall be established by the Division of Finance in accordance with Section [63-38-3.2] 63J-1-303.
Section 668. Section 53-1-117 is amended to read:
53-1-117
. Alcohol or drug enforcement funding -- Rulemaking -- Legislative findings.(1) From monies appropriated by the Legislature and any other funds made available for the purposes described under this section, the department shall assist the law enforcement agencies of the state and its political subdivisions in the enforcement of alcohol or drug-related offenses.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall make rules establishing criteria and procedures for granting monies under this section to law enforcement agencies for:
(a) providing equipment, including drug and alcohol testing equipment;
(b) funding the training and overtime of peace officers; and
(c) managing driving under the influence related abandoned vehicles.
(3) The Legislature finds that these monies are for a general and statewide public purpose.
Section 669. Section 53-2-102 is amended to read:
53-2-102
. Definitions.As used in this part:
(1) "Attack" means a nuclear, conventional, biological, or chemical warfare action against the United States of America or this state.
(2) "Director" means the division director appointed under Section 53-2-103.
(3) "Disaster" means a situation causing, or threatening to cause, widespread damage, social disruption, or injury or loss of life or property resulting from attack, internal disturbance, natural phenomena, or technological hazard.
(4) "Division" means the Division of Homeland Security created in Section 53-2-103.
(5) "Energy" includes the energy resources defined in Section [63-53a-1] 63K-2-103.
(6) "Expenses" means actual labor costs of government and volunteer personnel, including workers compensation benefits, fringe benefits, administrative overhead, cost of equipment, cost of equipment operation, cost of materials, and the cost of any contract labor and materials.
(7) "Hazardous materials emergency" means a sudden and unexpected release of any substance that because of its quantity, concentration, or physical, chemical, or infectious characteristics presents a direct and immediate threat to public safety or the environment and requires immediate action to mitigate the threat.
(8) "Internal disturbance" means a riot, prison break, disruptive terrorism, or strike.
(9) "Natural phenomena" means any earthquake, tornado, storm, flood, landslide, avalanche, forest or range fire, drought, or epidemic.
(10) "State of emergency" means a condition in any part of this state that requires state government emergency assistance to supplement the local efforts of the affected political subdivision to save lives and to protect property, public health, welfare, or safety in the event of a disaster, or to avoid or reduce the threat of a disaster.
(11) "Technological hazard" means any hazardous materials accident, mine accident, train derailment, air crash, radiation incident, pollution, structural fire, or explosion.
Section 670. Section 53-2-102.5 is amended to read:
53-2-102.5
. Loan program for disasters prior to Disaster Recovery Funding Act.(1) (a) For each promissory note issued under this section that is unpaid on May 1, 2006, the director shall issue a new promissory note to replace the existing promissory note:
(i) for the principal amount of the unpaid promissory note without accrued interest, if any;
(ii) due on or before June 30, 2007; and
(iii) with no interest rate.
(b) For a promissory note issued under this section that is unpaid as of April 30, 2007, the division shall ensure that when the principal on the promissory note is repaid, the repayment is made to the State Disaster Recovery Restricted Account created in Section 53-2-403.
(2) The director shall ensure that each promissory note issued under this section that is funded by monies appropriated and available for disaster loans as of January 1, 2006, are due on or before June 30, 2007.
(3) The Division of Finance shall transfer by no later than June 30, 2007, any monies repaid under this section to the General Fund Budget Reserve Account established in Section [63-38-2.5] 63J-1-202 to the State Disaster Recovery Restricted Account created in Section 53-2-403.
(4) Any amount on a promissory note issued under this section before April 30, 2007 that is unpaid as of June 30, 2007 is forgiven and need not be repaid.
Section 671. Section 53-2-104 is amended to read:
53-2-104
. Division duties -- Powers.(1) The division shall:
(a) respond to the policies of the governor and the Legislature;
(b) perform functions relating to emergency services and homeland security matters as directed by the commissioner;
(c) prepare, implement, and maintain programs and plans to provide for:
(i) prevention and minimization of injury and damage caused by disasters;
(ii) prompt and effective response to and recovery from disasters;
(iii) identification of areas particularly vulnerable to disasters;
(iv) coordination of hazard mitigation and other preventive and preparedness measures designed to eliminate or reduce disasters;
(v) assistance to local officials, state agencies, and the business and public sectors, in developing emergency action plans;
(vi) coordination of federal, state, and local emergency activities;
(vii) coordination of emergency operations plans with emergency plans of the federal government;
(viii) coordination of search and rescue activities;
(ix) coordination of rapid and efficient communications in times of emergency; and
(x) other measures necessary, incidental, or appropriate to this part;
(d) coordinate with local officials, state agencies, and the business and public sectors in developing, implementing, and maintaining a state energy emergency plan in accordance with Section 53-2-110; and
(e) administer Part 4, Disaster Recovery Funding Act, in accordance with that part.
(2) The division may consult with the Legislative Management Committee, the Judicial Council, and legislative and judicial staff offices to assist them in preparing emergency succession plans and procedures under [Title 63, Chapter 5b] Title 63K, Chapter 1, Emergency Interim Succession Act.
Section 672. Section 53-2-105 is amended to read:
53-2-105
. Hazardous materials emergency -- Recovery of expenses.(1) (a) The director may recover from those persons whose negligent actions caused the hazardous materials emergency, expenses incurred by state agencies directly associated with a response to a hazardous materials emergency taken under authority of this part, [Title 63, Chapter 5] Title 63K, Chapter 3, Emergency Management Act, or [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery.
(b) The payment of expenses under this subsection does not constitute an admission of liability or negligence in any legal action for damages.
(c) The director may obtain assistance from the attorney general or a county attorney of the affected jurisdiction to assist the director in recovering expenses and legal fees.
(d) Any recovered costs shall be deposited in the General Fund as dedicated credits to be used by the division to reimburse state and local government agencies for the costs they have incurred.
(2) (a) If the cost directly associated with emergency response exceeds all available funds of the division within a given fiscal year, the division, with approval from the governor, may incur a deficit in its line item budget.
(b) The Legislature shall provide a supplemental appropriation in the following year to cover the deficit.
(c) The division shall deposit all costs associated with any emergency response that are collected in subsequent fiscal years into the General Fund.
(3) Any political subdivision may enact local ordinances pursuant to existing statutory or constitutional authority to provide for the recovery of expenses incurred by the political subdivision.
Section 673. Section 53-2-106 is amended to read:
53-2-106
. Expenditures authorized by "state of emergency" declaration.(1) (a) The director may use funds authorized under [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery, to provide:
(i) transportation to and from the disaster scene;
(ii) accommodations at the disaster scene for prolonged incidents; and
(iii) emergency purchase of response equipment and supplies in direct support of a disaster.
(b) The commissioner may authorize the use of funds accrued under [Title 63, Chapter 5a] Title 63K, Chapter 2, only if the governor declares a state of emergency as provided in [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery.
(2) These funds may not be allocated to a political subdivision unless the political subdivision has demonstrated that it is beyond its capability to respond to the disaster and that no other resources are available in sufficient amount to meet the disaster.
Section 674. Section 53-2-107 is amended to read:
53-2-107
. Search and Rescue Financial Assistance Program -- Uses -- Rulemaking -- Distribution.(1) "Reimbursable expenses," as used in this section, means those reasonable costs incidental to search and rescue activities, not including any salary or overtime paid to any person on a regular or permanent payroll, including permanent part-time employees, of any agency or political subdivision of the state, including:
(a) rental for fixed wing aircraft, helicopters, snowmobiles, boats, and generators;
(b) replacement and upgrade of search and rescue equipment;
(c) training of search and rescue volunteers; and
(d) any other equipment or expenses necessary or appropriate for conducting search and rescue activities.
(2) There is created the Search and Rescue Financial Assistance Program within the division.
(3) (a) The program shall be funded from the following revenue sources:
(i) any voluntary contributions to the state received for search and rescue operations;
(ii) monies received by the state under Section 23-19-42 and Section 41-22-34; and
(iii) appropriations made to the program by the Legislature.
(b) All funding for the program shall be nonlapsing.
(4) The director shall use the monies to reimburse counties for all or a portion of each county’s reimbursable expenses for search and rescue operations subject to:
(a) the approval of the Search and Rescue Advisory Board as provided in Section 53-2-109;
(b) monies available in the program; and
(c) rules made under Subsection (7).
(5) Program monies may not be used to reimburse for any paid personnel costs or paid man hours spent in emergency response and search and rescue related activities.
(6) The Legislature finds that these funds are for a general and statewide public purpose.
(7) The division, with the approval of the Search and Rescue Advisory Board, shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with this act, establishing:
(a) the costs that qualify as reimbursable expenses;
(b) the procedures of agencies to submit expenses and be reimbursed; and
(c) a formula to govern the distribution of available monies between counties based on:
(i) the total qualifying expenses submitted;
(ii) the number of search and rescue incidents per county population;
(iii) the number of victims that reside outside the county; and
(iv) the number of volunteer hours spent in each county in emergency response and search and rescue related activities per county population.
Section 675. Section 53-2-110 is amended to read:
53-2-110
. Energy emergency plan.(1) The division shall develop an energy emergency plan consistent with [Title 63, Chapter 53a] Title 63K, Chapter 2, Energy Emergency Powers of Governor.
(2) In developing the energy emergency plan, the division shall coordinate with:
(a) the Division of Public Utilities;
(b) the Division of Oil, Gas, and Mining;
(c) the Division of Air Quality; and
(d) the Department of Agriculture and Food with regard to weights and measures.
(3) The energy emergency plan shall:
(a) designate the division as the entity that will coordinate the implementation of the energy emergency plan;
(b) provide for annual review of the energy emergency plan;
(c) provide for cooperation with public utilities and other relevant private sector persons;
(d) provide a procedure for maintaining a current list of contact persons required under the energy emergency plan; and
(e) provide that the energy emergency plan may only be implemented if the governor declares:
(i) a state of emergency as provided in [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery; or
(ii) a state of emergency related to energy as provided in [Title 63, Chapter 53a] Title 63K, Chapter 2, Energy Emergency Powers of Governor.
(4) If an event requires the implementation of the energy emergency plan, the division shall report on that event and the implementation of the energy emergency plan to:
(a) the governor; and
(b) the Public Utilities and Technology Interim Committee.
(5) If the energy emergency plan includes a procedure for obtaining information, the energy emergency plan shall incorporate reporting procedures that conform to existing requirements of federal, state, and local regulatory authorities wherever possible.
Section 676. Section 53-2-402 is amended to read:
53-2-402
. Definitions.(1) Unless otherwise defined in this section, the terms defined in Part 1, Homeland Security Act, shall have the same meaning for this part.
(2) As used in this part:
(a) "Declared disaster" means one or more events:
(i) within the state;
(ii) that occur within a limited period of time;
(iii) that involve:
(A) a significant number of persons being at risk of bodily harm, sickness, or death; or
(B) a significant portion of real property at risk of loss;
(iv) that are sudden in nature and generally occur less frequently than every three years; and
(v) that results in:
(A) the president of the United States declaring an emergency or major disaster in the state;
(B) the governor declaring a state of emergency under [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery; or
(C) the chief executive officer of a local government declaring a local emergency under [Title 63, Chapter 5a] Title 63K, Chapter 2, Disaster Response and Recovery.
(b) "Disaster recovery fund" means the State Disaster Recovery Restricted Account created in Section 53-2-403.
(c) "Emergency preparedness" means the following done for the purpose of being prepared for an emergency as defined by the division by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(i) the purchase of equipment;
(ii) the training of personnel; or
(iii) the obtaining of a certification.
(d) (i) "Emergency disaster services" means the following that are of a temporary basis:
(A) evacuation;
(B) shelter;
(C) medical triage;
(D) emergency transportation;
(E) repair of infrastructure;
(F) safety services, including fencing or roadblocks;
(G) sandbagging;
(H) emergency debris removal;
(I) temporary bridges;
(J) procurement and distribution of food, water, or ice;
(K) procurement and deployment of generators;
(L) rescue or recovery; or
(M) services similar to those described in Subsections (2)(d)(i)(A) through (L), as defined by the division by rule, that are generally required within the first 96 hours of a declared disaster.
(ii) "Emergency disaster services" does not include:
(A) emergency preparedness; or
(B) notwithstanding whether or not a county participates in the Wildland Fire Suppression Fund created in Section 65A-8-6.1, any fire suppression or presuppression costs that may be paid for from the Wildland Fire Suppression Fund if the county participates in the Wildland Fire Suppression Fund.
(e) "Local fund" means a local government disaster fund created in accordance with Section 53-2-405.
(f) "Local government" means a county, city, or town.
(g) "Special fund" means a fund other than a general fund of a local government that is created for a special purpose established under the uniform system of budgeting, accounting, and reporting.
Section 677. Section 53-2-403 is amended to read:
53-2-403
. State Disaster Recovery Restricted Account.(1) (a) There is created a restricted account in the General Fund known as the "State Disaster Recovery Restricted Account."
(b) The disaster recovery fund shall consist of:
(i) monies deposited into the disaster recovery fund in accordance with Section 53-2-102.5;
(ii) monies deposited into the disaster recovery fund in accordance with Section [63-38-2.7] 63J-1-204;
(iii) monies appropriated to the disaster recovery fund by the Legislature;
(iv) any other public or private monies received by the division that are:
(A) given to the division for purposes consistent with this section; and
(B) deposited into the disaster recovery fund at the request of:
(I) the division; or
(II) the person giving the monies; and
(v) interest or other earnings derived from the disaster recovery fund.
(c) Monies in the disaster recovery fund may only be used as follows:
(i) without the monies being appropriated by the Legislature, in any fiscal year the division may use $100,000 to fund, in accordance with Section 53-2-404, costs to the state of emergency disaster services in response to a declared disaster; and
(ii) subject to being appropriated by the Legislature, monies not described in Subsection (1)(c)(i) may be used to fund costs to the state directly related to a declared disaster that are not costs related to:
(A) emergency disaster services;
(B) emergency preparedness; or
(C) notwithstanding whether or not a county participates in the Wildland Fire Suppression Fund created in Section 65A-8-6.1, any fire suppression or presuppression costs that may be paid for from the Wildland Fire Suppression Fund if the county participates in the Wildland Fire Suppression Fund.
(2) The state treasurer shall invest monies in the disaster recovery fund according to Title 51, Chapter 7, State Money Management Act, except that the state treasurer shall deposit all interest or other earnings derived from the disaster recovery fund into the disaster recovery fund.
(3) (a) Except as provided in Subsection (1), the monies in the disaster recovery fund may not be diverted, appropriated, or used for a purpose that is not listed in this section.
(b) Notwithstanding Section [63-38-3.6] 63J-1-307, the Legislature may not appropriate monies from the disaster recovery fund to eliminate or otherwise reduce an operating deficit if the monies appropriated from the disaster recovery fund are used for a purpose other than one listed in this section.
(c) The Legislature may not amend the purposes for which monies in the disaster recovery fund may be used except by the affirmative vote of two-thirds of all the members elected to each house.
Section 678. Section 53-2-404 is amended to read:
53-2-404
. State costs for emergency disaster services.(1) Subject to this section and Section 53-2-403, the division shall use monies described in Subsection 53-2-403(1)(c)(i) to fund costs to the state of emergency disaster services.
(2) Monies paid by the division under this section to government entities and private persons providing emergency disaster services are subject to [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
Section 679. Section 53-2-509 is amended to read:
53-2-509
. Personnel responding to requests for assistance.(1) Each person or entity holding a license, certificate, or other permit evidencing qualification in a professional, mechanical, or other skill and responding to a request from a requesting political subdivision shall, while providing assistance during a declared emergency or during an authorized drill or exercise, be considered to be licensed, certified, or permitted in the requesting political subdivision, except as limited by the chief executive officer of the requesting political subdivision.
(2) Each law enforcement officer rendering aid as provided in this part under the authority of a state of emergency declared by the governor, whether inside or outside the officer's jurisdiction, shall have all law enforcement powers and the same privileges and immunities that the officer has in the officer's own jurisdiction.
(3) Each employee of a responding political subdivision responding to a request by or giving assistance to a requesting political subdivision as provided in this part:
(a) is entitled to:
(i) all applicable workers compensation benefits for injury or death occurring as a result of the employee's participation in the response or assistance; and
(ii) any additional state or federal benefits available for line of duty injury or death; and
(b) is, for purposes of liability, considered to be an employee of the requesting political subdivision.
(4) Each responding political subdivision and its employees are immune from liability arising out of their actions in responding to a request from a requesting political subdivision to the extent provided in Section [63-30d-201] 63G-7-201.
Section 680. Section 53-3-104 is amended to read:
53-3-104
. Division duties.The division shall:
(1) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules:
(a) for examining applicants for a license, as necessary for the safety and welfare of the traveling public;
(b) for acceptable documentation of an applicant's identity, Utah resident status, Utah residence address, proof of legal presence, proof of citizenship of a country other than the United States, and other proof or documentation required under this chapter;
(c) regarding the restrictions to be imposed on a person driving a motor vehicle with a temporary learner permit or learner permit; and
(d) for exemptions from licensing requirements as authorized in this chapter;
(2) examine each applicant according to the class of license applied for;
(3) license motor vehicle drivers;
(4) file every application for a license received by it and shall maintain indices containing:
(a) all applications denied and the reason each was denied;
(b) all applications granted; and
(c) the name of every licensee whose license has been suspended, disqualified, or revoked by the division and the reasons for the action;
(5) suspend, revoke, disqualify, cancel, or deny any license issued in accordance with this chapter;
(6) file all accident reports and abstracts of court records of convictions received by it under state law;
(7) maintain a record of each licensee showing his convictions and the traffic accidents in which he has been involved where a conviction has resulted;
(8) consider the record of a licensee upon an application for renewal of a license and at other appropriate times;
(9) search the license files, compile, and furnish a report on the driving record of any person licensed in the state in accordance with Section 53-3-109;
(10) develop and implement a record system as required by Section 41-6a-604;
(11) in accordance with Section 53A-13-208, establish:
(a) procedures and standards to certify teachers of driver education classes to administer knowledge and skills tests;
(b) minimal standards for the tests; and
(c) procedures to enable school districts to administer or process any tests for students to receive a class D operator's license;
(12) in accordance with Section 53-3-510, establish:
(a) procedures and standards to certify licensed instructors of commercial driver training school courses to administer the skills test;
(b) minimal standards for the test; and
(c) procedures to enable licensed commercial driver training schools to administer or process skills tests for students to receive a class D operator's license; and
(13) provide administrative support to the Driver License Medical Advisory Board created in Section 53-3-303.
Section 681. Section 53-3-106 is amended to read:
53-3-106
. Disposition of revenues under this chapter -- Restricted account created -- Uses as provided by appropriation -- Nonlapsing.(1) There is created within the Transportation Fund a restricted account known as the "Department of Public Safety Restricted Account."
(2) The account consists of monies generated from the following revenue sources:
(a) all monies received under this chapter;
(b) administrative fees received according to the fee schedule authorized under this chapter and Section [63-38-3.2] 63J-1-303; and
(c) any appropriations made to the account by the Legislature.
(3) (a) The account shall earn interest.
(b) All interest earned on account monies shall be deposited in the account.
(4) The expenses of the department in carrying out this chapter shall be provided for by legislative appropriation from this account.
(5) The amount in excess of $45 of the fees collected under Subsection 53-3-105(30) shall be appropriated by the Legislature from this account to the department to implement the provisions of Section 53-1-117, except that of the amount in excess of $45, $40 shall be deposited in the State Laboratory Drug Testing restricted account created in Section 26-1-34.
(6) All monies received under Subsection 41-6a-1406(6)(b)(ii) shall be appropriated by the Legislature from this account to the department to implement the provisions of Section 53-1-117.
(7) Appropriations to the department from the account are nonlapsing.
Section 682. Section 53-3-109 is amended to read:
53-3-109
. Records -- Access -- Fees -- Rulemaking.(1) (a) Except as provided in this section, all records of the division shall be classified and disclosed in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) The division may only disclose personal identifying information:
(i) when the division determines it is in the interest of the public safety to disclose the information; and
(ii) in accordance with the federal Driver's Privacy Protection Act of 1994, 18 U.S.C. Chapter 123.
(c) The division may disclose personal identifying information:
(i) to a licensed private investigator holding a valid agency or registrant license, with a legitimate business need;
(ii) to an insurer, insurance support organization, or a self-insured entity, or its agents, employees, or contractors that issues any motor vehicle insurance under Title 31A, Chapter 22, Part 3, Motor Vehicle Insurance, for use in connection with claims investigation activities, antifraud activities, rating, or underwriting for any person issued a license certificate under this chapter; or
(iii) to a depository institution as defined in Section 7-1-103 for use in accordance with the federal Driver's Privacy Protection Act of 1994, 18 U.S.C. Chapter 123.
(2) (a) A person who receives personal identifying information shall be advised by the division that the person may not:
(i) disclose the personal identifying information from that record to any other person; or
(ii) use the personal identifying information from that record for advertising or solicitation purposes.
(b) Any use of personal identifying information by an insurer or insurance support organization, or by a self-insured entity or its agents, employees, or contractors not authorized by Subsection (1)(c)(ii) is:
(i) an unfair marketing practice under Section 31A-23a-402; or
(ii) an unfair claim settlement practice under Subsection 31A-26-303(3).
(3) (a) Notwithstanding the provisions of Subsection (1)(b), the division or its designee may disclose portions of a driving record, in accordance with this Subsection (3), to an insurer as defined under Section 31A-1-301, or a designee of an insurer, for purposes of assessing driving risk on the insurer's current motor vehicle insurance policyholders.
(b) The disclosure under Subsection (3)(a) shall:
(i) include the licensed driver's name, driver license number, date of birth, and an indication of whether the driver has had a moving traffic violation that is a reportable violation, as defined under Section 53-3-102 during the previous month;
(ii) be limited to the records of drivers who, at the time of the disclosure, are covered under a motor vehicle insurance policy of the insurer; and
(iii) be made under a contract with the insurer or a designee of an insurer.
(c) The contract under Subsection (3)(b)(iii) shall specify:
(i) the criteria for searching and compiling the driving records being requested;
(ii) the frequency of the disclosures;
(iii) the format of the disclosures, which may be in bulk electronic form; and
(iv) a reasonable charge for the driving record disclosures under Subsection (3).
(4) The division may:
(a) collect fees in accordance with Section 53-3-105 for searching and compiling its files or furnishing a report on the driving record of a person;
(b) prepare under the seal of the division and deliver upon request, a certified copy of any record of the division, and charge a fee under Section [63-38-3.2] 63J-1-303 for each document authenticated; and
(c) charge reasonable fees established in accordance with the procedures and requirements of Section [63-38-3.2] 63J-1-303 for disclosing personal identifying information under Subsection (1)(c).
(5) Each certified copy of a driving record furnished in accordance with this section is admissible in any court proceeding in the same manner as the original.
(6) (a) A driving record furnished under this section may only report on the driving record of a person for a period of ten years.
(b) Subsection (6)(a) does not apply to court or law enforcement reports and to reports of commercial driver license violations.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules to designate:
(a) what information shall be included in a report on the driving record of a person;
(b) the form of a report or copy of the report which may include electronic format;
(c) the form of a certified copy, as required under Section 53-3-216, which may include electronic format;
(d) the form of a signature required under this chapter which may include electronic format;
(e) the form of written request to the division required under this chapter which may include electronic format;
(f) the procedures, requirements, and formats for disclosing personal identifying information under Subsection (1)(c); and
(g) the procedures, requirements, and formats necessary for the implementation of Subsection (3).
Section 683. Section 53-3-205 is amended to read:
53-3-205
. Application for license or endorsement -- Fee required -- Tests -- Expiration dates of licenses and endorsements -- Information required -- Previous licenses surrendered -- Driving record transferred from other states -- Reinstatement -- Fee required -- License agreement.(1) An application for any original license, provisional license, or endorsement shall be:
(a) made upon a form furnished by the division; and
(b) accompanied by a nonrefundable fee set under Section 53-3-105.
(2) An application and fee for an original provisional class D license or an original class D license entitle the applicant to:
(a) not more than three attempts to pass both the knowledge and the skills tests for a class D license within six months of the date of the application;
(b) a learner permit if needed pending completion of the application and testing process; and
(c) an original class D license and license certificate after all tests are passed.
(3) An application and fee for an original class M license entitle the applicant to:
(a) not more than three attempts to pass both the knowledge and skills tests for a class M license within six months of the date of the application;
(b) a motorcycle learner permit if needed after the knowledge test is passed; and
(c) an original class M license and license certificate after all tests are passed.
(4) An application and fee for a motorcycle or taxicab endorsement entitle the applicant to:
(a) not more than three attempts to pass both the knowledge and skills tests within six months of the date of the application;
(b) a motorcycle learner permit if needed after the motorcycle knowledge test is passed; and
(c) a motorcycle or taxicab endorsement when all tests are passed.
(5) An application and fees for a commercial class A, B, or C license entitle the applicant to:
(a) not more than two attempts to pass a knowledge test and not more than two attempts to pass a skills test within six months of the date of the application;
(b) a commercial driver instruction permit if needed after the knowledge test is passed; and
(c) an original commercial class A, B, or C license and license certificate when all applicable tests are passed.
(6) An application and fee for a CDL endorsement entitle the applicant to:
(a) not more than two attempts to pass a knowledge test and not more than two attempts to pass a skills test within six months of the date of the application; and
(b) a CDL endorsement when all tests are passed.
(7) If a CDL applicant does not pass a knowledge test, skills test, or an endorsement test within the number of attempts provided in Subsection (5) or (6), each test may be taken two additional times within the six months for the fee provided in Section 53-3-105.
(8) (a) Except as provided under Subsections (8)(f), (g), and (h), an original license expires on the birth date of the applicant in the fifth year following the year the license certificate was issued.
(b) Except as provided under Subsections (8)(f), (g), and (h), a renewal or an extension to a license expires on the birth date of the licensee in the fifth year following the expiration date of the license certificate renewed or extended.
(c) Except as provided under Subsections (8)(f) and (g), a duplicate license expires on the same date as the last license certificate issued.
(d) An endorsement to a license expires on the same date as the license certificate regardless of the date the endorsement was granted.
(e) A license and any endorsement to the license held by a person ordered to active duty and stationed outside Utah in any of the armed forces of the United States, which expires during the time period the person is stationed outside of the state, is valid until 90 days after the person has been discharged or has left the service, unless:
(i) the license is suspended, disqualified, denied, or has been cancelled or revoked by the division; or
(ii) the licensee updates the information or photograph on the license certificate.
(f) An original license or a renewal to an original license obtained using proof under Subsection (9)(a)(i)(E)(III) expires on the date of the expiration of the applicant's foreign visa, permit, or other document granting legal presence in the United States or on the date provided under this Subsection (8), whichever is sooner.
(g) (i) An original license or a renewal or a duplicate to an original license expires on the next birth date of the applicant or licensee beginning on July 1, 2005 if:
(A) the license was obtained without using a Social Security number as required under Subsection (9); and
(B) the license certificate or driving privilege card is not clearly distinguished as required under Subsection 53-3-207(6).
(ii) A driving privilege card issued or renewed under Section 53-3-207 expires on the birth date of the applicant in the first year following the year that the driving privilege card was issued or renewed.
(iii) The expiration dates provided under Subsections (8)(g)(i) and (ii) do not apply to an original license or driving privilege card or to the renewal of an original license or driving privilege card with an expiration date provided under Subsection (8)(f).
(h) An original license or a renewal to an original license expires on the birth date of the applicant in the first year following the year that the license was issued if the applicant is required to register as a sex offender under Section 77-27-21.5.
(9) (a) In addition to the information required by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for requests for agency action, each applicant shall:
(i) provide the applicant's:
(A) full legal name;
(B) birth date;
(C) gender;
(D) between July 1, 2002 and July 1, 2007, race in accordance with the categories established by the United States Census Bureau;
(E) (I) Social Security number;
(II) temporary identification number (ITIN) issued by the Internal Revenue Service for a person who does not qualify for a Social Security number; or
(III) (Aa) proof that the applicant is a citizen of a country other than the United States;
(Bb) proof that the applicant does not qualify for a Social Security number; and
(Cc) proof of legal presence in the United States, as authorized under federal law; and
(F) Utah residence address as documented by a form acceptable under rules made by the division under Section 53-3-104, unless the application is for a temporary CDL issued under Subsection 53-3-407(2)(b);
(ii) provide a description of the applicant;
(iii) state whether the applicant has previously been licensed to drive a motor vehicle and, if so, when and by what state or country;
(iv) state whether the applicant has ever had any license suspended, cancelled, revoked, disqualified, or denied in the last six years, or whether the applicant has ever had any license application refused, and if so, the date of and reason for the suspension, cancellation, revocation, disqualification, denial, or refusal;
(v) state whether the applicant intends to make an anatomical gift under Title 26, Chapter 28, Revised Uniform Anatomical Gift Act, in compliance with Subsection (16);
(vi) state whether the applicant is required to register as a sex offender under Section 77-27-21.5;
(vii) state whether the applicant is a military veteran and does or does not authorize sharing the information with the state Department of Veterans' Affairs;
(viii) provide all other information the division requires; and
(ix) sign the application which signature may include an electronic signature as defined in Section 46-4-102.
(b) Each applicant shall have a Utah residence address, unless the application is for a temporary CDL issued under Subsection 53-3-407(2)(b).
(c) The division shall maintain on its computerized records an applicant's:
(i) (A) Social Security number;
(B) temporary identification number (ITIN); or
(C) other number assigned by the division if Subsection (9)(a)(i)(E)(III) applies; and
(ii) indication whether the applicant is required to register as a sex offender under Section 77-27-21.5.
(d) An applicant may not be denied a license for refusing to provide race information required under Subsection (9)(a)(i)(D).
(10) The division shall require proof of every applicant's name, birthdate, and birthplace by at least one of the following means:
(a) current license certificate;
(b) birth certificate;
(c) Selective Service registration; or
(d) other proof, including church records, family Bible notations, school records, or other evidence considered acceptable by the division.
(11) When an applicant receives a license in another class, all previous license certificates shall be surrendered and canceled. However, a disqualified commercial license may not be canceled unless it expires before the new license certificate is issued.
(12) (a) When an application is received from a person previously licensed in another state to drive a motor vehicle, the division shall request a copy of the driver's record from the other state.
(b) When received, the driver's record becomes part of the driver's record in this state with the same effect as though entered originally on the driver's record in this state.
(13) An application for reinstatement of a license after the suspension, cancellation, disqualification, denial, or revocation of a previous license shall be accompanied by the additional fee or fees specified in Section 53-3-105.
(14) A person who has an appointment with the division for testing and fails to keep the appointment or to cancel at least 48 hours in advance of the appointment shall pay the fee under Section 53-3-105.
(15) A person who applies for an original license or renewal of a license agrees that the person's license is subject to any suspension or revocation authorized under this title or Title 41, Motor Vehicles.
(16) (a) The indication of intent under Subsection (9)(a)(v) shall be authenticated by the licensee in accordance with division rule.
(b) (i) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the division may, upon request, release to an organ procurement organization, as defined in Section 26-28-102, the names and addresses of all persons who under Subsection (9)(a)(v) indicate that they intend to make an anatomical gift.
(ii) An organ procurement organization may use released information only to:
(A) obtain additional information for an anatomical gift registry; and
(B) inform licensees of anatomical gift options, procedures, and benefits.
(17) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the division may release to the Department of Veterans' Affairs the names and addresses of all persons who indicate their status as a veteran under Subsection (9)(a)(vii).
(18) The division and its employees are not liable, as a result of false or inaccurate information provided under Subsection (9)(a)(v) or (vii), for direct or indirect:
(a) loss;
(b) detriment; or
(c) injury.
(19) A person who knowingly fails to provide the information required under Subsection (9)(a)(vi) is guilty of a class A misdemeanor.
Section 684. Section 53-3-221 (Superseded 07/01/08) is amended to read:
53-3-221 (Superseded 07/01/08)
. Offenses which may result in denial, suspension, disqualification, or revocation of license without hearing -- Additional grounds for suspension -- Point system for traffic violations -- Notice and hearing -- Reporting of traffic violation procedures.(1) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately deny, suspend, disqualify, or revoke the license of any person without hearing and without receiving a record of the person's conviction of crime when the division has been notified or has reason to believe the person:
(a) has committed any offenses for which mandatory suspension or revocation of a license is required upon conviction under Section 53-3-220;
(b) has, by reckless or unlawful driving of a motor vehicle, caused or contributed to an accident resulting in death or injury to any other person, or serious property damage;
(c) is incompetent to drive a motor vehicle or is afflicted with mental or physical infirmities or disabilities rendering it unsafe for the person to drive a motor vehicle upon the highways;
(d) has committed a serious violation of the motor vehicle laws of this state;
(e) has knowingly acquired, used, displayed, or transferred an item that purports to be an authentic driver license certificate issued by a governmental entity if the item is not an authentic driver license certificate or has permitted an unlawful use of the license as prohibited under Section 53-3-229; or
(f) has been convicted of serious offenses against traffic laws governing the movement of motor vehicles with a frequency that indicates a disrespect for traffic laws and a disregard for the safety of other persons on the highways.
(2) (a) The division may suspend the license of a person under Subsection (1) when the person has failed to comply with the terms stated on a traffic citation issued in this state, except this Subsection (2) does not apply to highway weight limit violations or violations of law governing the transportation of hazardous materials.
(b) This Subsection (2) applies to parking and standing violations only if a court has issued a warrant for the arrest of a person for failure to post bail, appear, or otherwise satisfy the terms of the citation.
(c) (i) This Subsection (2) may not be exercised unless notice of the pending suspension of the driving privilege has been sent at least ten days previously to the person at the address provided to the division.
(ii) After clearance by the division, a report authorized by Section 53-3-104 may not contain any evidence of a suspension that occurred as a result of failure to comply with the terms stated on a traffic citation.
(3) (a) The division may suspend the license of a person under Subsection (1) when the division has been notified by a court that the person has an outstanding unpaid fine, an outstanding incomplete restitution requirement, or an outstanding warrant levied by order of a court.
(b) The suspension remains in effect until the division is notified by the court that the order has been satisfied.
(c) After clearance by the division, a report authorized by Section 53-3-104 may not contain any evidence of the suspension.
(4) The division shall make rules establishing a point system as provided for in this Subsection (4).
(a) (i) The division shall assign a number of points to each type of moving traffic violation as a measure of its seriousness.
(ii) The points shall be based upon actual relationships between types of traffic violations and motor vehicle traffic accidents.
(b) Every person convicted of a traffic violation shall have assessed against his driving record the number of points that the division has assigned to the type of violation of which the person has been convicted, except that the number of points assessed shall be decreased by 10% if on the abstract of the court record of the conviction the court has graded the severity of violation as minimum, and shall be increased by 10% if on the abstract the court has graded the severity of violation as maximum.
(c) (i) A separate procedure for assessing points for speeding offenses shall be established by the division based upon the severity of the offense.
(ii) The severity of a speeding violation shall be graded as:
(A) "minimum" for exceeding the posted speed limit by up to ten miles per hour;
(B) "intermediate" for exceeding the posted speed limit by from 11 to 20 miles per hour; and
(C) "maximum" for exceeding the posted speed limit by 21 or more miles per hour.
(iii) Consideration shall be made for assessment of no points on minimum speeding violations, except for speeding violations in school zones.
(d) (i) Points assessed against a person's driving record shall be deleted for violations occurring before a time limit set by the division.
(ii) The time limit may not exceed three years.
(iii) The division may also delete points to reward violation-free driving for periods of time set by the division.
(e) (i) By publication in two newspapers having general circulation throughout the state, the division shall give notice of the number of points it has assigned to each type of traffic violation, the time limit set by the division for the deletion of points, and the point level at which the division will generally take action to deny or suspend under this section.
(ii) The division may not change any of the information provided above regarding points without first giving new notice in the same manner.
(5) (a) (i) Upon denying or suspending the license of a person under this section, the division shall immediately notify the licensee in a manner specified by the division and afford him an opportunity for a hearing in the county where the licensee resides.
(ii) The hearing shall be documented, and the division or its authorized agent may administer oaths, may issue subpoenas for the attendance of witnesses and the production of relevant books and papers, and may require a reexamination of the licensee.
(iii) One or more members of the division may conduct the hearing, and any decision made after a hearing before any number of the members of the division is as valid as if made after a hearing before the full membership of the division.
(iv) After the hearing the division shall either rescind its order of denial or suspension, extend the denial or suspension of the license, or revoke the license.
(b) The denial or suspension of the license remains in effect pending qualifications determined by the division regarding a person:
(i) whose license has been denied or suspended following reexamination;
(ii) who is incompetent to drive a motor vehicle;
(iii) who is afflicted with mental or physical infirmities that might make him dangerous on the highways; or
(iv) who may not have the necessary knowledge or skill to drive a motor vehicle safely.
(6) (a) The division may suspend or revoke the license of any resident of this state upon receiving notice of the conviction of that person in another state of an offense committed there that, if committed in this state, would be grounds for the suspension or revocation of a license.
(b) The division may, upon receiving a record of the conviction in this state of a nonresident driver of a motor vehicle or motorboat of any offense under the motor vehicle laws of this state, forward a certified copy of the record to the motor vehicle administrator in the state where the person convicted is a resident.
(7) (a) The division may suspend or revoke the license of any nonresident to drive a motor vehicle in this state for any cause for which the license of a resident driver may be suspended or revoked.
(b) Any nonresident who drives a motor vehicle upon a highway when his license has been suspended or revoked by the division is guilty of a class C misdemeanor.
(8) (a) The division may not deny or suspend the license of any person for a period of more than one year except:
(i) for failure to comply with the terms of a traffic citation under Subsection (2);
(ii) upon receipt of a second or subsequent order suspending juvenile driving privileges under Section 53-3-219;
(iii) when extending a denial or suspension upon receiving certain records or reports under Subsection 53-3-220(2); and
(iv) for failure to give and maintain owner's or operator's security under Section 41-12a-411.
(b) The division may suspend the license of a person under Subsection (2) until he shows satisfactory evidence of compliance with the terms of the traffic citation.
(9) (a) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately suspend the license of any person without hearing and without receiving a record of his conviction for a crime when the division has reason to believe that the person's license was granted by the division through error or fraud or that the necessary consent for the license has been withdrawn or is terminated.
(b) The procedure upon suspension is the same as under Subsection (5), except that after the hearing the division shall either rescind its order of suspension or cancel the license.
(10) (a) The division, having good cause to believe that a licensed driver is incompetent or otherwise not qualified to be licensed, may upon notice in a manner specified by the division of at least five days to the licensee require him to submit to an examination.
(b) Upon the conclusion of the examination the division may suspend or revoke the person's license, permit him to retain the license, or grant a license subject to a restriction imposed in accordance with Section 53-3-208.
(c) Refusal or neglect of the licensee to submit to an examination is grounds for suspension or revocation of his license.
(11) (a) Except as provided in Subsection (11)(b), a report authorized by Section 53-3-104 may not contain any evidence of a conviction for speeding on an interstate system in this state if the conviction was for a speed of ten miles per hour or less, above the posted speed limit and did not result in an accident, unless authorized in a manner specified by the division by the individual whose report is being requested.
(b) The provisions of Subsection (11)(a) do not apply for:
(i) a CDL license holder; or
(ii) a violation that occurred in a commercial motor vehicle.
(12) (a) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately suspend the license of a person if it has reason to believe that the person is the owner of a motor vehicle for which security is required under Title 41, Chapter 12a, Vehicle Financial Responsibility of Motor Vehicle Owners and Operators Act, and has driven the motor vehicle or permitted it to be driven within this state without the security being in effect.
(b) Section 41-12a-411 regarding the requirement of proof of owner's or operator's security applies to persons whose driving privileges are suspended under this Subsection (12).
(c) If the division exercises the right of immediate suspension granted under this Subsection (12), the notice and hearing provisions of Subsection (5) apply.
(d) A person whose license suspension has been sustained or whose license has been revoked by the division under this subsection may file a request for agency action requesting a hearing.
(13) Any suspension or revocation of a person's license under this section also disqualifies any license issued to that person under Part 4 of this chapter.
Section 685. Section 53-3-221 (Effective 07/01/08) is amended to read:
53-3-221 (Effective 07/01/08)
. Offenses which may result in denial, suspension, disqualification, or revocation of license without hearing -- Additional grounds for suspension -- Point system for traffic violations -- Notice and hearing -- Reporting of traffic violation procedures.(1) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately deny, suspend, disqualify, or revoke the license of any person without hearing and without receiving a record of the person's conviction of crime when the division has been notified or has reason to believe the person:
(a) has committed any offenses for which mandatory suspension or revocation of a license is required upon conviction under Section 53-3-220;
(b) has, by reckless or unlawful driving of a motor vehicle, caused or contributed to an accident resulting in death or injury to any other person, or serious property damage;
(c) is incompetent to drive a motor vehicle or is afflicted with mental or physical infirmities or disabilities rendering it unsafe for the person to drive a motor vehicle upon the highways;
(d) has committed a serious violation of the motor vehicle laws of this state;
(e) has knowingly acquired, used, displayed, or transferred an item that purports to be an authentic driver license certificate issued by a governmental entity if the item is not an authentic driver license certificate or has permitted an unlawful use of the license as prohibited under Section 53-3-229; or
(f) has been convicted of serious offenses against traffic laws governing the movement of motor vehicles with a frequency that indicates a disrespect for traffic laws and a disregard for the safety of other persons on the highways.
(2) (a) The division may suspend the license of a person under Subsection (1) when the person has failed to comply with the terms stated on a traffic citation issued in this state, except this Subsection (2) does not apply to highway weight limit violations or violations of law governing the transportation of hazardous materials.
(b) This Subsection (2) applies to parking and standing violations only if a court has issued a warrant for the arrest of a person for failure to post bail, appear, or otherwise satisfy the terms of the citation.
(c) (i) This Subsection (2) may not be exercised unless notice of the pending suspension of the driving privilege has been sent at least ten days previously to the person at the address provided to the division.
(ii) After clearance by the division, a report authorized by Section 53-3-104 may not contain any evidence of a suspension that occurred as a result of failure to comply with the terms stated on a traffic citation.
(3) (a) The division may suspend the license of a person under Subsection (1) when the division has been notified by a court that the person has an outstanding unpaid fine, an outstanding incomplete restitution requirement, or an outstanding warrant levied by order of a court.
(b) The suspension remains in effect until the division is notified by the court that the order has been satisfied.
(c) After clearance by the division, a report authorized by Section 53-3-104 may not contain any evidence of the suspension.
(4) The division shall make rules establishing a point system as provided for in this Subsection (4).
(a) (i) The division shall assign a number of points to each type of moving traffic violation as a measure of its seriousness.
(ii) The points shall be based upon actual relationships between types of traffic violations and motor vehicle traffic accidents.
(b) Every person convicted of a traffic violation shall have assessed against his driving record the number of points that the division has assigned to the type of violation of which the person has been convicted, except that the number of points assessed shall be decreased by 10% if on the abstract of the court record of the conviction the court has graded the severity of violation as minimum, and shall be increased by 10% if on the abstract the court has graded the severity of violation as maximum.
(c) (i) A separate procedure for assessing points for speeding offenses shall be established by the division based upon the severity of the offense.
(ii) The severity of a speeding violation shall be graded as:
(A) "minimum" for exceeding the posted speed limit by up to ten miles per hour;
(B) "intermediate" for exceeding the posted speed limit by from 11 to 20 miles per hour; and
(C) "maximum" for exceeding the posted speed limit by 21 or more miles per hour.
(iii) Consideration shall be made for assessment of no points on minimum speeding violations, except for speeding violations in school zones.
(d) (i) Points assessed against a person's driving record shall be deleted for violations occurring before a time limit set by the division.
(ii) The time limit may not exceed three years.
(iii) The division may also delete points to reward violation-free driving for periods of time set by the division.
(e) (i) By publication in two newspapers having general circulation throughout the state, the division shall give notice of the number of points it has assigned to each type of traffic violation, the time limit set by the division for the deletion of points, and the point level at which the division will generally take action to deny or suspend under this section.
(ii) The division may not change any of the information provided above regarding points without first giving new notice in the same manner.
(5) (a) (i) Upon denying or suspending the license of a person under this section, the division shall immediately notify the licensee in a manner specified by the division and afford him an opportunity for a hearing in the county where the licensee resides.
(ii) The hearing shall be documented, and the division or its authorized agent may administer oaths, may issue subpoenas for the attendance of witnesses and the production of relevant books and papers, and may require a reexamination of the licensee.
(iii) One or more members of the division may conduct the hearing, and any decision made after a hearing before any number of the members of the division is as valid as if made after a hearing before the full membership of the division.
(iv) After the hearing the division shall either rescind its order of denial or suspension, extend the denial or suspension of the license, or revoke the license.
(b) The denial or suspension of the license remains in effect pending qualifications determined by the division regarding a person:
(i) whose license has been denied or suspended following reexamination;
(ii) who is incompetent to drive a motor vehicle;
(iii) who is afflicted with mental or physical infirmities that might make him dangerous on the highways; or
(iv) who may not have the necessary knowledge or skill to drive a motor vehicle safely.
(6) (a) Subject to Subsection (6)(d), the division shall suspend a person's license when the division receives notice from the Office of Recovery Services that the Office of Recovery Services has ordered the suspension of the person's license.
(b) A suspension under Subsection (6)(a) shall remain in effect until the division receives notice from the Office of Recovery Services that the Office of Recovery Services has rescinded the order of suspension.
(c) After an order of suspension is rescinded under Subsection (6)(b), a report authorized by Section 53-3-104 may not contain any evidence of the suspension.
(d) (i) If the division suspends a person's license under this Subsection (6), the division shall, upon application, issue a temporary limited driver license to the person if that person needs a driver license for employment, education, or child visitation.
(ii) The temporary limited driver license described in this section:
(A) shall provide that the person may operate a motor vehicle only for the purpose of driving to or from the person's place of employment, education, or child visitation;
(B) shall prohibit the person from driving a motor vehicle for any purpose other than a purpose described in Subsection (6)(d)(ii)(A); and
(C) shall expire 90 days after the day on which the temporary limited driver license is issued.
(iii) (A) During the period beginning on the day on which a temporary limited driver license is issued under this Subsection (6), and ending on the day that the temporary limited driver license expires, the suspension described in this Subsection (6) only applies if the person who is suspended operates a motor vehicle for a purpose other than employment, education, or child visitation.
(B) Upon expiration of a temporary limited driver license described in this Subsection (6)(d):
(I) a suspension described in Subsection (6)(a) shall be in full effect until the division receives notice, under Subsection (6)(b), that the order of suspension is rescinded; and
(II) a person suspended under Subsection (6)(a) may not drive a motor vehicle for any reason.
(iv) The division is not required to issue a limited driver license to a person under this Subsection (6)(d) if there are other legal grounds for the suspension of the person's driver license.
(v) The division shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement the provisions of this part.
(7) (a) The division may suspend or revoke the license of any resident of this state upon receiving notice of the conviction of that person in another state of an offense committed there that, if committed in this state, would be grounds for the suspension or revocation of a license.
(b) The division may, upon receiving a record of the conviction in this state of a nonresident driver of a motor vehicle or motorboat of any offense under the motor vehicle laws of this state, forward a certified copy of the record to the motor vehicle administrator in the state where the person convicted is a resident.
(8) (a) The division may suspend or revoke the license of any nonresident to drive a motor vehicle in this state for any cause for which the license of a resident driver may be suspended or revoked.
(b) Any nonresident who drives a motor vehicle upon a highway when his license has been suspended or revoked by the division is guilty of a class C misdemeanor.
(9) (a) The division may not deny or suspend the license of any person for a period of more than one year except:
(i) for failure to comply with the terms of a traffic citation under Subsection (2);
(ii) upon receipt of a second or subsequent order suspending juvenile driving privileges under Section 53-3-219;
(iii) when extending a denial or suspension upon receiving certain records or reports under Subsection 53-3-220(2);
(iv) for failure to give and maintain owner's or operator's security under Section 41-12a-411; or
(v) when the division suspends the license under Subsection (6).
(b) The division may suspend the license of a person under Subsection (2) until he shows satisfactory evidence of compliance with the terms of the traffic citation.
(10) (a) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately suspend the license of any person without hearing and without receiving a record of his conviction for a crime when the division has reason to believe that the person's license was granted by the division through error or fraud or that the necessary consent for the license has been withdrawn or is terminated.
(b) The procedure upon suspension is the same as under Subsection (5), except that after the hearing the division shall either rescind its order of suspension or cancel the license.
(11) (a) The division, having good cause to believe that a licensed driver is incompetent or otherwise not qualified to be licensed, may upon notice in a manner specified by the division of at least five days to the licensee require him to submit to an examination.
(b) Upon the conclusion of the examination the division may suspend or revoke the person's license, permit him to retain the license, or grant a license subject to a restriction imposed in accordance with Section 53-3-208.
(c) Refusal or neglect of the licensee to submit to an examination is grounds for suspension or revocation of his license.
(12) (a) Except as provided in Subsection (12)(b), a report authorized by Section 53-3-104 may not contain any evidence of a conviction for speeding on an interstate system in this state if the conviction was for a speed of ten miles per hour or less, above the posted speed limit and did not result in an accident, unless authorized in a manner specified by the division by the individual whose report is being requested.
(b) The provisions of Subsection (12)(a) do not apply for:
(i) a CDL license holder; or
(ii) a violation that occurred in a commercial motor vehicle.
(13) (a) By following the emergency procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may immediately suspend the license of a person if it has reason to believe that the person is the owner of a motor vehicle for which security is required under Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle Owners and Operators Act, and has driven the motor vehicle or permitted it to be driven within this state without the security being in effect.
(b) Section 41-12a-411 regarding the requirement of proof of owner's or operator's security applies to persons whose driving privileges are suspended under this Subsection (13).
(c) If the division exercises the right of immediate suspension granted under this Subsection (13), the notice and hearing provisions of Subsection (5) apply.
(d) A person whose license suspension has been sustained or whose license has been revoked by the division under this Subsection (13) may file a request for agency action requesting a hearing.
(14) Any suspension or revocation of a person's license under this section also disqualifies any license issued to that person under Part 4, Uniform Driver License Act, of this chapter.
Section 686. Section 53-3-221.5 (Effective 07/01/08) is amended to read:
53-3-221.5 (Effective 07/01/08)
. Disclosure of license information to the Office of Recovery Services.(1) The division shall disclose to the Office of Recovery Services the name, address, and other identifying information of each person:
(a) to whom a license has been issued; or
(b) whose driving privileges have been suspended, revoked, or reinstated.
(2) All information received by the Office of Recovery Services under this section is subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 687. Section 53-3-303.5 is amended to read:
53-3-303.5
. Driver License Medical Advisory Board -- Medical waivers.(1) The Driver License Medical Advisory Board shall:
(a) advise the director of the division; and
(b) establish and recommend in a manner specified by the board functional ability profile guidelines and standards for determining the physical, mental, and emotional capabilities of applicants for specific types of licenses, appropriate to various driving abilities.
(2) (a) The Driver License Medical Advisory Board shall establish fitness standards, including provisions for a waiver of specified federal driver's physical qualifications under 49 CFR 391.41, for intrastate commercial driving privileges.
(b) The standards under this Subsection (2) may only be implemented if the United States Department of Transportation (USDOT) will not impose any sanctions, including funding sanctions, against the state.
(3) In case of uncertainty of interpretation of these guidelines and standards, or in special circumstances, applicants may request a review of any division decision by a panel of board members. All of the actions of the director and board are subject to judicial review.
(4) (a) If a person applies for a waiver established under Subsection (2), the applicant shall bear any costs directly associated with the cost of administration of the waiver program, with respect to the applicant's application, in addition to any fees required under Section 53-3-105.
(b) The division shall establish any additional fee necessary to administer the license under this Subsection (4) in accordance with Section [63-38-3.2] 63J-1-303.
Section 688. Section 53-3-304 is amended to read:
53-3-304
. Licensing of impaired persons -- Medical review -- Restricted license -- Procedures.(1) (a) If the division has reason to believe that an applicant for a license is an impaired person, the division may require one or both of the following:
(i) a physical examination of the applicant by a health care professional and the submittal by the health care professional of a signed medical report indicating the results of the physical examination;
(ii) a follow-up medical review of the applicant by a health care professional and completion of a medical report at intervals established by the division under standards recommended by the board.
(b) The format of the medical report required under Subsection (a) shall be devised by the division with the advice of the board and shall elicit the necessary medical information to determine whether it would be a public safety hazard to permit the applicant to drive a motor vehicle on the highways.
(2) (a) The division may grant a restricted license to an impaired person who is otherwise qualified to obtain a license.
(b) The license continues in effect until its expiration date so long as the licensee complies with the requirements set forth by the division.
(c) The license renewal is subject to the conditions of this section.
(d) Any physical, mental, or emotional impairment of the applicant that in the opinion of the division does not affect the applicant's ability to exercise reasonable and ordinary control at all times in driving a motor vehicle upon the highway, does not prevent granting a license to the applicant.
(3) (a) If an examination is required under this section, the division is not bound by the recommendation of the examining health care professional but shall give fair consideration to the recommendation in acting upon the application. The criterion is whether upon all the evidence it is safe to permit the applicant to drive a motor vehicle.
(b) In deciding whether to grant or deny a license, the division may be guided by the opinion of experts in the fields of diagnosing and treating mental, physical, or emotional disabilities and may take into consideration any other factors that bear on the issue of public safety.
(4) Information provided under this section relating to physical, mental, or emotional impairment is classified under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 689. Section 53-3-505 is amended to read:
53-3-505
. School license -- Contents of rules.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commissioner shall make rules regarding the requirements for:
(a) a school license, including requirements concerning:
(i) locations;
(ii) equipment;
(iii) courses of instruction;
(iv) instructors;
(v) previous records of the school and instructors;
(vi) financial statements;
(vii) schedule of fees and charges;
(viii) character and reputation of the operators and instructors;
(ix) insurance as the commissioner determines necessary to protect the interests of the public; and
(x) other provisions the commissioner may prescribe for the protection of the public; and
(b) an instructor's license, including requirements concerning:
(i) moral character;
(ii) physical condition;
(iii) knowledge of the courses of instruction;
(iv) motor vehicle laws and safety principles and practices;
(v) previous personnel and employment records; and
(vi) other provisions the commissioner may prescribe for the protection of the public;
(c) applications for licenses; and
(d) minimum standards for:
(i) driving simulation devices that are fully interactive under Subsection 53-3-505.5(2)(b); and
(ii) driving simulation devices that are not fully interactive under Subsection 53-3-505.5(2)(c).
(2) Rules made by the commissioner shall require that a commercial driver training school offering motorcycle rider education meet or exceed the standards established by the Motorcycle Safety Foundation.
(3) Rules made by the commissioner shall require that an instructor of motorcycle rider education meet or exceed the standards for certification established by the Motorcycle Safety Foundation.
(4) The commissioner may call upon the state superintendent of public instruction for assistance in formulating appropriate rules.
Section 690. Section 53-3-506 is amended to read:
53-3-506
. License expiration and renewal -- Fee required -- Disposition of revenue.(1) (a) All commercial driver training school licenses, commercial testing only school licenses, school operator licenses, and instructor licenses:
(i) expire one year from the date of issuance; and
(ii) may be renewed upon application to the commissioner as prescribed by rule.
(b) Each application for an original or renewal school license, school operator license, or instructor license shall be accompanied by a fee determined by the department under Section [63-38-3.2] 63J-1-303.
(c) A license fee may not be refunded if the license is rejected, suspended, or revoked.
(2) The license fees collected under this part shall be:
(a) placed in a fund designated as the "Commercial Driver Training Law Fund"; and
(b) used under the supervision and direction of the director of the Division of Finance for the administration of this part.
Section 691. Section 53-3-510 is amended to read:
53-3-510
. Instructors certified to administer skills tests.(1) (a) The division shall establish procedures and standards to certify licensed instructors of driver training courses under this part to administer skills tests.
(b) An instructor may not administer a skills test under this section to a student that took the course from the same school or the same instructor.
(2) The division is the certifying authority.
(3) (a) Subject to Subsection (1), an instructor certified under this section may give skills tests designed for driver training courses authorized under this part.
(b) The division shall establish minimal standards for the test that is at least as difficult as those required to receive a class D operator's license under Title 53, Chapter 3, Uniform Driver License Act.
(c) A student who fails the skills test given by an instructor certified under this section may apply for a class D operator's license under Title 53, Chapter 3, Part 2, Driver Licensing Act, and complete the skills test at a division office.
(4) A student who successfully passes the test given by a certified driver training instructor under this section satisfies the driving parts of the test required for a class D operator's license.
(5) The division shall establish procedures to enable licensed commercial driver training schools to administer or process the skills test authorized under this section for a class D operator's license.
(6) The division shall establish the standards and procedures required under this section by rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 692. Section 53-3-805 is amended to read:
53-3-805
. Identification card -- Contents -- Specifications.(1) (a) The division shall issue an identification card that bears:
(i) the distinguishing number assigned to the person by the division;
(ii) the name, birth date, and Utah residence address of the person;
(iii) a brief description of the person for the purpose of identification;
(iv) a photograph of the person;
(v) a photograph or other facsimile of the person's signature; and
(vi) an indication whether the person intends to make an anatomical gift under Title 26, Chapter 28, Revised Uniform Anatomical Gift Act.
(b) An identification card issued by the division may not bear the person's Social Security number or place of birth.
(2) (a) The card shall be of an impervious material, resistant to wear, damage, and alteration.
(b) Except as provided under Section 53-3-806, the size, form, and color of the card is prescribed by the commissioner.
(3) At the applicant's request, the card may include a statement that the applicant has a special medical problem or allergies to certain drugs, for the purpose of medical treatment.
(4) (a) The indication of intent under Subsection 53-3-804(2)(j) shall be authenticated by the applicant in accordance with division rule.
(b) (i) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the division may, upon request, release to an organ procurement organization, as defined in Section 26-28-102, the names and addresses of all persons who under Subsection 53-3-804(2)(j) indicate that they intend to make an anatomical gift.
(ii) An organ procurement organization may use released information only to:
(A) obtain additional information for an anatomical gift registry; and
(B) inform applicants of anatomical gift options, procedures, and benefits.
(5) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the division may release to the Department of Veterans' Affairs the names and addresses of all persons who indicate their status as a veteran under Subsection 53-3-804(2)(l).
(6) The division and its employees are not liable, as a result of false or inaccurate information provided under Subsection 53-3-804(2)(j) or (l), for direct or indirect:
(a) loss;
(b) detriment; or
(c) injury.
Section 693. Section 53-3-903 is amended to read:
53-3-903
. Motorcycle Rider Education Program.(1) (a) The division shall develop standards for and administer the Motorcycle Rider Education Program.
(b) The division shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this chapter.
(2) The program shall include:
(a) a novice rider training course;
(b) a rider training course for experienced riders; and
(c) an instructor training course.
(3) The division may expand the program to include:
(a) enhancing public awareness of motorcycle riders;
(b) increasing the awareness of motorcycle riders of the effects of alcohol and drugs;
(c) motorcycle rider skills improvement;
(d) program and other motorcycle safety promotion; and
(e) improvement of motorcycle licensing efforts.
(4) (a) Rider training courses shall be open to all residents of the state who either hold a valid driver's license for any classification or are eligible for a temporary motorcycle learner's permit.
(b) An adequate number of novice rider training courses shall be provided to meet the reasonably anticipated needs of all persons in the state who are eligible and who desire to participate in the program.
(c) Program delivery may be phased in over a reasonable period of time.
(5) (a) The division may enter into contracts with either public or private institutions to provide a rider training course approved by the division.
(b) The institution shall issue certificates of completion in the manner and form prescribed by the director to persons who satisfactorily complete the requirements of the course.
(c) An institution conducting a rider training course may charge a reasonable tuition fee to cover the cost of offering the course.
(d) (i) The division may use program funds to defray its own expenses in administering the program.
(ii) The division may reimburse entities that offer approved courses for actual expenses incurred in offering the courses, up to a limit established by the division based upon available program funds.
(iii) Any reimbursement paid to an entity must be entirely reflected by the entity in reduced course enrollment fees for students.
(6) (a) Standards for the motorcycle rider training courses, including standards for course curriculum, materials, and student evaluation, and standards for the training and approval of instructors shall meet or exceed established national standards for motorcycle rider training courses prescribed by the Motorcycle Safety Foundation.
(b) Motorcycle rider training courses shall be taught only by instructors approved under Section 53-3-904.
(c) Motorcycle rider training courses for novices shall include at least eight hours of practice riding.
(7) The commissioner shall appoint a full-time program coordinator to oversee and direct the program.
Section 694. Section 53-5-704 is amended to read:
53-5-704
. Division duties -- Permit to carry concealed firearm -- Certification for concealed firearms instructor -- Requirements for issuance -- Violation -- Denial, suspension, or revocation -- Appeal procedure.(1) (a) The division or its designated agent shall issue a permit to carry a concealed firearm for lawful self defense to an applicant who is 21 years of age or older within 60 days after receiving an application, unless during the 60-day period the division finds proof that the applicant is not of good character.
(b) The permit is valid throughout the state for five years, without restriction, except as otherwise provided by Section 53-5-710.
(2) (a) An applicant satisfactorily demonstrates good character if the applicant:
(i) has not been convicted of a felony;
(ii) has not been convicted of a crime of violence;
(iii) has not been convicted of an offense involving the use of alcohol;
(iv) has not been convicted of an offense involving the unlawful use of narcotics or other controlled substances;
(v) has not been convicted of an offense involving moral turpitude;
(vi) has not been convicted of an offense involving domestic violence;
(vii) has not been adjudicated by a state or federal court as mentally incompetent, unless the adjudication has been withdrawn or reversed; and
(viii) is qualified to purchase and possess a firearm pursuant to Section 76-10-503 and federal law.
(b) In assessing good character under Subsection (2)(a), the licensing authority shall consider mitigating circumstances.
(3) (a) The division may deny, suspend, or revoke a concealed firearm permit if it has reasonable cause to believe that the applicant has been or is a danger to self or others as demonstrated by evidence, including:
(i) past pattern of behavior involving unlawful violence or threats of unlawful violence;
(ii) past participation in incidents involving unlawful violence or threats of unlawful violence; or
(iii) conviction of an offense in violation of Title 76, Chapter 10, Part 5, Weapons.
(b) The division may not deny, suspend, or revoke a concealed firearm permit solely for a single conviction for an infraction violation of Title 76, Chapter 10, Part 5, Weapons.
(c) In determining whether the applicant has been or is a danger to self or others, the division may inspect:
(i) expunged records of arrests and convictions of adults as provided in Section 77-18-15; and
(ii) juvenile court records as provided in Section 78-3a-206.
(d) (i) If a person granted a permit under this part has been charged with a crime of violence in any state, the division shall suspend the permit.
(ii) Upon notice of the acquittal of the person charged, or notice of the charges having been dropped, the division shall immediately reinstate the suspended permit.
(4) A former peace officer who departs full-time employment as a peace officer, in an honorable manner, shall be issued a concealed firearm permit within five years of that departure if the officer meets the requirements of this section.
(5) Except as provided in Subsection (6), the licensing authority shall also require the applicant to provide:
(a) the address of the applicant's permanent residence;
(b) one recent dated photograph;
(c) one set of fingerprints; and
(d) evidence of general familiarity with the types of firearms to be concealed as defined in Subsection (7).
(6) An applicant who is a law enforcement officer under Section 53-13-103 may provide a letter of good standing from the officer's commanding officer in place of the evidence required by Subsection (5)(d).
(7) (a) General familiarity with the types of firearms to be concealed includes training in:
(i) the safe loading, unloading, storage, and carrying of the types of firearms to be concealed; and
(ii) current laws defining lawful use of a firearm by a private citizen, including lawful self-defense, use of force by a private citizen, including use of deadly force, transportation, and concealment.
(b) Evidence of general familiarity with the types of firearms to be concealed may be satisfied by one of the following:
(i) completion of a course of instruction conducted by a national, state, or local firearms training organization approved by the division;
(ii) certification of general familiarity by a person who has been certified by the division, which may include a law enforcement officer, military or civilian firearms instructor, or hunter safety instructor; or
(iii) equivalent experience with a firearm through participation in an organized shooting competition, law enforcement, or military service.
(c) Instruction taken by a student under Subsection (7)(b) shall be in person and not through electronic means.
(8) (a) An applicant for certification as a Utah concealed firearms instructor shall:
(i) be at least 21 years of age;
(ii) be currently eligible to possess a firearm under Section 76-10-503 and federal law;
(iii) have a current National Rifle Association certification or its equivalent as determined by the division; and
(iv) for certificates issued beginning July 1, 2006, have taken a course of instruction and passed a certification test as described in Subsection (8)(c).
(b) An instructor's certification is valid for three years from the date of issuance, unless revoked by the division.
(c) (i) In order to obtain initial certification or renew a certification, an instructor shall attend an instructional course and pass a test under the direction of the division.
(ii) (A) Beginning May 1, 2006, the division shall provide or contract to provide the course referred to in Subsection (8)(c)(i) twice every year.
(B) The course shall include instruction on current Utah law related to firearms, including concealed carry statutes and rules, and the use of deadly force by private citizens.
(d) (i) Each applicant for certification under this Subsection (8) shall pay a fee of $50.00 at the time of application for initial certification.
(ii) The renewal fee for the certificate is $25.
(iii) The fees paid under Subsections (8)(d)(i) and (ii) may be used by the division as a dedicated credit to cover the cost incurred in maintaining and improving the instruction program required for concealed firearm instructors under this Subsection (8).
(9) A certified concealed firearms instructor shall provide each of the instructor's students with the required course of instruction outline approved by the division.
(10) (a) (i) A concealed firearms instructor is required to provide a signed certificate to a person successfully completing the offered course of instruction.
(ii) The instructor shall sign the certificate with the exact name indicated on the instructor's certification issued by the division under Subsection (8).
(iii) (A) The certificate shall also have affixed to it the instructor's official seal, which is the exclusive property of the instructor and may not be used by any other person.
(B) The instructor shall destroy the seal upon revocation or expiration of the instructor's certification under Subsection (8).
(C) The division shall determine the design and content of the seal to include at least the following:
(I) the instructor's name as it appears on the instructor's certification;
(II) the words "Utah Certified Concealed Firearms Instructor," "state of Utah," and "my certification expires on (the instructor's certification expiration date)"; and
(III) the instructor's business or residence address.
(D) The seal shall be affixed to each student certificate issued by the instructor in a manner that does not obscure or render illegible any information or signatures contained in the document.
(b) The applicant shall provide the certificate to the division in compliance with Subsection (5)(d).
(11) The division may deny, suspend, or revoke the certification of a concealed firearms instructor if it has reason to believe the applicant has:
(a) become ineligible to possess a firearm under Section 76-10-503 or federal law; or
(b) knowingly and willfully provided false information to the division.
(12) A concealed firearms instructor has the same appeal rights as set forth in Subsection (15).
(13) In providing instruction and issuing a permit under this part, the concealed firearms instructor and the licensing authority are not vicariously liable for damages caused by the permit holder.
(14) An individual who knowingly and willfully provides false information on an application filed under this part is guilty of a class B misdemeanor, and the application may be denied, or the permit may be suspended or revoked.
(15) (a) In the event of a denial, suspension, or revocation of a permit, the applicant may file a petition for review with the board within 60 days from the date the denial, suspension, or revocation is received by the applicant by certified mail, return receipt requested.
(b) The denial of a permit shall be in writing and shall include the general reasons for the action.
(c) If an applicant appeals the denial to the review board, the applicant may have access to the evidence upon which the denial is based in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(d) On appeal to the board, the agency has the burden of proof by a preponderance of the evidence.
(e) (i) Upon a ruling by the board on the appeal of a denial, the division shall issue a final order within 30 days stating the board's decision.
(ii) The final order shall be in the form prescribed by Subsection [63-46b-5] 63G-4-203(1)(i).
(iii) The final order is final agency action for purposes of judicial review under Section [63-46b-15] 63G-4-402.
(16) The commissioner may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to administer this chapter.
Section 695. Section 53-5-705 is amended to read:
53-5-705
. Temporary permit to carry concealed firearm -- Denial, suspension, or revocation -- Appeal.(1) The division or its designated agent may issue a temporary permit to carry a concealed firearm to a person who:
(a) has applied for a permit under Section 53-5-704;
(b) has applied for a temporary permit under this section; and
(c) meets the criteria required in Subsections (2) and (3).
(2) To receive a temporary permit under this section, the applicant shall demonstrate in writing to the satisfaction of the licensing authority extenuating circumstances that would justify issuing a temporary permit.
(3) A temporary permit may not be issued under this section until preliminary record checks regarding the applicant have been made with the National Crime Information Center and the division to determine any criminal history.
(4) A temporary permit is valid only for a maximum of 90 days or any lesser period specified by the division, or until a permit under Section 53-5-704 is issued to the holder of the temporary permit, whichever period is shorter.
(5) The licensing authority may deny, suspend, or revoke a temporary permit prior to expiration if the commissioner determines:
(a) the circumstances justifying the temporary permit no longer exist; or
(b) the holder of the temporary permit does not meet the requirements for a permit under Section 53-5-704.
(6) (a) The denial, suspension, or revocation of a temporary permit shall be in writing and shall include the reasons for the action.
(b) The licensing authority's decision to deny, suspend, or revoke a temporary permit may not be appealed to the board.
(c) Denial, suspension, or revocation under this subsection is final action for purposes of judicial review under Section [63-46b-15] 63G-4-402.
Section 696. Section 53-5-708 is amended to read:
53-5-708
. Permit -- Names private.(1) When any permit is issued, a record shall be maintained in the office of the licensing authority. Notwithstanding the requirements of Subsection [63-2-301] 63G-2-301(1)(b), the names, addresses, telephone numbers, dates of birth, and Social Security numbers of persons receiving permits are protected records under Subsection [63-2-304] 63G-2-305 (10).
(2) Copies of each permit issued shall be filed immediately by the licensing authority with the division.
Section 697. Section 53-5a-101, which is renumbered from Section 63-98-101 is renumbered and amended to read:
CHAPTER 5a. FIREARM LAWS
[63-98-101]. 53-5a-101. Title.
This chapter is known as "Firearm Laws."
Section 698. Section 53-5a-102, which is renumbered from Section 63-98-102 is renumbered and amended to read:
[63-98-102
]. 53-5a-102. Uniform firearm laws.(1) The individual right to keep and bear arms being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual's place of residence, property, business, or in any vehicle lawfully in the individual's possession or lawfully under the individual's control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is uniformly applicable throughout this state and in all its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section:
(a) "firearm" has the same meaning as defined in Subsection 76-10-501(9); and
(b) "local authority or state entity" includes public school districts, public schools, and state institutions of higher education.
(7) Nothing in this section restricts or expands private property rights.
Section 699. Section 53-6-105 is amended to read:
53-6-105
. Duties of director -- Powers -- Rulemaking.(1) The director, with the advice of the council, shall:
(a) prescribe standards for the certification of a peace officer training academy, certify an academy that meets the prescribed standards, and prescribe standards for revocation of certification for cause;
(b) prescribe minimum qualifications for certification of peace officers appointed or elected to enforce the laws of this state and its subdivisions and prescribe standards for revocation of certification for cause;
(c) establish minimum requirements for the certification of training instructors and establish standards for revocation of certification;
(d) provide for the issuance of appropriate certificates to those peace officers completing the basic training programs offered by a certified academy or those persons who pass a certification examination as provided for in this chapter;
(e) consult and cooperate with certified academy administrators and instructors for the continued development and improvement of the basic training programs provided by the certified academy and for the further development and implementation of advanced in-service training programs;
(f) consult and cooperate with state institutions of higher education to develop specialized courses of study for peace officers in the areas of criminal justice, police administration, criminology, social sciences, and other related disciplines;
(g) consult and cooperate with other departments, agencies, and local governments concerned with peace officer training;
(h) perform any other acts necessary to develop peace officer training programs within the state;
(i) report to the council at regular meetings of the council and when the council requires;
(j) recommend peace officer standards and training requirements to the commissioner, governor, and the Legislature; and
(k) make rules as provided in this chapter.
(2) With the permission of the commissioner, the director may execute contracts on behalf of the division with criminal justice agencies to provide training for employees of those agencies if:
(a) the employees or the employing agency pay a registration fee equivalent to the cost of the training; and
(b) the contract does not reduce the effectiveness of the division in its primary responsibility of providing training for peace officers of the state.
(3) The director may:
(a) revoke certification of a certified academy for cause; and
(b) make training aids and materials available to local law enforcement agencies.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and consistent with Title 53, Chapter 6, Part 3, Dispatcher Training and Certification Act, the director shall, with the advice of the council, make rules:
(a) establishing minimum requirements for the certification of dispatcher training instructors in a certified academy or interagency program and standards for revocation of this certification;
(b) establishing approved curriculum and a basic schedule for the basic dispatcher training course and the content of the dispatcher certification examination;
(c) providing for the issuance of appropriate certificates to a person who completes the basic dispatcher course or who passes a dispatcher certification examination as provided for in this chapter;
(d) establishing approved courses for certified dispatchers' annual training; and
(e) establishing a reinstatement procedure for a certified dispatcher who has not obtained the required annual training hours.
Section 700. Section 53-6-213 is amended to read:
53-6-213
. Appropriations from reparation fund.(1) The Legislature shall appropriate from the fund established in [Title 63, Chapter 25a, Part 4, the] Title 63M, Chapter 7, Part 5, Crime Victims' Reparations Act, to the division, funds for training of law enforcement officers in the state.
(2) The department shall make an annual report to the Legislature, which includes the amount received during the previous fiscal year.
Section 701. Section 53-7-204 is amended to read:
53-7-204
. Duties of Utah Fire Prevention Board -- Local administrative duties.(1) The board shall:
(a) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(i) adopting a nationally recognized fire code and the specific edition of that fire code as the state fire code to be used as the standard;
(ii) establishing minimum standards for the prevention of fire and for the protection of life and property against fire and panic in any:
(A) publicly owned building, including all public and private schools, colleges, and university buildings;
(B) building or structure used or intended for use as an asylum, a mental hospital, a hospital, a sanitarium, a home for the aged, an assisted living facility, a children's home or day care center, or any similar institutional type occupancy of any capacity; and
(C) place of assemblage where 50 or more persons may gather together in a building, structure, tent, or room for the purpose of amusement, entertainment, instruction, or education;
(iii) establishing safety and other requirements for placement and discharge of display fireworks based upon:
(A) the specific edition of the nationally recognized fire code selected by the board under Subsection (1)(a)(i); and
(B) relevant publications of the National Fire Protection Association;
(iv) establishing minimum safety standards for retail storage, handling, and sale of class C common state approved explosives;
(v) defining methods to establish proof of competence to place and discharge display fireworks;
(vi) for deputizing qualified persons to act as deputy fire marshals, and to secure special services in emergencies;
(vii) implementing Sections 53-7-106 and 53-7-205;
(viii) setting guidelines for use of funding;
(ix) establishing criteria for training and safety equipment grants for fire departments enrolled in firefighter certification; and
(x) establishing minimum ongoing training standards for hazardous materials emergency response agencies;
(b) recommend to the commissioner a state fire marshal;
(c) develop policies under which the state fire marshal and his authorized representatives will perform;
(d) provide for the employment of field assistants and other salaried personnel as required;
(e) prescribe the duties of the state fire marshal and his authorized representatives;
(f) establish a statewide fire prevention, fire education, and fire service training program in cooperation with the Board of Regents;
(g) establish a statewide fire statistics program for the purpose of gathering fire data from all political subdivisions of the state;
(h) establish a fire academy in accordance with Section 53-7-204.2;
(i) coordinate the efforts of all people engaged in fire suppression in the state;
(j) work aggressively with the local political subdivisions to reduce fire losses;
(k) regulate the sale and servicing of portable fire extinguishers and automatic fire suppression systems in the interest of safeguarding lives and property;
(l) establish a certification program for persons who inspect and test automatic fire sprinkler systems;
(m) establish a certification program for persons who inspect and test fire alarm systems; and
(n) establish a certification for persons who provide response services regarding hazardous materials emergencies.
(2) The board may incorporate in its rules by reference, in whole or in part, nationally recognized and readily available standards and codes pertaining to the protection of life and property from fire, explosion, or panic.
(3) (a) The board may only make amendments to the state fire code adopted under Subsection (1)(a)(i) in accordance with Section 53-7-205.
(b) The amendments may be applicable to the entire state or within a city, county, or fire protection district.
(4) The following functions shall be administered locally by a city, county, or fire protection district:
(a) issuing permits, including open burning permits pursuant to Sections 11-7-1 and 19-2-114;
(b) creating a local board of appeals in accordance with the state fire code; and
(c) establishing, modifying, or deleting fire flow and water supply requirements.
Section 702. Section 53-7-204.2 is amended to read:
53-7-204.2
. Fire Academy -- Establishment -- Fire Academy Support Account -- Funding.(1) In this section:
(a) "Account" means the Fire Academy Support Account created in Subsection (4).
(b) "Property insurance premium" means premium paid as consideration for property insurance as defined in Section 31A-1-301.
(2) The board shall:
(a) establish a fire academy that:
(i) provides instruction and training for paid, volunteer, institutional, and industrial firefighters;
(ii) develops new methods of firefighting and fire prevention;
(iii) provides training for fire and arson detection and investigation;
(iv) provides public education programs to promote fire safety;
(v) provides for certification of firefighters, pump operators, instructors, and officers; and
(vi) provides facilities for teaching fire-fighting skills;
(b) establish a cost recovery fee in accordance with Section [63-38-3.2] 63J-1-303 for training commercially employed firefighters; and
(c) request funding for the academy.
(3) The board may:
(a) accept gifts, donations, and grants of property and services on behalf of the fire academy; and
(b) enter into contractual agreements necessary to facilitate establishment of the school.
(4) (a) To provide a funding source for the academy and for the general operation of the State Fire Marshal Division, there is created in the General Fund a restricted account known as the Fire Academy Support Account.
(b) The following revenue shall be deposited in the account to implement this section:
(i) the percentage specified in Subsection (5) of the annual tax for each year that is levied, assessed, and collected under Title 59, Chapter 9, Taxation of Admitted Insurers, upon property insurance premiums and as applied to fire and allied lines insurance collected by insurance companies within the state;
(ii) the percentage specified in Subsection (6) of all money assessed and collected upon life insurance premiums within the state;
(iii) the cost recovery fees established by the board;
(iv) gifts, donations, and grants of property on behalf of the fire academy; and
(v) appropriations made by the Legislature.
(5) The percentage of the tax specified in Subsection (4)(b)(i) to be deposited in the account each fiscal year is 25%.
(6) The percentage of the money specified in Subsection (4)(b)(ii) to be deposited in the account each fiscal year is 5%.
Section 703. Section 53-7-216 is amended to read:
53-7-216
. Portable fire extinguishers -- Certification required to service.(1) Each firm engaged in the business of servicing portable fire extinguishers or automatic fire suppression systems that automatically detect fire and discharge an approved fire extinguishing agent onto or in the area of the fire shall be certified by the state fire marshal.
(2) An application for certification shall be in writing, on forms prescribed by the board, and require evidence of competency.
(3) The board may establish a fee under Section [63-38-3.2] 63J-1-303 to be paid upon application for certification.
(4) This section does not apply to standpipe systems, deluge systems, or automatic fire sprinkler systems.
Section 704. Section 53-7-225.5 is amended to read:
53-7-225.5
. Inspection and testing of automatic fire sprinkler systems -- Certification required.(1) Each person engaged in the inspection and testing of automatic fire sprinkler systems shall be certified by the state fire marshal.
(2) The board shall by rule prescribe an application form and standards for certification qualification and for renewal and revocation.
(3) Applicants for certification as an automatic fire sprinkler system inspector and tester shall:
(a) submit a written application on the form prescribed by the board;
(b) provide evidence of competency as required by the board; and
(c) submit the fee established under Subsection (4).
(4) The board may establish an application fee under Section [63-38-3.2] 63J-1-303.
Section 705. Section 53-7-225.6 is amended to read:
53-7-225.6
. Inspection and testing of fire alarm systems -- Certification and exceptions.(1) (a) Each person, other than fire and building inspectors and electricians licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, engaged in the inspection and testing of fire alarm systems shall be certified by the state fire marshal.
(b) The board shall by administrative rule prescribe:
(i) an application form; and
(ii) standards for certification qualification and for renewal and revocation.
(2) Applicants for certification as a fire alarm system inspector and tester shall:
(a) submit a written application on the form prescribed by the board;
(b) provide evidence of competency as required by the board; and
(c) submit the fee established under Subsection (3).
(3) The board may establish an application fee under Section [63-38-3.2] 63J-1-303.
Section 706. Section 53-7-314 is amended to read:
53-7-314
. Fees -- Setting -- Deposit -- Use.(1) The board shall establish fees authorized in this part in accordance with the procedures specified in Section [63-38-3.2] 63J-1-303, but the fees shall be deposited as provided in Subsection (2).
(2) Fees collected by the division under this part, shall be deposited with the state treasurer as a nonlapsing dedicated credit, to be used for the implementation of this part.
Section 707. Section 53-7-407 (Effective 07/01/08) is amended to read:
53-7-407 (Effective 07/01/08)
. Implementation -- Effect of part on Model Tobacco Settlement Act and Tobacco Tax and Licensing Act.(1) The state fire marshal may promulgate rules and regulations, pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to effectuate the purposes of this part.
(2) The State Tax Commission in the regular course of conducting inspections of wholesale dealers, agents, and retail dealers, as authorized under Title 59, Chapter 14, Cigarette and Tobacco Tax and Licensing Act, may inspect cigarettes to determine if the cigarettes are marked as required by Section 53-7-405. If the cigarettes are not marked as required, the State Tax Commission shall notify the state fire marshal.
(3) Nothing in this part shall affect an entity's obligations pursuant to:
(a) Title 59, Chapter 14, Cigarette and Tobacco Tax and Licensing Act; or
(b) Title 59, Chapter 22, Model Tobacco Settlement Act.
Section 708. Section 53-8-204 is amended to read:
53-8-204
. Division duties -- Official inspection stations -- Permits -- Fees -- Suspension or revocation -- Utah-based interstate commercial motor carriers.(1) The division shall:
(a) conduct examinations of every safety inspection station permit applicant and safety inspector certificate applicant to determine whether the applicant is properly equipped and qualified to make safety inspections;
(b) issue safety inspection station permits and safety inspector certificates to qualified applicants;
(c) establish application, renewal, and reapplication fees in accordance with Section [63-38-3.2] 63J-1-303 for safety inspection station permits and safety inspector certificates;
(d) provide instructions and all necessary forms, including safety inspection certificates, to safety inspection stations for the inspection of motor vehicles and the issuance of the safety inspection certificates;
(e) charge a $2 fee for each safety inspection certificate;
(f) investigate complaints regarding safety inspection stations and safety inspectors;
(g) compile and publish all applicable safety inspection laws, rules, instructions, and standards and distribute them to all safety inspection stations and provide updates to the compiled laws, rules, instructions, and standards as needed;
(h) establish a fee in accordance with Section [63-38-3.2] 63J-1-303 to cover the cost of compiling and publishing the safety inspection laws, rules, instructions, and standards and any updates; and
(i) assist the council in conducting its meetings and hearings.
(2) (a) (i) Receipts from the fees established in accordance with Subsection (1)(h) are fixed collections to be used by the division for the expenses of the Utah Highway Patrol incurred under Subsection (1)(h).
(ii) Funds received in excess of the expenses under Subsection (1)(h) shall be deposited in the Transportation Fund.
(b) (i) The first $.75 of the fee under Subsection (1)(e) is a dedicated credit to be used solely by the Utah Highway Patrol for the expenses of administering this section.
(ii) The remaining funds collected under Subsection (1)(e) shall be deposited in the Transportation Fund.
(iii) The dedicated credits described under Subsection (2)(b)(i) are in addition to any other appropriations provided to administer the safety inspection program duties under this section.
(3) The division may:
(a) before issuing a safety inspection permit, require an applicant, other than a fleet station or government station, to file a bond that will provide a guarantee that the applicant safety inspection station will make compensation for any damage to a motor vehicle during an inspection or adjustment due to negligence on the part of an applicant or his employees;
(b) establish procedures governing the issuance of safety inspection certificates to Utah-based interstate commercial motor carriers; and
(c) suspend, revoke, or refuse renewal of any safety inspection station permit issued when the division finds that the safety inspection station is not:
(i) properly equipped; or
(ii) complying with rules made by the division; and
(d) suspend, revoke, or refuse renewal of any safety inspection station permit or safety inspector certificate issued when the station or inspector has violated any safety inspection law or rule.
(4) The division shall maintain a record of safety inspection station permits and safety inspector certificates issued, suspended, revoked, or refused renewal under Subsection (3)(c).
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules:
(a) setting minimum standards covering the design, construction, condition, and operation of motor vehicle equipment for safely operating a motor vehicle on the highway;
(b) establishing motor vehicle safety inspection procedures to ensure a motor vehicle can be operated safely;
(c) establishing safety inspection station building, equipment, and personnel requirements necessary to qualify to perform safety inspections;
(d) establishing age, training, examination, and renewal requirements to qualify for a safety inspector certificate;
(e) establishing program guidelines for a school district that elects to implement a safety inspection apprenticeship program for high school students;
(f) establishing requirements:
(i) designed to protect consumers from unwanted or unneeded repairs or adjustments;
(ii) for maintaining safety inspection records;
(iii) for providing reports to the division; and
(iv) for maintaining and protecting safety inspection certificates;
(g) establishing procedures for a motor vehicle that fails a safety inspection;
(h) setting bonding amounts for safety inspection stations if bonds are required under Subsection (3)(a); and
(i) establishing procedures for a safety inspection station to follow if the station is going out of business.
(6) The rules of the division:
(a) shall conform as nearly as practical to federal motor vehicle safety standards including 49 CFR 393, 396, 396 Appendix G, and Federal Motor Vehicle Safety Standards 205; and
(b) may incorporate by reference, in whole or in part, the federal standards under Subsection (6)(a) and nationally recognized and readily available standards and codes on motor vehicle safety.
Section 709. Section 53-8-211 is amended to read:
53-8-211
. Safety inspection of school buses and other vehicles.(1) (a) The Highway Patrol shall:
(i) perform safety inspections at least twice each school year on all school buses operated by each school district and each private school in the state for the transportation of students, except as otherwise provided in Subsection (1)(b); and
(ii) cause to be removed from the public highways any vehicle found to have mechanical or other defects under Subsection (1)(a) endangering the safety of passengers and the public until the defects have been corrected.
(b) (i) A school district or private school may perform the safety inspections of a school bus that it operates in accordance with rules made by the division under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rule Making Act, and after consultation with the State Board of Education.
(ii) The rules under Subsection (b)(i) shall include provisions for:
(A) maintaining school bus drivers' hours of service records;
(B) requiring school bus drivers to maintain vehicle condition reports;
(C) maintaining school bus maintenance and repair records; and
(D) validating that defects discovered during the inspection process have been corrected prior to returning a school bus to service.
(iii) (A) The division shall audit school bus safety operations of each school district and private school performing inspections under Subsection (b)(i) to ensure compliance with the rules made under that subsection.
(B) The audit may include both a formal examination of the district's or school's inspection records and a random physical inspection of buses that have been safety inspected by the district or the school.
(iv) A school district or school must have a comprehensive school bus maintenance plan approved by the division in order to participate in the safety inspection program.
(v) A school district or private school may not operate any vehicle found to have mechanical or other defects that would endanger the safety of passengers and the public until the defects have been corrected.
(2) Motor vehicles operated by private schools or school districts, and not used for the transportation of students, are subject to Section 53-8-205.
Section 710. Section 53-9-103 is amended to read:
53-9-103
. Commissioner of Public Safety to administer -- Bureau to issue licenses -- Records -- Bonds -- Rulemaking.(1) The commissioner of the Department of Public Safety shall administer this chapter.
(2) (a) The bureau, acting at the direction of the commissioner, shall issue a private investigator license to any applicant who meets qualifications for licensure under Section 53-9-108.
(b) The bureau shall issue a license to a qualified apprentice applicant within five business days of receipt of the application.
(3) (a) The bureau shall keep records of:
(i) all applications for licenses under this chapter; and
(ii) all bonds and proof of workers' compensation required to be filed.
(b) The records shall include statements as to whether a license or renewal license has been issued for each application and bond.
(4) If a license is revoked, suspended, canceled, or denied or if a licensee is placed on probation, the date of filing the order for revocation, suspension, cancellation, denial, or probation shall be included in the records.
(5) The bureau shall maintain:
(a) a list of all licensees whose license has been revoked, suspended, placed on probation, or canceled; and
(b) a written record of complaints filed against licensees.
(6) The commissioner may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to administer this chapter.
Section 711. Section 53-9-108 is amended to read:
53-9-108
. Qualifications for licensure.(1) (a) An applicant for an agency license under this chapter shall be at least 21 years of age, a citizen or legal resident of the United States, and of good moral character.
(b) An applicant may not have been:
(i) convicted of a felony;
(ii) convicted of an act involving illegally using, carrying, or possessing a dangerous weapon;
(iii) convicted of an act of personal violence or force on any person or convicted of threatening to commit an act of personal violence or force against another person;
(iv) convicted of an act constituting dishonesty or fraud;
(v) convicted of an act involving moral turpitude;
(vi) placed on probation or parole;
(vii) named in an outstanding arrest warrant; or
(viii) convicted of illegally obtaining or disclosing private, controlled, or protected records as provided in Section [63-2-801] 63G-2-801.
(c) In assessing good moral character under Subsection (1)(b), the board shall consider mitigating circumstances presented by an applicant regarding information under Subsections (1)(b)(vi) and (viii).
(d) If previously or currently licensed in another state or jurisdiction, the applicant shall be in good standing within that state or jurisdiction.
(e) An applicant shall have completed a minimum of two years, or 2,000 hours, of investigative experience that consists of actual work performed as a licensed private investigator for a private agency, or 2,000 hours of work performed in an investigative capacity for the federal government, or for a state, county, or municipal government.
(f) (i) An applicant for an agency license shall substantiate investigative work experience claimed as years of qualifying experience and provide the exact details as to the character and nature of the experience on a form prescribed by the department and certified by the applicant's employers.
(ii) If the applicant is unable to supply written certification from an employer in whole or in part, the applicant may offer written certification from persons other than an employer covering the same subject matter for consideration by the board.
(iii) The applicant shall prove completion of the required experience to the satisfaction of the board and the board may independently verify the certification offered on behalf of the applicant.
(2) (a) (i) An applicant for a registrant license shall meet all qualification standards of this section, except Subsection (1)(d).
(ii) An applicant shall have a minimum of one year, or 1,000 hours, of investigative experience that consists of actual work performed as a private investigator for a private agency, the federal government, a state, county, or municipal government.
(b) A licensed registrant, as defined in Section 53-9-102, shall only work as an employee of, or as an independent contractor with, an agency licensed in Utah and physically located within Utah, and may not:
(i) advertise his services or conduct investigations for the general public; or
(ii) employ other private investigators or hire them as independent contractors.
(3) (a) An applicant for an apprentice license, lacking the experience required for a registrant license, shall meet all of the qualification standards in Subsection (1) except Subsection (1)(d), and shall complete an apprentice application.
(b) (i) An apprentice, as defined in Section 53-9-102, shall work under the direct supervision and guidance of an agency licensed in Utah and located within Utah, full-time for one year or for 1,000 hours, prior to acquiring eligibility for a registrant license.
(ii) A licensed apprentice shall only work under the direction of a licensed agency and may not:
(A) advertise his services or conduct investigations for the general public;
(B) employ other private investigators; or
(C) obtain information from the Utah State Tax Commission Motor Vehicle Division or Driver License Division within the Department of Public Safety, except the apprentice may utilize this information for a legitimate business need and under the direct supervision of a licensed agency.
(4) (a) An applicant for an agency, registrant, or apprentice license may be eligible for a license without meeting all or part of the investigative work experience required by this section if the applicant:
(i) has a criminal justice degree from an accredited college or university;
(ii) is certified by Peace Officer Standards and Training; or
(iii) can substantiate other similar law enforcement or investigative training in the areas set forth in Subsection 53-9-102(17).
(b) The board shall determine whether or not training may replace the work experience requirement and to what extent.
Section 712. Section 53-9-113 is amended to read:
53-9-113
. Grounds for denial of a license -- Appeal.(1) The board may deny a license or the renewal of a license if the applicant has:
(a) committed an act that, if committed by a licensee, would be grounds for probation, suspension, or revocation of a license under this chapter;
(b) employed or contracted with a person who has been refused a license under this chapter or who has had a license revoked;
(c) while not licensed under this chapter, committed, or aided and abetted the commission of, any act for which a license is required by this chapter; or
(d) knowingly made a material misstatement in connection with an application for a license or renewal of a license.
(2) (a) The board's denial of a license under this chapter shall:
(i) be in writing;
(ii) describe the basis for the denial; and
(iii) inform the applicant that if the applicant desires a hearing to contest the denial, the applicant shall submit a request in writing to the board within 30 days after the denial has been sent by the department by certified mail to the applicant.
(b) The board shall schedule a hearing on the denial for the next board meeting after the applicant's request for a hearing has been received by the board.
(3) The decision of the board may be appealed to the commissioner, who may:
(a) return the case to the board for reconsideration;
(b) modify the board's decision; or
(c) reverse the board's decision.
(4) The department shall promptly issue a final order of the commissioner and send the order to the applicant.
(5) Decisions of the commissioner are subject to judicial review pursuant to Section [63-46b-15] 63G-4-402.
Section 713. Section 53-9-115 is amended to read:
53-9-115
. Business name and address -- Posting of license -- Advertising.(1)(a) Subject to the provisions of this chapter, a licensee may conduct an investigative business under a name other than the licensee's by:
(i) complying with the requirements of Title 42, Chapter 2, Conducting Business Under Assumed Name; and
(ii) providing a copy of the filed certificate to the commissioner.
(b) Failure to comply with Subsection (1)(a) shall result in the suspension of the license.
(2) Each licensee shall have at least one physical location from which the normal business of the agency is conducted. The address of this location shall be on file with the commissioner at all times and is not a public record pursuant to Subsection [63-2-301] 63G-2-301(1)(b)(ii).
(3) The license certificate issued by the commissioner shall be posted in a conspicuous place in the principal office of the licensee.
(4) Subject to the provisions of this chapter, a licensee may solicit business through any accepted form of advertising.
(a) Any advertisement shall contain the licensee's name and license number as it appears on the license certificate.
(b) A licensee may not use false, deceptive, or misleading advertising.
Section 714. Section 53-9-118 is amended to read:
53-9-118
. Grounds for disciplinary action -- Types of action.(1) The board may suspend or revoke a license or registration or deny an application for a license if a person engages in any of the following:
(a) fraud or willful misrepresentation in applying for an original license or renewal of an existing license;
(b) using any letterhead, advertising, or other printed matter in any manner representing that the licensee is an instrumentality of the federal government, a state, or any political subdivision of a state;
(c) using a name different from that under which the licensee is currently licensed for any advertising, solicitation, or contract to secure business unless the name is an authorized fictitious name;
(d) impersonating, permitting, or aiding and abetting an employee or independent contractor to impersonate a peace officer or employee of the United States, any state, or a political subdivision of a state;
(e) knowingly violating, advising, encouraging, or assisting the violation of any statute, court order, or injunction in the course of a business regulated under this chapter;
(f) falsifying fingerprints or photographs while operating under this chapter;
(g) conviction of a felony;
(h) conviction of any act involving illegally using, carrying, or possessing a dangerous weapon;
(i) conviction of any act involving moral turpitude;
(j) conviction of any act of personal violence or force against any person or conviction of threatening to commit any act of personal violence or force against any person;
(k) soliciting business for an attorney in return for compensation;
(l) conviction of any act constituting dishonesty or fraud;
(m) being placed on probation, parole, or named in an outstanding arrest warrant;
(n) committing or permitting any employee or independent contractor to commit any act during the period when the license is expired or suspended;
(o) willfully neglecting to render to a client services or a report as agreed between the parties and for which compensation has been paid or tendered in accordance with the agreement of the parties unless the licensee chooses to withdraw from the case and returns the funds for work not yet completed;
(p) the unauthorized release of information acquired on behalf of a client by a licensee, or its employee or contract agent as a result of activities regulated under this chapter;
(q) failing to cooperate with, misrepresenting to, or refusing access to business or investigative records requested by the board or an authorized representative of the department engaged in an official investigation pursuant to this chapter;
(r) employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter if the licensure status was known or could have been ascertained by reasonable inquiry;
(s) permitting, authorizing, aiding, or in any way assisting an employee to conduct services as described in this chapter on an independent contractor basis and not under the authority of the licensed agency;
(t) failure to maintain in full force and effect workers' compensation insurance, if applicable;
(u) conducting private investigation services regulated by this chapter on a revoked or suspended license;
(v) accepting employment, contracting, or in any way engaging in employment that has an adverse impact on investigations being conducted on behalf of clients;
(w) advertising in a false, deceptive, or misleading manner;
(x) refusing to display the identification card issued by the department to any person having reasonable cause to verify the validity of the license;
(y) committing any act of unprofessional conduct;
(z) conviction of any act of illegally obtaining or disseminating private, controlled, or protected records under Section [63-2-801] 63G-2-801; or
(aa) engaging in any other conduct prohibited by this chapter.
(2) (a) If the board finds, based on the investigation, that the public health, safety, or welfare requires emergency action, the board may order a summary suspension of a license pending proceedings for revocation or other action.
(b) If the board issues a summary suspension order, the commissioner shall issue to the licensee a written notice of the order and indicate the licensee's right to request a formal hearing before the board.
(c) The licensee's request for a formal hearing shall be in writing and received by the department within 30 working days of the date the summary suspension was sent by the department to the licensee by certified mail.
(3) If the board finds, based on the investigation or hearing, that a violation under Subsection (1) has occurred, notice will be sent to the licensee of the board's decision by mailing a true copy to the licensee's last-known address in the department's files by certified mail, return receipt requested.
(4) Based on information the board receives from the investigation or during a hearing, it may do any of the following:
(a) dismiss the complaint if the board believes it is without merit;
(b) take emergency action;
(c) issue a letter of concern, if applicable;
(d) impose a civil fine not to exceed $500;
(e) place the license on suspension for a period of not more than 12 months;
(f) revoke the license or registration; and
(g) place all records, evidence findings, and conclusion, and any other information pertinent to the investigation, in a confidential and protected records section of the file maintained at the department.
(5) A letter of concern issued pursuant to Section 53-9-118 is a document that is retained by the department and may be used in future disciplinary actions against a licensee.
(6) Appeal of the board's decision shall be made in writing to the commissioner within 15 days of the date of issuance of the board's decision. The commissioner shall review the finding by the board and may affirm, return to the board for reconsideration, reverse, adopt, modify, supplement, amend, or reject the recommendation of the board.
(7) The department shall issue a final written order within 30 days outlining the commissioner’s decision on the appeal. The final order is final agency action for purposes of judicial review under Section [63-46b-15] 63G-4-402.
(8) All fines collected under this section shall be deposited in the General Fund.
Section 715. Section 53-10-108 is amended to read:
53-10-108
. Restrictions on access, use, and contents of division records -- Limited use of records for employment purposes -- Challenging accuracy of records -- Usage fees -- Missing children records.(1) Dissemination of information from a criminal history record or warrant of arrest information from division files is limited to:
(a) criminal justice agencies for purposes of administration of criminal justice and for employment screening by criminal justice agencies;
(b) noncriminal justice agencies or individuals for any purpose authorized by statute, executive order, court rule, court order, or local ordinance;
(c) agencies or individuals for the purpose of obtaining required clearances connected with foreign travel or obtaining citizenship;
(d) (i) agencies or individuals pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice; and
(ii) the agreement shall specifically authorize access to data, limit the use of the data to purposes for which given, and ensure the security and confidentiality of the data;
(e) agencies or individuals for the purpose of a preplacement adoptive study, in accordance with the requirements of Section 78-30-3.5;
(f) (i) agencies and individuals as the commissioner authorizes for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency; and
(ii) private security agencies through guidelines established by the commissioner for employment background checks for their own employees and prospective employees;
(g) a qualifying entity for employment background checks for their own employees and persons who have applied for employment with the qualifying entity; and
(h) other agencies and individuals as the commissioner authorizes and finds necessary for protection of life and property and for offender identification, apprehension, and prosecution pursuant to an agreement.
(2) An agreement under Subsection (1)(f) or (1)(h) shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, preserve the anonymity of individuals to whom the information relates, and ensure the confidentiality and security of the data.
(3) (a) Before requesting information under Subsection (1)(g), a qualifying entity must obtain a signed waiver from the person whose information is requested.
(b) The waiver must notify the signee:
(i) that a criminal history background check will be conducted;
(ii) who will see the information; and
(iii) how the information will be used.
(c) Information received by a qualifying entity under Subsection (1)(g) may only be:
(i) available to persons involved in the hiring or background investigation of the employee; and
(ii) used for the purpose of assisting in making an employment or promotion decision.
(d) A person who disseminates or uses information obtained from the division under Subsection (1)(g) for purposes other than those specified under Subsection (3)(c), in addition to any penalties provided under this section, is subject to civil liability.
(e) A qualifying entity that obtains information under Subsection (1)(g) shall provide the employee or employment applicant an opportunity to:
(i) review the information received as provided under Subsection (8); and
(ii) respond to any information received.
(f) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules to implement this Subsection (3).
(g) (i) The applicant fingerprint card fee under Subsection (1)(g) is $15.
(ii) The name check fee under Subsection (1)(g) is $10.
(iii) These fees remain in effect until changed by the division through the process under Section [63-38-3.2] 63J-1-303.
(iv) Funds generated under Subsections (3)(g)(i), (3)(g)(ii), and (8)(b) shall be deposited in the General Fund as a dedicated credit by the department to cover the costs incurred in providing the information.
(h) The division or its employees are not liable for defamation, invasion of privacy, negligence, or any other claim in connection with the contents of information disseminated under Subsection (1)(g).
(4) Any criminal history record information obtained from division files may be used only for the purposes for which it was provided and may not be further disseminated, except that a criminal history provided to an agency pursuant to Subsection (1)(e) may be provided by the agency to the person who is the subject of the history, another licensed child-placing agency, or the attorney for the adoptive parents for the purpose of facilitating an adoption.
(5) If an individual has no prior criminal convictions, criminal history record information contained in the division's computerized criminal history files may not include arrest or disposition data concerning an individual who has been acquitted, his charges dismissed, or when no complaint against him has been filed.
(6) (a) This section does not preclude the use of the division's central computing facilities for the storage and retrieval of criminal history record information.
(b) This information shall be stored so it cannot be modified, destroyed, or accessed by unauthorized agencies or individuals.
(7) Direct access through remote computer terminals to criminal history record information in the division's files is limited to those agencies authorized by the commissioner under procedures designed to prevent unauthorized access to this information.
(8) (a) The commissioner shall establish procedures to allow an individual right of access to review and receive a copy of his criminal history report.
(b) A processing fee for the right of access service, including obtaining a copy of the individual's criminal history report under Subsection (8)(a) is $10. This fee remains in effect until changed by the commissioner through the process under Section [63-38-3.2] 63J-1-303.
(c) (i) The commissioner shall establish procedures for an individual to challenge the completeness and accuracy of criminal history record information contained in the division's computerized criminal history files regarding that individual.
(ii) These procedures shall include provisions for amending any information found to be inaccurate or incomplete.
(9) The private security agencies as provided in Subsection (1)(f)(ii):
(a) shall be charged for access; and
(b) shall be registered with the division according to rules made by the division under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(10) Before providing information requested under this section, the division shall give priority to criminal justice agencies needs.
(11) (a) Misuse of access to criminal history record information is a class B misdemeanor.
(b) The commissioner shall be informed of the misuse.
Section 716. Section 53-10-406 is amended to read:
53-10-406
. DNA specimen analysis -- Bureau responsibilities.(1) The bureau shall:
(a) store all DNA specimens received and other physical evidence obtained from analysis of those specimens;
(b) analyze the specimens to establish the genetic profile of the donor or to otherwise determine the identity of persons or contract with other qualified public or private laboratories to conduct the analysis;
(c) maintain a criminal identification data base containing information derived from DNA analysis;
(d) utilize the specimens to create statistical population frequency data bases, provided that genetic profiles or other information in a population frequency data base may not be identified with specific individuals;
(e) ensure that the DNA identification system does not provide information allowing prediction of genetic disease or predisposition to illness; and
(f) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing procedures for obtaining, transmitting, and analyzing DNA specimens and for storing and destroying DNA specimens and other physical evidence and criminal identification information obtained from the analysis.
(2) Procedures for DNA analysis may include all techniques which the Department of Public Safety determines are accurate and reliable in establishing identity, including but not limited to, analysis of DNA, antigen antibodies, polymorphic enzymes, or polymorphic proteins.
(3) (a) In accordance with Section [63-2-304] 63G-2-305, all DNA specimens received shall be classified as protected.
(b) The Department of Public Safety may not transfer or disclose any DNA specimen, physical evidence, or criminal identification information obtained, stored, or maintained under this section, except under its provisions.
(4) Notwithstanding the provisions of Subsection [63-2-202] 63G-2-202(1), the department may deny inspection if it determines that there is a reasonable likelihood that the inspection would prejudice a pending criminal investigation.
(5) The department shall adopt procedures governing the inspection of records, DNA specimens, and challenges to the accuracy of records. The procedures shall accommodate the need to preserve the materials from contamination and destruction.
(6) (a) Whenever a court reverses the conviction, judgment, or order that created an obligation to provide a DNA specimen, the person who provided the specimen may request destruction of the specimen and any criminal identification record created in connection with that specimen.
(b) Upon receipt of a written request for destruction pursuant to this section and a certified copy of the court order reversing the conviction, judgment, or order, the Department of Public Safety shall destroy any specimen received from the person, any physical evidence obtained from that specimen, and any criminal identification records pertaining to the person, unless the department determines that the person has otherwise become obligated to submit a DNA specimen as a result of a separate conviction or juvenile adjudication for an offense listed in Section 53-10-403.
(7) The department is not required to destroy any item of physical evidence obtained from a DNA specimen if evidence relating to another person subject to the provisions of Sections 53-10-404 and 53-10-405 would as a result be destroyed.
(8) A DNA specimen, physical evidence, or criminal identification record may not be affected by an order to set aside a conviction, except under the provisions of this section.
(9) If funding is not available for analysis of any of the DNA specimens collected under this part, the bureau shall store the collected specimens until funding is made available for analysis through state or federal funds.
Section 717. Section 53-10-602 is amended to read:
53-10-602
. Committee's duties and powers.(1) The committee shall:
(a) review and make recommendations to the division, the Bureau of Communications, public safety answering points, and the Legislature on:
(i) technical and operational issues for the implementation of a unified statewide wireless and land-based E-911 emergency system;
(ii) specific technology and standards for the implementation of a unified statewide wireless and land-based E-911 emergency system;
(iii) expenditures by local public service answering points to assure implementation of a unified statewide wireless and land-based E-911 emergency system and standards of operation; and
(iv) mapping systems and technology necessary to implement the unified statewide wireless and land-based E-911 emergency system;
(b) administer the fund as provided in this part;
(c) assist as many local entities as possible, at their request, to implement the recommendations of the committee; and
(d) fulfill all other duties imposed on the committee by the Legislature by this part.
(2) The committee may sell, lease, or otherwise dispose of equipment or personal property belonging to the committee, the proceeds from which shall return to the fund.
(3) The committee shall issue the reimbursement allowed under Subsection 53-10-605(1)(b) provided that:
(a) the reimbursement is based on aggregated cost studies submitted to the committee by the wireless carriers seeking reimbursement; and
(b) the reimbursement to any one carrier does not exceed 125% of the wireless carrier's contribution to the fund.
(4) The committee shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer the fund created in Section 53-10-603 including rules that establish the criteria, standards, technology, and equipment that a local entity or state agency must adopt in order to qualify for grants from the fund.
Section 718. Section 53-11-103 is amended to read:
53-11-103
. Commissioner of Public Safety administers -- Licensure -- Rulemaking.(1) The commissioner administers this chapter, including keeping records of:
(a) all applications for licenses under this chapter; and
(b) proof of workers' compensation required to be filed.
(2) Records shall include statements as to whether a license or renewal license has been issued for each application and bond.
(3) If a license is revoked, suspended, or canceled, or a license is denied or placed on probation, the commissioner shall ensure the date of filing the order for revocation, suspension, cancellation, denial, or probation is included in the records.
(4) The commissioner shall maintain a list of all individuals, firms, partnerships, associations, or corporations that have had a license revoked, suspended, placed on probation, or canceled and a written record of complaints filed against licensees.
(5) (a) The commissioner may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer this chapter.
(b) These rules shall include a requirement that all providers offering instruction or continuing instruction required for licensure under this chapter shall offer the courses to all applicants at the same course fees, in order to be qualified by the board.
(6) All records referred to under this section are open to the public under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, except licensees' residential addresses and telephone numbers.
Section 719. Section 53-11-118 is amended to read:
53-11-118
. Grounds for denial of license -- Appeal.(1) The board may deny a license application or a license renewal if the applicant has:
(a) committed an act that, if committed by a licensee, would be grounds for probation, suspension, or revocation of a license under this chapter;
(b) employed as a bail recovery agent or bail recovery apprentice employee or contract employee a person who has been refused a license under this chapter or who has had a license revoked in any state;
(c) committed, or aided and abetted the commission of, any act for which a license is required by this chapter, while not licensed under this chapter; or
(d) knowingly made a material misstatement in connection with an application for a license or renewal of a license under this chapter.
(2) The issuance of an identification card shall be denied to an applicant if the applicant fails to meet the required licensure qualifications.
(3) (a) The denial of the issuance of a license under this chapter shall be in writing and describe the basis for the denial.
(b) The board's denial shall inform the applicant in writing that if the applicant desires a hearing to contest the denial, he shall submit a request in writing to the commissioner within 30 days after the issuance of the denial.
(c) The hearing shall be scheduled not later than 60 days after receipt of the request.
(4) The commissioner shall hear the appeal, and may:
(a) return the case to the board for reconsideration;
(b) modify the board's decision; or
(c) reverse the board's decision.
(5) Decisions of the commissioner are subject to judicial review pursuant to Section [63-46b-15] 63G-4-402.
Section 720. Section 53-11-119 is amended to read:
53-11-119
. Grounds for disciplinary action.(1) The board may take disciplinary action under Subsection (2), (4), or (5) regarding a license granted under this chapter if the board finds the licensee commits any of the following while engaged in activities regulated under this chapter:
(a) fraud or willful misrepresentation in applying for an original license or renewal of an existing license;
(b) using any letterhead, advertising, or other printed matter in any manner representing that he is an instrumentality of the federal government, a state, or any political subdivision of a state;
(c) using a name different from that under which he is currently licensed for any advertising, solicitation, or contract to secure business unless the name is an authorized fictitious name;
(d) impersonating, permitting, or aiding and abetting an employee to impersonate a law enforcement officer or employee of the United States, any state, or a political subdivision of a state;
(e) knowingly violating, advising, encouraging, or assisting in the violation of any statute, court order, or injunction in the course of conducting an agency regulated under this chapter;
(f) falsifying fingerprints or photographs while operating under this chapter;
(g) has a conviction for:
(i) a felony;
(ii) any act involving illegally using, carrying, or possessing a dangerous weapon;
(iii) any act involving moral turpitude;
(iv) any act of personal violence or force against any person or conviction of threatening to commit any act of personal violence or force against any person;
(v) any act constituting dishonesty or fraud;
(vi) impersonating a peace officer; or
(vii) any act of illegally obtaining or disseminating private, controlled, or protected records under Section [63-2-801] 63G-2-801;
(h) soliciting business for an attorney in return for compensation;
(i) being placed on probation, parole, compensatory service, or named in an outstanding arrest warrant;
(j) committing, or permitting any employee or contract employee to commit any act during the period between the expiration of a license for failure to renew within the time fixed by this chapter, and the reinstatement of the license, that would be cause for the suspension or revocation of the license or grounds for denial of the application for the license;
(k) willfully neglecting to render to a client services or a report as agreed between the parties and for which compensation has been paid or tendered in accordance with the agreement of the parties, but if the investigator chooses to withdraw from the case and returns the funds for work not yet done, no violation of this section exists;
(l) failing or refusing to cooperate with, failing to provide truthful information to, or refusing access to an authorized representative of the department engaged in an official investigation;
(m) employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter if the licensure status was known or could have been ascertained by reasonable inquiry;
(n) permitting, authorizing, aiding, or in any way assisting a licensed employee to conduct services as described in this chapter on an independent contractor basis and not under the authority of the licensed agency;
(o) failure to maintain in full force and effect workers' compensation insurance, if applicable;
(p) advertising in a false, deceptive, or misleading manner;
(q) refusing to display the identification card issued by the department to any person having reasonable cause to verify the validity of the license;
(r) committing any act of unprofessional conduct; or
(s) engaging in any other conduct prohibited by this chapter.
(2) On completion of an investigation, the board may:
(a) dismiss the case;
(b) take emergency action;
(c) issue a letter of concern, if applicable;
(d) impose a civil penalty not to exceed $500;
(e) place all records, evidence, findings, and conclusions and any other information pertinent to the investigation in the confidential and protected records section of the file maintained at the department; or
(f) if the board finds, based on the investigation, that a violation of Subsection (1) has occurred, notice shall be sent to the licensee of the results of the hearing by mailing a true copy to the licensee's last-known address in the department's files by certified mail, return receipt requested.
(3) A letter of concern shall be retained by the commissioner and may be used in future disciplinary actions against a licensee.
(4) (a) If the board finds, based on its investigation under Subsection (1), that the public health, safety, or welfare requires emergency action, the board may order a summary suspension of a license pending proceedings for revocation or other action.
(b) If the board issues an order of summary suspension, the board shall issue to the licensee a written notice of complaint and formal hearing, setting forth the charges made against the licensee and his right to a formal hearing before the board within 60 days.
(5) Based on information the board receives during a hearing it may:
(a) (i) dismiss the complaint if the board believes it is without merit;
(ii) fix a period and terms of probation best adapted to educate the licensee;
(iii) place the license on suspension for a period of not more than 12 months; or
(iv) revoke the license; and
(b) impose a civil penalty not to exceed $500.
(6) (a) On a finding by the board that a bail recovery agency licensee committed a violation of Subsection (1), the probation, suspension, or revocation terminates the employment of all licensees employed or employed by contract by the bail bond agency.
(b) If a licensee who is an employee or contract employee of a bail bond agency committed a violation of Subsection (1), the probation, suspension, or revocation applies only to the license held by that individual under this chapter.
(7) (a) Appeal of the board's decision shall be made in writing to the commissioner within 30 days after the date of issuance of the board's decision.
(b) The hearing shall be scheduled not later than 60 days after receipt of the request.
(c) The commissioner shall review the finding by the board and may affirm, return to the board for reconsideration, reverse, adopt, modify, supplement, amend, or reject the recommendation of the board.
(8) A person may appeal the commissioner's decision to the district court pursuant to Section [63-46b-15] 63G-4-402.
(9) All penalties collected under this section shall be deposited in the General Fund.
Section 721. Section 53-13-106 is amended to read:
53-13-106
. Federal officers -- State law enforcement authority.(1) (a) "Federal officer" includes:
(i) a special agent of the Federal Bureau of Investigation;
(ii) a special agent of the United States Secret Service;
(iii) a special agent of the United States Department of Homeland Security, excluding a customs inspector or detention removal officer;
(iv) a special agent of the Bureau of Alcohol, Tobacco and Firearms;
(v) a special agent of the Federal Drug Enforcement Agency;
(vi) a United States marshal, deputy marshal, and special deputy United States marshal; and
(vii) a U.S. Postal Inspector of the United States Postal Inspection Service.
(b) Notwithstanding Subsection (2), federal officers listed in Subsection (1)(a) have statewide law enforcement authority relating to felony offenses under the laws of this state.
(c) The council may designate other federal peace officers, as necessary, if the officers:
(i) are persons employed full-time by the United States government as federally recognized law enforcement officers primarily responsible for the investigation and enforcement of the federal laws;
(ii) have successfully completed formal law enforcement training offered by an agency of the federal government consisting of not less than 400 hours; and
(iii) maintain in-service training in accordance with the standards set forth in Section 53-13-103.
(2) Except as otherwise provided under [Title 63, Chapter 8] Title 63L, Chapter 8, Federal Jurisdiction, and Title 77, Chapter 9, Uniform Act on Fresh Pursuit, a federal officer may exercise state law enforcement authority only if:
(a) the state law enforcement agencies and county sheriffs with jurisdiction enter into an agreement with the federal agency to be given authority; and
(b) except as provided in Subsection (3), each federal officer employed by the federal agency meets the waiver requirements set forth in Section 53-6-206.
(3) A federal officer working as such in the state on or before July 1, 1995, may exercise state law enforcement authority without meeting the waiver requirement.
(4) At any time, consistent with any contract with a federal agency, a state or local law enforcement authority may withdraw state law enforcement authority from any individual federal officer by sending written notice to the federal agency and to the division.
(5) The authority of a federal officer under this section is limited to the jurisdiction of the authorizing state or local agency, and may be further limited by the state or local agency to enforcing specific statutes, codes, or ordinances.
Section 722. Section 53-15-101, which is renumbered from Section 63-94-101 is renumbered and amended to read:
CHAPTER 15. MCGRUFF SAFE HOUSE ACT
Part 1. General Provisions
[63-94-101]. 53-15-101. Title.
This chapter is known as the "McGruff Safe House Act."
Section 723. Section 53-15-102, which is renumbered from Section 63-94-102 is renumbered and amended to read:
[63-94-102
]. 53-15-102. Purpose.(1) The Legislature recognizes that children are often in dangerous situations that may be threatening or frightening to them and that there is a need for "safe homes" in our neighborhoods where a child may go for help.
(2) The Legislature also recognizes that along with the need for "safe homes" that children can recognize easily, there is needed a method by which these homes can be identified.
(3) The purpose of this chapter is to:
(a) provide and designate a recognizable symbol for those "safe homes" that children can readily identify; and
(b) establish a method by which local law enforcement agencies can identify and train volunteers who are willing to make their homes "safe homes".
Section 724. Section 53-15-201, which is renumbered from Section 63-94-103 is renumbered and amended to read:
Part 2. McGruff House Network Program
[63-94-103]. 53-15-201. Designation -- Administration.
(1) The National McGruff House Network Program is hereby designated as the officially recognized statewide "safe house" program for Utah.
(2) The program shall be administered through the Department of Public Safety by the Utah Council for Crime Prevention.
Section 725. Section 53-15-202, which is renumbered from Section 63-94-104 is renumbered and amended to read:
[63-94-104
]. 53-15-202. Program requirements.(1) The statewide program administrator shall:
(a) provide support and training upon request to local law enforcement agencies interested in implementing the program in their area;
(b) provide local programs with signs for display in approved "safe homes"; and
(c) maintain a register of all "safe homes" that includes, at a minimum, the address of the home and the names of all persons living in the home.
(2) The local program shall:
(a) recruit volunteer "safe homes" in neighborhoods with the help of local community groups;
(b) provide training and education to volunteers regarding the program and its use;
(c) provide for an application process for volunteers;
(d) conduct criminal history background checks on volunteers and members of their households;
(e) approve or disapprove applications for "safe homes";
(f) provide education through community programs for parents and children on the program and the proper use of "safe homes";
(g) provide approved "safe homes" with signs for display;
(h) provide procedures by which a "safe home" may be removed from the register; and
(i) provide for a method of renewal of the "safe home" designation in order to keep the registry current and provide for the periodic review of the "safe home", the volunteer, and all members of the household.
Section 726. Section 53A-1-402.5 is amended to read:
53A-1-402.5
. State board rules establishing basic ethical conduct standards -- Local school board policies.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules that establish basic ethical conduct standards for public education employees who provide education-related services outside of their regular employment to their current or prospective public school students.
(2) The rules shall provide that a local school board may adopt policies implementing the standards and addressing circumstances present in the district.
Section 727. Section 53A-1-408 is amended to read:
53A-1-408
. Appropriations reallocation.(1) Notwithstanding the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, the State Board of Education may reallocate between line items appropriations for the support of public education for the fiscal year beginning July 1, 2001 and ending June 30, 2002:
(a) as described in Items 231 through 239 in Chapter 334, Laws of Utah 2001; and
(b) as modified by:
(i) Chapter 5, Laws of Utah First Special Session 2001;
(ii) H.B. 1, 2002 General Session; and
(iii) H.B. 3, 2002 General Session.
(2) The total amount of money reallocated under Subsection (1) may not exceed the sum of the reductions made by H.B. 1, 2002 General Session, and H.B. 3, 2002 General Session.
Section 728. Section 53A-1-611 is amended to read:
53A-1-611
. Standards and assessment processes to measure student performance -- Basic skills competency test.(1) The Legislature recognizes the need for the State Board of Education to develop and implement standards and assessment processes to ensure that student progress is measured and that school boards and school personnel are accountable.
(2) (a) In addition to its responsibilities under Sections 53A-1-603 through 53A-1-605, the State Board of Education, through the state superintendent of public instruction, shall design a basic skills competency test to be administered in the tenth grade.
(b) A student must pass the basic skills competency test, in addition to the established requirements of the state and local board of education of the district in which the student attends school, in order to receive a basic high school diploma of graduation.
(c) The state board shall include in the test, at a minimum, components on English language arts and reading and mathematics.
(d) A student who fails to pass all components of the test may not receive a basic high school diploma but may receive a certificate of completion or alternative completion diploma under rules made by the State Board of Education in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(e) The state board shall make rules:
(i) to allow students who initially fail the test to retake all or part of the test; and
(ii) that take into account and are consistent with federal law relating to students with disabilities in the administration of the test.
(3) The state board shall implement the tenth grade basic skills competency test, no later than the beginning of the 2003-04 school year.
(4) The requirements of this section are to be complementary to the other achievement testing provisions of this part.
Section 729. Section 53A-1-612 is amended to read:
53A-1-612
. Basic Skills Education Stipend Program.(1) As used in this section:
(a) "Basic skills education" means individual or group instruction, including assessments, designed to develop the skills and knowledge necessary to pass the Utah Basic Skills Competency Test.
(b) "Basic skills provider" means:
(i) a school district;
(ii) a charter school;
(iii) an accredited public or private educational institution; or
(iv) other entity that meets board requirements pursuant to Subsection (12).
(c) "Program" means the Basic Skills Education Stipend Program.
(d) "Stipend recipient" means a student who receives a stipend under this section.
(e) "Utah Basic Skills Competency Test" or "UBSCT" means the basic skills competency test administered to students pursuant to Section 53A-1-611.
(2) The Basic Skills Education Stipend Program is created to provide students who have not passed the UBSCT supplemental instruction in the skills and knowledge necessary to pass the test.
(3) The State Board of Education shall administer the Basic Skills Education Stipend Program.
(4) (a) A student may receive a stipend for basic skills education if:
(i) the student's score on one more subtests is below the midpoint of the partial mastery range;
(ii) the student's parent or guardian is a Utah resident;
(iii) the student is enrolled full-time in a public school in the state; and
(iv) the student does not qualify for the Utah Alternative Assessment.
(b) A student who meets the criteria of Subsection (4)(a) may receive a stipend for basic skills education in the subject of each subtest failed. Depending upon the number of subtests failed, a student may receive one, two, or three stipends. A student may receive a stipend only once for each subtest failed.
(5) Stipend amounts shall be based on a student's subtest score as follows:
(a) $500, if the student's subtest score was below the midpoint of the partial mastery range but above the minimal mastery range;
(b) $1,000, if the student's subtest score was below the partial mastery range, but above or at the midpoint of the minimal mastery range; or
(c) $1,500, if the student's subtest score was below the midpoint of the minimal mastery range.
(6) A stipend recipient may apply for basic skills education from any basic skills provider.
(7) Each basic skill provider shall accept stipend recipients on a first come/first served basis.
(8) A stipend recipient shall give the following to the basic skills provider selected to provide basic skills education:
(a) a voucher in the amount of the stipend which the basic skills educator may present for payment by the board if the stipend recipient passes the subtest corresponding to the basic skills education provided by the basic skills provider; and
(b) an authorization signed by the stipend recipient's parent or guardian for the stipend recipient's school to release records of the stipend recipient to the basic skills provider, if the basic skills provider is not the school district or charter school in which the stipend recipient is enrolled.
(9) A basic skills provider who possesses a voucher shall receive payment from the board in the amount of the stipend, if, on a subsequent administration of the UBSCT, the stipend recipient passes the subtest corresponding to the basic skills education provided by the basic skills provider.
(10) (a) A basic skills provider may charge a stipend recipient an amount in addition to that paid by the board.
(b) The additional amount charged by a basic skills provider shall be:
(i) consistent with the restriction in Utah Constitution Article X, Section 2;
(ii) disclosed to the stipend recipient's parent or guardian when the stipend recipient applies for basic skills education; and
(iii) reported to the board before receiving payment from the board.
(c) A basic skills provider may not make any additional charge or refund of a charge contingent upon a stipend recipient's passing or failing a UBSCT subtest.
(11) (a) Stipends shall be awarded by the board subject to the availability of money appropriated by the Legislature for that purpose.
(b) The Legislature shall annually appropriate money to the board from the General Fund to make stipend payments.
(c) If monies are not available to pay for all stipends requested, the stipends shall be allocated according to rules adopted by the State Board of Education.
(12) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules:
(a) establishing qualifications for basic skills providers who are not school districts, high schools, or accredited public or private educational institutions;
(b) establishing procedures for the administration of the Basic Skills Education Stipend Program; and
(c) requiring the parent or guardian of a stipend recipient who selects a basic skills provider other than the school district or charter school in which the stipend recipient is enrolled to sign:
(i) an acknowledgment that the school district or charter school is released from further remediation responsibility for the stipend recipient; and
(ii) if the student has an IEP, an acknowledgment that offering a voucher to the basic skill provider has the same effect as a parental refusal to consent to services pursuant to Section 614(a)(1) of the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.
(13) School districts and charter schools shall provide each student who qualifies for a basic skills education stipend information about the Basic Skills Education Stipend Program, including:
(a) voucher applications; and
(b) how to access a list of approved public and private providers.
Section 730. Section 53A-1-706 is amended to read:
53A-1-706
. Purchases of educational technology.(1) (a) A school district or college of education shall comply with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, in purchasing technology, except as otherwise provided in Subsection (1)(b).
(b) A school district may purchase computers from, and contract for the repair or refurbishing of computers with, the Utah Correctional Industries without going through the bidding or competition procedures outlined in [Title 63, Chapter 56] Title 63G, Chapter 6, Part 4, Source Selections and Contract Formation.
(2) A school district or college of education may purchase technology through cooperative purchasing contracts administered by the state Division of Purchasing or through its own established purchasing program.
Section 731. Section 53A-1a-508 is amended to read:
53A-1a-508
. Content of a charter -- Modification of charter.(1) The major issues involving the operation of a charter school shall be considered in advance by the applicant for a charter school and written into the school's charter.
(2) The governing body of the charter school and the chartering entity shall sign the charter.
(3) The charter shall include:
(a) the age or grade levels to be served by the school;
(b) the projected maximum number of students to be enrolled in the school and the projected enrollment in each of the first three years of operations;
(c) the governance structure of the school;
(d) the financial plan for the school and the provisions which will be made for auditing the school under Subsection 53A-1a-507(4);
(e) the mission and education goals of the school, the curriculum offered, and the methods of assessing whether students are meeting educational goals, to include at a minimum participation in the Utah Performance Assessment System for Students under Chapter 1, Part 6, Achievement Tests;
(f) admission and dismissal procedures, including suspension procedures;
(g) procedures to review complaints of parents regarding the operation of the school;
(h) the opportunity for parental involvement at the school;
(i) how the school will provide adequate liability and other appropriate insurance for the school, its governing body, and its employees;
(j) the proposed school calendar, including the length of the school day and school year;
(k) whether any agreements have been entered into or plans developed with school districts regarding participation of charter school students in extracurricular activities within the school districts;
(l) the district within which the school will be located and the address of the school's physical facility, if known at the time the charter is signed;
(m) the qualifications to be required of the teachers, including the requirement of a criminal background check;
(n) in the case of an existing public school converting to charter status, alternative arrangements for current students who choose not to attend the charter school and for current teachers who choose not to teach at the school after its conversion to charter status;
(o) the school's intention to create a library;
(p) a description of school administrative and supervisory services;
(q) fiscal procedures to be used by the school; and
(r) the school's policies and procedures regarding:
(i) employee evaluation; and
(ii) employment of relatives.
(4) A charter may be modified by mutual agreement of the board and the governing body of the school.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules that establish the procedures and deadlines for approved charter schools to apply and qualify for expansion, including the establishment of satellite campuses.
Section 732. Section 53A-1a-509 is amended to read:
53A-1a-509
. Noncompliance -- Rulemaking.(1) (a) If a charter school is found to be out of compliance with the requirements of Section 53A-1a-507 or the school's charter, the chartering entity shall notify the school's governing board in writing that the school has a reasonable time to remedy the deficiency, except as otherwise provided in Subsection 53A-1a-510(3)(a).
(b) If the school does not remedy the deficiency within the established timeline, the chartering entity may:
(i) remove a school director or finance officer;
(ii) remove governing board members;
(iii) appoint an interim director or mentor to work with the charter school; or
(iv) terminate the school's charter.
(c) The costs of an interim director or mentor appointed pursuant to Subsection (1)(b) shall be paid from the funds of the charter school for which the interim director or mentor is working.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules:
(a) specifying the timeline for remedying deficiencies under Subsection (1)(a); and
(b) ensuring the compliance of a charter school with its approved charter.
Section 733. Section 53A-1a-510 is amended to read:
53A-1a-510
. Termination of a charter.(1) A chartering entity may terminate a school's charter for any of the following reasons:
(a) failure of the school to meet the requirements stated in the charter;
(b) failure to meet generally accepted standards of fiscal management;
(c) subject to Subsection (6), failure to make adequate yearly progress under the No Child Left Behind Act of 2001, 20 U.S.C. Sec. 6301 et seq.;
(d) violation of requirements under this part or another law; or
(e) other good cause shown.
(2) (a) The chartering entity shall notify the governing body of the school of the proposed termination in writing, state the grounds for the termination, and stipulate that the governing body may request an informal hearing before the chartering entity.
(b) The chartering entity shall conduct the hearing in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, within 30 days after receiving a written request under Subsection (2)(a).
(c) If the chartering entity, by majority vote, approves a motion to terminate a charter school, the governing body of the charter school may appeal the decision to the State Board of Education.
(d) (i) The State Board of Education shall hear an appeal of a termination made pursuant to Subsection (2)(c).
(ii) The State Board of Education's action is final action subject to judicial review.
(3) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules that require a charter school to report any threats to the health, safety, or welfare of its students to the State Charter School Board in a timely manner.
(b) The rules under Subsection (3)(a) shall also require the charter school report to include what steps the charter school has taken to remedy the threat.
(4) The chartering entity may terminate a charter immediately if good cause has been shown or if the health, safety, or welfare of the students at the school is threatened.
(5) If a charter is terminated during a school year:
(a) the school district in which the school is located may assume operation of the school; or
(b) a private management company may be hired to operate the school.
(6) (a) If a charter is terminated, a student who attended the school may apply to and shall be enrolled in another public school under the enrollment provisions of Title 53A, Chapter 2, Part 2, District of Residency, subject to space availability.
(b) Normal application deadlines shall be disregarded under Subsection (6)(a).
(7) A chartering entity may terminate a charter pursuant to Subsection (1)(c) under the same circumstances that local educational agencies are required to implement alternative governance arrangements under 20 U.S.C. Sec. 6316.
Section 734. Section 53A-1a-511 is amended to read:
53A-1a-511
. Waivers from state board rules -- Application of statutes and rules to charter schools.(1) A charter school shall operate in accordance with its charter and is subject to Title 53A, State System of Public Education, and other state laws applicable to public schools, except as otherwise provided in this part.
(2) (a) A charter school or any other public school or school district may apply to the State Board of Education for a waiver of any state board rule that inhibits or hinders the school or the school district from accomplishing its mission or educational goals set out in its strategic plan or charter.
(b) The state board may grant the waiver, unless:
(i) the waiver would cause the school district or the school to be in violation of state or federal law; or
(ii) the waiver would threaten the health, safety, or welfare of students in the district or at the school.
(c) If the State Board of Education denies the waiver, the reason for the denial shall be provided in writing to the waiver applicant.
(3) (a) Except as provided in Subsection (3)(b), State Board of Education rules governing the following do not apply to a charter school:
(i) school libraries;
(ii) required school administrative and supervisory services; and
(iii) required expenditures for instructional supplies.
(b) A charter school shall comply with rules implementing statutes that prescribe how state appropriations may be spent.
(4) The following provisions of Title 53A, State System of Public Education, and rules adopted under those provisions, do not apply to a charter school:
(a) Sections 53A-1a-108 and 53A-1a-108.5, requiring the establishment of a school community council and school improvement plan;
(b) Sections 53A-3-413 and 53A-3-414, pertaining to the use of school buildings as civic centers;
(c) Section 53A-3-420, requiring the use of activity disclosure statements;
(d) Section 53A-12-207, requiring notification of intent to dispose of textbooks;
(e) Section 53A-13-107, requiring annual presentations on adoption;
(f) Chapter 19, Part 1, Fiscal Procedures, pertaining to fiscal procedures of school districts and local school boards; and
(g) Section 53A-14-107, requiring an independent evaluation of instructional materials.
(5) For the purposes of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, a charter school shall be considered a local public procurement unit.
(6) Each charter school shall be subject to:
(a) Title 52, Chapter 4, Open and Public Meetings Act; and
(b) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(7) (a) The State Charter School Board shall, in concert with the charter schools, study existing state law and administrative rules for the purpose of determining from which laws and rules charter schools should be exempt.
(b) (i) The State Charter School Board shall present recommendations for exemption to the State Board of Education for consideration.
(ii) The State Board of Education shall consider the recommendations of the State Charter School Board and respond within 60 days.
Section 735. Section 53A-1a-513 is amended to read:
53A-1a-513
. Funding for charter schools.(1) (a) Charter schools shall receive funding as described in this section, except Subsections (2) through (7) do not apply to charter schools described in Subsection (1)(b).
(b) Charter schools authorized by local school boards that are converted from district schools or operate in district facilities without paying reasonable rent shall receive funding as prescribed in Section 53A-1a-515.
(2) (a) Except as provided in Subsection (2)(b), a charter school shall receive state funds, as applicable, on the same basis as a school district receives funds.
(b) In distributing funds under Title 53A, Chapter 17a, Minimum School Program Act, to charter schools, charter school pupils shall be weighted, where applicable, as follows:
(i) .55 for kindergarten pupils;
(ii) .9 for pupils in grades 1-6;
(iii) .99 for pupils in grades 7-8; and
(iv) 1.2 for pupils in grades 9-12.
(c) The State Board of Education shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer Subsection (2)(b), including hold harmless provisions to maintain a charter elementary school's funding level for a period of two years after the effective date of the distribution formula.
(d) Subsection (2)(b) does not apply to funds appropriated to charter schools to replace local property tax revenues.
(3) The State Board of Education shall adopt rules to provide for the distribution of monies to charter schools under this section.
(4) (a) The Legislature shall provide an appropriation for charter schools for each of their students to replace some of the local property tax revenues that are not available to charter schools. The amount of money provided for each charter school student shall be determined by:
(i) calculating the sum of:
(A) school districts' operations and maintenance revenues derived from local property taxes, except revenues from imposing a minimum basic tax rate pursuant to Section 53A-17a-135;
(B) school districts' capital projects revenues derived from local property taxes; and
(C) school districts' expenditures for interest on debt; and
(ii) dividing the sum by the total average daily membership of the districts' schools.
(b) Of the monies provided to a charter school under Subsection (4)(a), 10% shall be expended for funding school facilities only.
(c) To qualify for money under Subsection (4)(a), a new charter school shall, by September 30 of the school year prior to the school year it intends to begin operations:
(i) obtain approval of its application for a charter from:
(A) the State Board of Education, pursuant to Section 53A-1a-505; or
(B) a local school board, pursuant to Section 53A-1a-515; and
(ii) submit to the chartering entity an estimate of the charter school's first year enrollment.
(d) Subsection (4)(c) does not apply to charter schools beginning operations in the 2005-06 school year.
(e) By December 1, the State Charter School Board shall submit to the Governor's Office of Planning and Budget and the Office of the Legislative Fiscal Analyst an estimate of total charter school enrollment in the state for the following school year.
(5) Charter schools are eligible to receive federal funds if they meet all applicable federal requirements and comply with relevant federal regulations.
(6) The State Board of Education shall distribute funds for charter school students directly to the charter school.
(7) (a) Notwithstanding Subsection (2), a charter school is not eligible to receive state transportation funding.
(b) The board shall also adopt rules relating to the transportation of students to and from charter schools, taking into account Sections 53A-2-210 and 53A-17a-127.
(c) The governing body of the charter school may provide transportation through an agreement or contract with the local school board, a private provider, or with parents.
(8) (a) (i) The state superintendent of public instruction may allocate grants for both start-up and ongoing costs to eligible charter school applicants from monies appropriated for the implementation of this part.
(ii) Applications for the grants shall be filed on a form determined by the state superintendent and in conjunction with the application for a charter.
(iii) The amount of a grant may vary based upon the size, scope, and special circumstances of the charter school.
(iv) The governing board of the charter school shall use the grant to meet the expenses of the school as established in the school's charter.
(b) The State Board of Education shall coordinate the distribution of federal monies appropriated to help fund costs for establishing and maintaining charter schools within the state.
(9) (a) A charter school may receive, hold, manage and use any devise, bequest, grant, endowment, gift, or donation of any property made to the school for any of the purposes of this part.
(b) It is unlawful for any person affiliated with a charter school to demand or request any gift, donation, or contribution from a parent, teacher, employee, or other person affiliated with the charter school as a condition for employment or enrollment at the school or continued attendance at the school.
(10) The State Office of Education shall use up to $1,044,000 of funding provided for new growth to fund additional growth needs in charter schools in fiscal year 2005.
Section 736. Section 53A-1a-601 is amended to read:
53A-1a-601
. Job enhancements for mathematics, science, technology, and special education training.(1) As used in this part, "special education teacher" includes occupational therapist.
(2) The Public Education Job Enhancement Program is established to attract, train, and retain highly qualified:
(a) secondary teachers with expertise in mathematics, physics, chemistry, physical science, learning technology, or information technology;
(b) special education teachers; and
(c) teachers in grades four through six with mathematics endorsements.
(3) The program shall provide for the following:
(a) application by a school district superintendent or the principal of a school on behalf of a qualified teacher;
(b) an award of up to $20,000 or a scholarship to cover the tuition costs for a master's degree, an endorsement, or graduate education in the areas identified in Subsection (2) to be given to selected public school teachers on a competitive basis:
(i) whose applications are approved under Subsection 53A-1a-602(4); and
(ii) who teach in the state's public education system for four years in the areas identified in Subsection (2);
(c) (i) as to the cash awards under Subsection (3)(b), payment of the award in two installments, with an initial payment of up to $10,000 at the beginning of the term and up to $10,000 at the conclusion of the term;
(ii) repayment of a portion of the initial payment by the teacher if the teacher fails to complete two years of the four-year teaching term in the areas identified in Subsection (2) as provided by rule of the State Board of Education in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, unless waived for good cause by the Job Enhancement Committee created in Section 53A-1a-602; and
(iii) nonpayment of the second installment if the teacher fails to complete the four-year teaching term; and
(d) (i) as to the scholarships awarded under Subsection (3)(b), provision for the providing institution to certify adequate performance in obtaining the master's degree, endorsement, or graduate education in order for the teacher to maintain the scholarship; and
(ii) repayment by the teacher of a prorated portion of the scholarship, if the teacher fails to complete the authorized classes or program or to teach in the state system of public education in the areas identified in Subsection (2) for four years after obtaining the master's degree, the endorsement, or graduate education.
(4) An individual teaching in the public schools under a letter of authorization may participate in the cash award program if:
(a) the individual has taught under the letter of authorization for at least one year in the areas referred to in Subsection (2); and
(b) the application made under Subsection (3)(a) is based in large part upon the individual receiving a superior evaluation as a classroom teacher.
(5) (a) The program may provide for the expenditure of up to $1,000,000 of available monies, if at least an equal amount of matching monies become available, to provide professional development training to superintendents, administrators, and principals in the effective use of technology in public schools.
(b) An award granted under this Subsection (5) shall be made in accordance with criteria developed and adopted by the Job Enhancement Committee created in Section 53A-1a-602.
(c) An amount up to $120,000 of the $1,000,000 authorized in Subsection (5)(a) may be expended, regardless of the matching monies being available.
Section 737. Section 53A-1a-602 is amended to read:
53A-1a-602
. Job Enhancement Committee -- Composition -- Duties -- Appropriation.(1) There is created a Job Enhancement Committee to implement and administer the Public Education Job Enhancement Program established in Section 53A-1a-601.
(2) (a) The committee shall consist of:
(i) two members of the State Board of Education selected by the board;
(ii) two members of the State Board of Regents selected by the board;
(iii) six members of the general public who have business experience in mathematics, physics, chemistry, physical science, learning technology, or information technology selected by the governor;
(iv) a master high school teacher, who has teaching experience in mathematics, physics, chemistry, physical science, learning technology, or information technology, selected by the superintendent of public instruction;
(v) a master special education teacher, selected by the superintendent of public instruction; and
(vi) a master teacher in grades four through six with a mathematics endorsement, selected by the superintendent of public instruction.
(b) Committee members shall receive no compensation or benefits for their service on the committee, but may receive per diem and expenses incurred in the performance of their duties at rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(3) (a) The committee shall receive and review applications submitted for participation in the Public Education Job Enhancement Program established under Section 53A-1a-601.
(b) In reviewing applications, the committee shall focus on:
(i) the prioritized critical areas of need identified under Subsection (5)(a); and
(ii) the awards being made on a competitive basis.
(c) If the committee approves an application received under Subsection (3)(a), it shall contract directly with the teacher applicant to receive the award or the scholarship for a master's degree, an endorsement, or graduate education, subject to Section 53A-1a-601.
(d) The State Board of Education, through the superintendent of public instruction, shall provide staff support for the committee and adequate and reliable data on the state's supply of and demand for qualified:
(i) secondary teachers with expertise in mathematics, physics, chemistry, physical science, learning technologies, or information technology;
(ii) special education teachers; and
(iii) teachers in grades four through six with mathematics endorsements.
(4) The committee may apply for grants and matching monies to enhance funding available for the program established in Section 53A-1a-601.
(5) The committee shall make a rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing policies and procedures for:
(a) making the awards and offering the scholarships in accordance with prioritized critical areas of need as determined by the committee;
(b) timelines for the submission and approval of applications under Subsection (3); and
(c) the distribution of the awards and scholarships to successful applicants based on available monies provided by legislative appropriation.
(6) Subject to future budget constraints, the Legislature shall make an annual appropriation to the State Board of Education to fund the Public Education Job Enhancement Program established under Section 53A-1a-601.
Section 738. Section 53A-1a-707 is amended to read:
53A-1a-707
. Board to make rules.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules consistent with this part establishing:
(1) the eligibility of students to participate in the scholarship program; and
(2) the application process for the scholarship program.
Section 739. Section 53A-1a-808 is amended to read:
53A-1a-808
. Board to make rules.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules consistent with this part:
(a) establishing the application process for the scholarship program, including procedures to allow a parent to apply for a scholarship online;
(b) establishing how the income of a scholarship student's parents shall be determined and verified; and
(c) implementing Section 53A-1a-807.
(2) By May 15, 2007, the board shall adopt rules establishing:
(a) the application process for private schools and scholarship students; and
(b) how the income of a scholarship student's parents shall be determined.
Section 740. Section 53A-1a-902 is amended to read:
53A-1a-902
. Voluntary extended-day kindergarten program.(1) If funds are appropriated for this purpose, the State Board of Education shall allocate available funds, consistent with Section 53A-1a-903, to charter schools and school districts that apply to offer extended-day kindergarten.
(2) A school district shall coordinate program application, funding, administration, and reporting for its schools that participate in the program.
(3) A charter school or school district:
(a) may not require a student to participate in extended-day kindergarten;
(b) shall continue to offer part-day kindergarten for students not participating in the program; and
(c) shall continue to honor the provisions of any preexisting contractual agreement related to other early intervention programs offered at the school site, through the remaining term of the contract.
(4) A charter school or school district that receives funds under this part shall:
(a) annually conduct a kindergarten readiness assessment for incoming kindergarten students prior to the beginning of the school year;
(b) ensure that:
(i) a majority of students enrolled in an extended-day kindergarten class under this part are students who have the greatest need for additional instruction, as determined by the kindergarten readiness assessment; and
(ii) an extended-day kindergarten class does not have more enrolled students than other kindergarten classes in the school;
(c) utilize allocated funds to establish extended-day kindergarten in the schools with greatest need as measured by the percentage of students eligible for free lunch; and
(d) annually report to the State Board of Education regarding:
(i) the number of students served;
(ii) the specific results achieved by the program, including any standardized testing or district-directed assessment;
(iii) challenges encountered in administering the program and suggestions for improvement; and
(iv) specific accountability for and tracking of the voluntary extended-day kindergarten program dollars each year.
(5) Until 2012, the superintendent of public instruction shall annually report to the Education Interim Committee on the program, including a summary of information reported under Subsection (4)(d).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and consistent with this part, the State Board of Education shall make rules establishing application and reporting procedures necessary to administer this part.
Section 741. Section 53A-2-123 is amended to read:
53A-2-123
. Notice before preparing or amending a long-range plan or acquiring certain property.(1) As used in this section:
(a) "Affected entity" means each county, municipality, local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, interlocal cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, and specified public utility:
(i) whose services or facilities are likely to require expansion or significant modification because of an intended use of land; or
(ii) that has filed with the school district a copy of the general or long-range plan of the county, municipality, local district, special service district, school district, interlocal cooperation entity, or specified public utility.
(b) "Specified public utility" means an electrical corporation, gas corporation, or telephone corporation, as those terms are defined in Section 54-2-1.
(2) (a) If a school district located in a county of the first or second class prepares a long-range plan regarding its facilities proposed for the future or amends an already existing long-range plan, the school district shall, before preparing a long-range plan or amendments to an existing long-range plan, provide written notice, as provided in this section, of its intent to prepare a long-range plan or to amend an existing long-range plan.
(b) Each notice under Subsection (2)(a) shall:
(i) indicate that the school district intends to prepare a long-range plan or to amend a long-range plan, as the case may be;
(ii) describe or provide a map of the geographic area that will be affected by the long-range plan or amendments to a long-range plan;
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries is located the land on which the proposed long-range plan or amendments to a long-range plan are expected to indicate that the proposed facilities will be located;
(B) each affected entity;
(C) the Automated Geographic Reference Center created in Section 63F-1-506;
(D) each association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or municipality described in Subsection (2)(b)(iii)(A) is a member; and
(E) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202;
(iv) with respect to the notice to counties and municipalities described in Subsection (2)(b)(iii)(A) and affected entities, invite them to provide information for the school district to consider in the process of preparing, adopting, and implementing the long-range plan or amendments to a long-range plan concerning:
(A) impacts that the use of land proposed in the proposed long-range plan or amendments to a long-range plan may have on the county, municipality, or affected entity; and
(B) uses of land that the county, municipality, or affected entity is planning or considering that may conflict with the proposed long-range plan or amendments to a long-range plan; and
(v) include the address of an Internet website, if the school district has one, and the name and telephone number of a person where more information can be obtained concerning the school district's proposed long-range plan or amendments to a long-range plan.
(3) (a) Except as provided in Subsection (3)(d), each school district intending to acquire real property in a county of the first or second class for the purpose of expanding the district's infrastructure or other facilities shall provide written notice, as provided in this Subsection (3), of its intent to acquire the property if the intended use of the property is contrary to:
(i) the anticipated use of the property under the county or municipality's general plan; or
(ii) the property's current zoning designation.
(b) Each notice under Subsection (3)(a) shall:
(i) indicate that the school district intends to acquire real property;
(ii) identify the real property; and
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries the property is located; and
(B) each affected entity.
(c) A notice under this Subsection (3) is a protected record as provided in Subsection [63-2-304] 63G-2-305(7).
(d) (i) The notice requirement of Subsection (3)(a) does not apply if the school district previously provided notice under Subsection (2) identifying the general location within the municipality or unincorporated part of the county where the property to be acquired is located.
(ii) If a school district is not required to comply with the notice requirement of Subsection (3)(a) because of application of Subsection (3)(d)(i), the school district shall provide the notice specified in Subsection (3)(a) as soon as practicable after its acquisition of the real property.
Section 742. Section 53A-2-206 is amended to read:
53A-2-206
. Interstate compact students -- Inclusion in attendance count -- Funding for foreign exchange students -- Annual report -- Requirements for exchange student agencies.(1) A school district or charter school may include the following students in the district's or school's membership and attendance count for the purpose of apportionment of state monies:
(a) a student enrolled under an interstate compact, established between the State Board of Education and the state education authority of another state, under which a student from one compact state would be permitted to enroll in a public school in the other compact state on the same basis as a resident student of the receiving state; or
(b) a student receiving services under the Compact on Placement of Children.
(2) (a) A school district or charter school may include foreign exchange students in the district's or school's membership and attendance count for the purpose of apportionment of state monies, except as provided in Subsections (2)(b) through (e).
(b) (i) Notwithstanding Section 53A-17a-106, foreign exchange students may not be included in average daily membership for the purpose of determining the number of weighted pupil units in the grades 1-12 basic program.
(ii) Subject to the limitation in Subsection (2)(c), the number of weighted pupil units in the grades 1-12 basic program attributed to foreign exchange students shall be equal to the number of foreign exchange students who were:
(A) enrolled in a school district or charter school on October 1 of the previous fiscal year; and
(B) sponsored by an agency approved by the district's local school board or charter school's governing board.
(c) (i) The total number of foreign exchange students in the state that may be counted for the purpose of apportioning state monies under Subsection (2)(b) shall be the lesser of:
(A) the number of foreign exchange students enrolled in public schools in the state on October 1 of the previous fiscal year; or
(B) 328 foreign exchange students.
(ii) The State Board of Education shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer the cap on the number of foreign exchange students that may be counted for the purpose of apportioning state monies under Subsection (2)(b).
(d) Notwithstanding Sections 53A-17a-133 and 53A-17a-134, weighted pupil units in the grades 1-12 basic program for foreign exchange students, as determined by Subsections (2)(b) and (c), may not be included for the purposes of determining a school district's state guarantee money under the voted or board leeway programs.
(e) Notwithstanding Section 53A-17a-125, foreign exchange students may not be included in enrollment when calculating student growth for the purpose of adjusting the annual appropriation for retirement and Social Security.
(3) A school district or charter school may:
(a) enroll foreign exchange students that do not qualify for state monies; and
(b) pay for the costs of those students with other funds available to the school district or charter school.
(4) Due to the benefits to all students of having the opportunity to become familiar with individuals from diverse backgrounds and cultures, school districts are encouraged to enroll foreign exchange students, as provided in Subsection (3), particularly in schools with declining or stable enrollments where the incremental cost of enrolling the foreign exchange student may be minimal.
(5) The board shall make an annual report to the Legislature on the number of exchange students and the number of interstate compact students sent to or received from public schools outside the state.
(6) (a) A local school board or charter school governing board shall require each approved exchange student agency to provide it with a sworn affidavit of compliance prior to the beginning of each school year.
(b) The affidavit shall include the following assurances:
(i) that the agency has complied with all applicable policies of the board;
(ii) that a household study, including a background check of all adult residents, has been made of each household where an exchange student is to reside, and that the study was of sufficient scope to provide reasonable assurance that the exchange student will receive proper care and supervision in a safe environment;
(iii) that host parents have received training appropriate to their positions, including information about enhanced criminal penalties under Subsection 76-5-406(10) for persons who are in a position of special trust;
(iv) that a representative of the exchange student agency shall visit each student's place of residence at least once each month during the student's stay in Utah;
(v) that the agency will cooperate with school and other public authorities to ensure that no exchange student becomes an unreasonable burden upon the public schools or other public agencies;
(vi) that each exchange student will be given in the exchange student's native language names and telephone numbers of agency representatives and others who could be called at any time if a serious problem occurs; and
(vii) that alternate placements are readily available so that no student is required to remain in a household if conditions appear to exist which unreasonably endanger the student's welfare.
(7) (a) A local school board or charter school governing board shall provide each approved exchange student agency with a list of names and telephone numbers of individuals not associated with the agency who could be called by an exchange student in the event of a serious problem.
(b) The agency shall make a copy of the list available to each of its exchange students in the exchange student's native language.
Section 743. Section 53A-3-303 is amended to read:
53A-3-303
. Duties of business administrator.Subject to the direction of the district superintendent of schools, the district's business administrator shall:
(1) attend all meetings of the board, keep an accurate record of its proceedings, and have custody of the seal and records;
(2) be custodian of all district funds, be responsible and accountable for all money received and disbursed, and keep accurate records of all revenues received and their sources;
(3) countersign with the president of the board all warrants and claims against the district as well as other legal documents approved by the board;
(4) prepare and submit to the board each month a written report of the district's receipts and expenditures;
(5) use uniform budgeting, accounting, and auditing procedures and forms approved by the State Board of Education, which shall be in accordance with generally accepted accounting principles or auditing standards and [Title 63, Chapter 38] Title 63J, Chapter 1, Utah Budgetary Procedures Act;
(6) prepare and submit to the board a detailed annual statement for the period ending June 30, of the revenue and expenditures, including beginning and ending fund balances;
(7) assist the superintendent in the preparation and submission of budget documents and statistical and fiscal reports required by law or the State Board of Education;
(8) insure that adequate internal controls are in place to safeguard the district's funds; and
(9) perform other duties as the superintendent may require.
Section 744. Section 53A-3-402.11 is amended to read:
53A-3-402.11
. Reading Performance Improvement Scholarship Program.(1) There is established a Reading Performance Improvement Scholarship Program to assist selected elementary teachers in obtaining a reading endorsement so that they may help improve the reading performance of students in their classes.
(2) The State Board of Education shall award scholarships of up to $500 to each recipient under the program.
(3) The board shall give weighted consideration to scholarship applicants who:
(a) teach in grades kindergarten through three;
(b) are designated by their schools as, or are seeking the designation of, reading specialist; and
(c) teach in a rural area of the state.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall provide by rule for:
(a) the application procedure for the scholarship; and
(b) what constitutes a reading specialist at the elementary school level.
Section 745. Section 53A-3-424 is amended to read:
53A-3-424
. Rulemaking -- Reporting.The State Office of Education may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding compliance standards and reporting requirements for local school boards with respect to the policy required by Section 53A-3-422.
Section 746. Section 53A-3-702 is amended to read:
53A-3-702
. Professional development pilot program.(1) A pilot program is created to evaluate the effects on student academic achievement of reducing the minimum school term established by the State Board of Education by up to 22 hours for the purpose of conducting professional development for instructional staff.
(2) To participate in the pilot program, a local school board shall submit a plan to a community council for approval before submission to the State Board of Education that includes the following information:
(a) the schools intending to participate in the pilot program;
(b) the revised school schedule;
(c) a description of the professional development activities;
(d) the expected outcomes from the professional development, including measurable academic achievement goals; and
(e) the method of evaluating the effectiveness of the professional development.
(3) The State Board of Education shall determine the maximum number of school districts and schools that may participate in the pilot program.
(4) The State Board of Education shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the implementation of the pilot program.
(5) The State Board of Education shall submit to the Education Interim Committee:
(a) preliminary findings from the pilot program by October 1, 2006; and
(b) a final report and recommendations for expansion of the program by October 1, 2007.
Section 747. Section 53A-6-103 is amended to read:
53A-6-103
. Definitions.As used in this chapter:
(1) "Accredited institution" means an institution meeting the requirements of Section 53A-6-107.
(2) (a) "Alternative preparation program" means preparation for licensure in accordance with applicable law and rule through other than an approved preparation program.
(b) "Alternative preparation program" includes the competency-based licensing program described in Section 53A-6-104.5.
(3) "Ancillary requirement" means a requirement established by law or rule in addition to completion of an approved preparation program or alternative education program or establishment of eligibility under the NASDTEC Interstate Contract, and may include any of the following:
(a) minimum grade point average;
(b) standardized testing or assessment;
(c) mentoring;
(d) recency of professional preparation or experience;
(e) graduation from an accredited institution; or
(f) evidence relating to moral, ethical, physical, or mental fitness.
(4) "Approved preparation program" means a program for preparation of educational personnel offered through an accredited institution in Utah or in a state which is a party to a contract with Utah under the NASDTEC Interstate Contract and which, at the time the program was completed by the applicant:
(a) was approved by the governmental agency responsible for licensure of educators in the state in which the program was provided;
(b) satisfied requirements for licensure in the state in which the program was provided;
(c) required completion of a baccalaureate; and
(d) included a supervised field experience.
(5) "Board" means the Utah State Board of Education.
(6) "Certificate" means a license issued by a governmental jurisdiction outside the state.
(7) "Core academic subjects" means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.
(8) "Educator" means:
(a) a person who holds a license;
(b) a teacher, counselor, administrator, librarian, or other person required, under rules of the board, to hold a license; or
(c) a person who is the subject of an allegation which has been received by the board or UPPAC and was, at the time noted in the allegation, a license holder or a person employed in a position requiring licensure.
(9) (a) "Endorsement" means a stipulation appended to a license setting forth the areas of practice to which the license applies.
(b) An endorsement shall be issued upon completion of a competency-based teacher preparation program from a regionally accredited university that meets state content standards.
(10) "License" means an authorization issued by the board which permits the holder to serve in a professional capacity in the public schools. The five levels of licensure are:
(a) "letter of authorization," which is:
(i) a temporary license issued to a person who has not completed requirements for a competency-based, or level 1, 2, or 3 license, such as:
(A) a student teacher; or
(B) a person participating in an alternative preparation program; or
(ii) a license issued, pursuant to board rules, to a person who has achieved eminence, or has outstanding qualifications, in a field taught in public schools;
(b) "competency-based license" which is issued to a teacher based on the teacher's demonstrated teaching skills and abilities;
(c) "level 1 license," which is a license issued upon completion of:
(i) a competency-based teacher preparation program from a regionally accredited university; or
(ii) an approved preparation program or an alternative preparation program, or pursuant to an agreement under the NASDTEC Interstate Contract, to candidates who have also met all ancillary requirements established by law or rule;
(d) "level 2 license," which is a license issued after satisfaction of all requirements for a level 1 license as well as any additional requirements established by law or rule relating to professional preparation or experience; and
(e) "level 3 license," which is a license issued to an educator who holds a current Utah level 2 license and has also received, in the educator's field of practice, National Board certification or a doctorate from an accredited institution.
(11) "NASDTEC" means the National Association of State Directors of Teacher Education and Certification.
(12) "NASDTEC Interstate Contract" means the contract implementing Title 53A, Chapter 6, Part 2, Compact for Interstate Qualification of Educational Personnel, which is administered through NASDTEC.
(13) "National Board certification" means a current certificate issued by the National Board for Professional Teaching Standards.
(14) "Necessarily existent small school" means a school classified as a necessarily existent small school in accordance with Section 53A-17a-109.
(15) "Office" means the Utah State Office of Education.
(16) "Rule" means an administrative rule adopted by the board under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(17) "School" means a public or private entity which provides educational services to a minor child.
(18) "Small school district" means a school district with an enrollment of less than 5,000 students.
(19) "UPPAC" means the Utah Professional Practices Advisory Commission.
Section 748. Section 53A-6-105 is amended to read:
53A-6-105
. Licensing fees -- Credit to subfund -- Payment of expenses.(1) The board shall levy a fee for each new, renewed, or reinstated license or endorsement in accordance with Section [63-38-3.2] 63J-1-303.
(2) Fee payments are credited to the Professional Practices Restricted Subfund in the Uniform School Fund.
(3) The board shall pay the expenses of issuing licenses and of UPPAC operations, and the costs of collecting license fees from the restricted subfund.
(4) The office shall submit an annual report to the Legislature's Public Education Appropriations Subcommittee informing the Legislature about the fund, fees assessed and collected, and expenditures from the fund.
Section 749. Section 53A-6-112 is amended to read:
53A-6-112
. Grants for licensed teachers.(1) As used in this section:
(a) "Licensed teacher" means a teacher who holds:
(i) a level 1, level 2, or level 3 license; and
(ii) the endorsements required by board rule for the teacher's assignments.
(b) "National Board certification" means a current certificate issued by the National Board for Professional Teaching Standards.
(2) A grant program is created to minimize out-of-pocket expenses of licensed teachers to:
(a) obtain National Board certification; or
(b) take tests to meet federal highly qualified teacher standards as defined in 20 U.S.C. Sec. 7801.
(3) The State Board of Education shall give grants to school districts and charter schools for the purpose stated in Subsection (2) from monies appropriated by the Legislature for that purpose.
(4) To receive a grant, a school district or charter school shall provide matching funds to minimize out-of-pocket expenses of licensed teachers to obtain National Board certification or to take tests to meet federal highly qualified teacher standards in an amount equal to the grant.
(5) Grant monies and matching funds shall be used to pay for costs of licensed teachers that are directly related to:
(a) obtaining National Board certification; or
(b) taking tests that, if the licensed teacher passes, the teacher meets federal highly qualified teacher standards.
(6) The State Board of Education shall distribute money appropriated by the Legislature to school districts and charter schools to pay for costs of licensed teachers directly related to obtaining National Board certification or taking tests to meet federal highly qualified teacher standards in accordance with:
(a) Subsection (4); and
(b) a formula adopted by the board, after consultation with school districts and charter schools, that allocates the funding in a fair and equitable manner.
(7) The State Board of Education shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer this section.
Section 750. Section 53A-6-503 is amended to read:
53A-6-503
. Reimbursement of legal fees and costs to educators.(1) As used in this section:
(a) "Action" means any action, except those referred to in Section [63-30a-2] 52-6-201, brought against an educator by an individual or entity other than:
(i) the entity who licenses the educator; and
(ii) the school district that employs the educator or employed the educator at the time of the alleged act or omission.
(b) "Educator" means an individual who holds or is required to hold a license under this chapter and is employed by a school district located within the state.
(c) "School district" includes the Schools for the Deaf and the Blind and the state's applied technology centers.
(2) Except as otherwise provided in Section [63-30a-2] 52-6-201, an educator is entitled to recover reasonable attorneys' fees and costs incurred in his defense against an individual or entity who initiates an action against the educator if:
(a) the action is brought for any act or omission of the educator during the performance of the educator's duties within the scope of the educator's employment; and
(b) it is dismissed or results in findings favorable to the educator.
(3) An educator who recovers under this section is also entitled to recover reasonable attorneys' fees and costs necessarily incurred by the educator in recovering the attorneys' fees and costs allowed under Subsection (2).
Section 751. Section 53A-11-102.5 is amended to read:
53A-11-102.5
. Dual enrollment.(1) A person having control of a minor under this part who is enrolled in a regularly established private school or a home school may also enroll the minor in a public school for dual enrollment purposes.
(2) The minor may participate in any academic activity in the public school available to students in the minor's grade or age group, subject to compliance with the same rules and requirements that apply to a full-time student's participation in the activity.
(3) Except as otherwise provided in Sections 53A-11-101.5 and 53A-11-102, a student enrolled in a public school may also be enrolled in a private school or a home school for dual enrollment purposes.
(4) A student enrolled in a dual enrollment program is considered a student of the district in which the public school of attendance is located for purposes of state funding to the extent of the student's participation in the public school programs.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules for purposes of dual enrollment to govern and regulate the transferability of credits toward graduation that are earned in a private or home school.
(6) The State Board of Education shall determine the policies and procedures necessary to permit students enrolled under Subsection (1) to participate in public school extracurricular activities.
Section 752. Section 53A-12-103 is amended to read:
53A-12-103
. Waiver of fees.(1) (a) A local school board shall require, as part of an authorization granted under Section 53A-12-102, that adequate waivers or other provisions are available to ensure that no student is denied the opportunity to participate because of an inability to pay the required fee, deposit, or charge.
(b) (i) If, however, a student must repeat a course or requires remediation to advance or graduate and a fee is associated with the course or the remediation program, it is presumed that the student will pay the fee.
(ii) If the student or the student's parent or guardian is financially unable to pay the fee, the board shall provide for alternatives to waiving the fee, which may include installment payments and school or community service or work projects for the student.
(iii) In cases of extreme financial hardship or where the student has suffered a long-term illness, or death in the family, or other major emergency and where installment payments and the imposition of a service or work requirement would not be reasonable, the student may receive a partial or full waiver of the fee required under Subsection (1)(b)(i).
(iv) The waiver provisions in Subsections (2) and (3) apply to all other fees, deposits, and charges made in the secondary schools.
(2) (a) The board shall require each school in the district that charges a fee under this chapter to provide a variety of alternatives for satisfying the fee requirement to those who qualify for fee waivers, in addition to the outright waiver of the fee.
(b) The board shall develop and provide a list of alternatives for the schools, including such options as allowing the student to provide:
(i) tutorial assistance to other students;
(ii) assistance before or after school to teachers and other school personnel on school related matters; and
(iii) general community or home service.
(c) Each school may add to the list of alternatives provided by the board, subject to approval by the board.
(3) A local school board may establish policies providing for partial fee waivers or other alternatives for those students who, because of extenuating circumstances, are not in a financial position to pay the entire fee.
(4) With regard to children who are in the custody of the Division of Child and Family Services who are also eligible under Title IV-E of the federal Social Security Act, local school boards shall require fee waivers or alternatives in accordance with Subsections (1) through (3).
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules:
(a) requiring a parent or guardian of a student applying for a fee waiver to provide documentation and certification to the school verifying:
(i) the student's eligibility to receive the waiver; and
(ii) that the alternatives for satisfying the fee requirements under Subsection (2) have been complied with to the fullest extent reasonably possible according to the individual circumstances of both the fee waiver applicant and the school; and
(b) specifying the acceptable forms of documentation for the requirement under Subsection (5)(a), which shall include verification based on income tax returns or current pay stubs.
(6) Notwithstanding the requirements under Subsection (5), a school is not required to keep documentation on file after the verification is completed.
Section 753. Section 53A-13-101.6 is amended to read:
53A-13-101.6
. Instruction on the flag of the United States of America.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall provide by rule for a program of instruction within the public schools relating to the flag of the United States.
(2) The instruction shall include the history of the flag, etiquette, customs pertaining to the display and use of the flag, and other patriotic exercises as provided by Sections 36 U.S.C. 170 to 177.
(3) (a) The pledge of allegiance to the flag shall be recited:
(i) at the beginning of the day in each elementary public school in the state; and
(ii) once a week at the beginning of a school day in each public secondary school in the state.
(b) Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge.
(c) A student shall be excused from reciting the pledge upon written request from the student's parent or legal guardian.
Section 754. Section 53A-13-106 is amended to read:
53A-13-106
. Instruction in firearm safety -- Purpose -- School districts to implement volunteer education classes -- Parental consent exception.(1) (a) School districts may permit the use of district approved volunteers or school district teachers for instruction of firearm safety education classes for students.
(b) The volunteers or school district teachers instructing the firearm safety education class are encouraged to utilize donated materials prepared by firearms training and education organizations or to develop their own materials within existing budgets.
(2) The purpose of firearm safety education is to:
(a) develop the knowledge, habits, skills, and attitudes necessary for the safe handling of firearms; and
(b) help students avoid firearm injuries.
(3) School districts may offer firearm safety instruction to students in grades kindergarten through four to teach them that in order to avoid injury when they find a firearm they should:
(a) not touch it;
(b) tell an adult about finding the firearm and its location; and
(c) be able to share the instruction provided in Subsections (a) and (b) with any other minors who are with them when they find a firearm.
(4) As used in this chapter, "firearm" means any firearm as defined in Section 76-10-501.
(5) The State Board of Education shall make rules promulgated pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for:
(a) use of certified volunteers for instruction of firearm safety education classes in the public schools;
(b) use of public school classrooms or auditoriums for these classes;
(c) school district review of donated materials before their use; and
(d) proof of certification as a firearm safety instructor.
(6) (a) A local school board may require every student in grades kindergarten through six to participate in a firearm safety education class offered within the public schools under this section.
(b) A student may be exempted from participation upon notification to the local school by the student's parent or legal guardian that the parent or legal guardian wants the student exempted from the class in its entirety or any portion specified.
(7) If a student is exempted under Subsection (6), the school may provide other activities during the period of time in which the student would otherwise be participating in the program.
(8) The school districts may permit the Division of Wildlife Resources, local law enforcement agencies, peace officers as defined in Title 53, Chapter 13, Peace Officer Classifications, certified instructors, certified hunter education instructors, and other certified firearms safety instructors, as provided by rules adopted under Subsection (5)(a) to teach the firearm safety education class on a voluntary basis.
(9) The school district is encouraged to maximize the use of existing firearm safety educational materials which are available at minimal or no cost and the use of certified volunteer instructors.
(10) The school district may review the class on a regular basis for its effectiveness.
Section 755. Section 53A-13-201 is amended to read:
53A-13-201
. Driver education established by school districts.(1) As used in this part:
(a) "Driver education" includes classroom instruction and driving and observation in a dual-controlled motor vehicle.
(b) "Driving" or "behind-the-wheel driving" means operating a dual-controlled motor vehicle under the supervision of a certified instructor.
(2) (a) Local school districts may establish and maintain driver education for pupils.
(b) A school or local school district that provides driver education shall provide an opportunity for each pupil enrolled in that school or local school district to take the written test when the pupil is 15 years and nine months of age.
(c) Notwithstanding the provisions of Subsection (2)(b), a school or local school district that provides driver education may provide an opportunity for each pupil enrolled in that school or school district to take the written test when the pupil is 15 years of age.
(3) The purpose of driver education is to help develop the knowledge, attitudes, habits, and skills necessary for the safe operation of motor vehicles.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules for driver education offered in the public schools.
(5) The rules under Subsection (4) shall:
(a) require at least one hour of classroom training on the subject of railroad crossing safety for each driver education pupil; and
(b) establish minimum standards for approved driving ranges under Section 53-3-505.5.
(6) The requirements of Section 53-3-505.5 apply to any behind-the-wheel driving training provided as part of driver education offered under this part and used to satisfy the driver training requirement under Section 53-3-204.
Section 756. Section 53A-13-208 is amended to read:
53A-13-208
. Driver education teachers certified as license examiners.(1) The Driver License Division of the Department of Public Safety and the State Board of Education through the State Office of Education shall establish procedures and standards to certify teachers of driver education classes under this part to administer written and driving tests.
(2) The division is the certifying authority.
(3) (a) A teacher certified under this section shall give written and driving tests designed for driver education classes authorized under this part.
(b) The Driver License Division shall, in conjunction with the State Office of Education, establish minimal standards for the driver education class tests that are at least as difficult as those required to receive a class D operator's license under Title 53, Chapter 3, Uniform Drivers License Act.
(c) A student who passes the written test but fails the driving test given by a teacher certified under this section may apply for a learner permit or class D operator's license under Title 53, Chapter 3, Part 2, Driver Licensing Act, and complete the driving test at a Driver License Division office.
(4) A student shall have a learner permit issued by the Driver License Division under Section 53-3-210.5 in the student's immediate possession at all times when operating a motor vehicle under this section.
(5) A student who successfully passes the tests given by a certified driver education teacher under this section satisfies the written and driving parts of the test required for a learner permit or class D operator's license.
(6) The Driver License Division and the State Board of Education shall establish procedures to enable school districts to administer or process any tests for students to receive a learner permit or class D operator's license.
(7) The division and board shall establish the standards and procedures required under this section by rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 757. Section 53A-13-209 is amended to read:
53A-13-209
. Programs authorized -- Minimum standards.(1) Local school districts may:
(a) allow students to complete the classroom training portion of driver education through the following programs:
(i) home study; or
(ii) the electronic high school;
(b) provide each parent with driver education instructional materials to assist in parent involvement with driver education including behind-the-wheel driving materials;
(c) offer driver education outside of school hours in order to reduce the cost of providing driver education;
(d) offer driver education through community education programs;
(e) offer the classroom portion of driver education in the public schools and allow the student to complete the behind-the-wheel portion with a private provider:
(i) licensed under Section 53-3-504; and
(ii) not associated with the school or under contract with the school under Subsection 53A-13-202(3); or
(f) any combination of Subsections (1)(a) through (e).
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall establish minimum standards for the school-related programs under Subsection (1).
Section 758. Section 53A-15-101.5 is amended to read:
53A-15-101.5
. Concurrent enrollment instruction in Mandarin Chinese.(1) (a) As used in this section, "category IV languages" means those languages designated the most difficult to learn by the Defense Language Institute as provided in training to members of the United States Military.
(b) The Legislature recognizes:
(i) the importance of students acquiring skills in foreign languages in order for them to successfully compete in a global society; and
(ii) that the acquisition of category IV languages, such as Mandarin Chinese, Arabic, Korean, and Japanese, by students in the state's public schools requires extended sequences of study to acquire useful proficiency in listening, speaking, reading, and writing.
(2) (a) As a component of the concurrent enrollment program authorized under Section 53A-15-101, the State Board of Education and the State Board of Regents, in consultation with the Utah Education Network, may develop and implement a concurrent enrollment course of study in the category IV language of Mandarin Chinese.
(b) The course shall be taught over EDNET, the state's two-way interactive system for video and audio, to high school juniors and seniors in the state's public education system.
(3) (a) The concurrent enrollment course in Mandarin Chinese authorized in Subsection (2) may use paraprofessionals in the classroom who:
(i) are fluent in Mandarin Chinese; and
(ii) can provide reinforcement and tutoring to students on days and at times when they are not receiving instruction over EDNET under Subsection (2)(b).
(b) The State Board of Education, through the State Superintendent of Public Instruction, and professors who teach Chinese in the state system of higher education shall jointly ensure that the paraprofessionals are fluent in Mandarin Chinese.
(4) The State Board of Education and the State Board of Regents shall make joint rules on the concurrent enrollment course authorized under this section in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to include:
(a) notification to school districts on the times and places of the course offerings; and
(b) instructional materials for the course.
(5) Students who successfully complete the concurrent enrollment course offered under this section shall receive tuition reimbursement for a sequential Mandarin Chinese course they successfully complete at an institution within the state system of higher education under rules made by the State Board of Regents in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(6) The State Board of Education and the State Board of Regents shall jointly track and monitor the Mandarin Chinese language program and may expand the program to include other category IV languages, subject to student demand for the courses and available resources.
Section 759. Section 53A-15-104 is amended to read:
53A-15-104
. Critical Languages Program -- Pilot.(1) (a) As used in this section, "critical languages" means those languages described in the federal National Security Language Initiative, including Chinese, Arabic, Russian, Farsi, Hindi, and Korean.
(b) The Legislature recognizes:
(i) the importance of students acquiring skills in foreign languages in order for them to successfully compete in a global society; and
(ii) the academic, societal, and economic development benefits of the acquisition of critical languages.
(2) (a) The State Board of Education, in consultation with the Utah Education Network, shall develop and implement courses of study in the critical languages.
(b) A course may be taught:
(i) over EDNET, the state's two-way interactive system for video and audio, to students in the state's public education system; or
(ii) through the Electronic High School.
(3) (a) The courses authorized in Subsection (2) may use paraprofessionals in the classroom who:
(i) are fluent in the critical language being taught; and
(ii) can provide reinforcement and tutoring to students on days and at times when they are not receiving instruction over EDNET under Subsection (2)(b).
(b) The State Board of Education, through the state superintendent of public instruction, shall ensure that the paraprofessionals are fluent in the critical languages.
(4) The State Board of Education shall make rules on the critical languages courses authorized under this section in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to include:
(a) notification to school districts on the times and places of the course offerings; and
(b) instructional materials for the courses.
(5) The State Board of Education shall track and monitor the Critical Languages Program and may expand the program to include more course offerings and other critical languages, subject to student demand for the courses and available resources.
(6) Subject to funding for the program, the State Board of Education shall establish a pilot program for school districts and schools to initially participate in the Critical Languages Program that provides:
(a) $6,000 per language per school, for up to 20 schools, for courses offered in critical languages;
(b) $100 per student who completes a critical languages course; and
(c) an additional $400 per foreign exchange student who completes a critical languages course.
Section 760. Section 53A-16-101.5 is amended to read:
53A-16-101.5
. School LAND Trust Program -- Purpose -- Distribution of funds -- School plans for use of funds.(1) There is established the School LAND (Learning And Nurturing Development) Trust Program for the state's public schools to provide financial resources to enhance or improve student academic achievement and implement a component of the school improvement plan.
(2) (a) The program shall be funded each fiscal year:
(i) from the Interest and Dividends Account created in Section 53A-16-101; and
(ii) in the amount of the sum of the following:
(A) the interest and dividends from the investment of monies in the permanent State School Fund deposited to the Interest and Dividends Account in the immediately preceding year; and
(B) interest accrued on monies in the Interest and Dividends Account in the immediately preceding fiscal year.
(b) On and after July 1, 2003, the program shall be funded as provided in Subsection (2)(a) up to a maximum of an amount equal to 2% of the funds provided for the Minimum School Program, pursuant to Title 53A, Chapter 17a, Minimum School Program Act, each fiscal year.
(c) The Legislature shall annually allocate, through an appropriation to the State Board of Education, a portion of School LAND Trust Program monies for the administration of the program.
(3) (a) The State Board of Education shall allocate the monies referred to in Subsection (2) annually for the fiscal year beginning July 1, 2000, and for each fiscal year thereafter as follows:
(i) school districts shall receive 10% of the funds on an equal basis; and
(ii) the remaining 90% of the funds shall be distributed on a per student basis, with each district receiving its allocation based on the number of students in the district as compared to the state total.
(b) Each school district shall distribute its allocation under Subsection (3)(a) to each school within the district on an equal per student basis.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board may make rules regarding the time and manner in which the student count shall be made for allocation of the monies.
(4) Except as provided in Subsection (7), in order to receive its allocation under Subsection (3), a school shall have established a school community council under Section 53A-1a-108.
(5) (a) The school community council or its subcommittee shall develop a program to use its allocation under Subsection (3) to implement a component of the school's improvement plan, including:
(i) the school's identified most critical academic needs;
(ii) a recommended course of action to meet the identified academic needs;
(iii) a specific listing of any programs, practices, materials, or equipment which the school will need to implement a component of its school improvement plan to have a direct impact on the instruction of students and result in measurable increased student performance; and
(iv) how the school intends to spend its allocation of funds under this section to enhance or improve academic excellence at the school.
(b) The school may develop a multiyear program, but the program shall be presented and approved by the school community council and the local school board of the district in which the school is located annually and as a prerequisite to receiving program funds allocated under this section.
(6) (a) Each school shall:
(i) implement the program as approved by the school community council and approved by the local school board;
(ii) provide ongoing support for the council's or its subcommittee's program;
(iii) meet school board reporting requirements regarding financial and performance accountability of the program; and
(iv) publicize to its patrons and the general public on how the funds it received under this section were used to enhance or improve academic excellence at the school and implement a component of the school's improvement plan, including the results of those efforts.
(b) (i) Each school through its council or its subcommittee shall prepare and present an annual report of the program to its local school board at the end of the school year.
(ii) The report shall detail the use of program funds received by the school under this section and an assessment of the results obtained from the use of the funds.
(7) (a) The governing board of a charter school shall prepare a plan for the use of school trust monies that includes the elements listed in Subsection (5).
(b) The plan shall be subject to approval by the entity that authorized the establishment of the charter school.
(8) (a) A school community council and a governing board of a charter school may not be required to:
(i) send a letter to legislators or other elected officials on the school's use of School LAND Trust Program monies as a condition of receiving the monies; or
(ii) report to the State Board of Education or any local school board on whether any letters were sent to legislators or other elected officials on the school's use of School LAND Trust Program monies.
(b) Subsection (8)(a)(i) does not apply to the annual report to the local school board required by Subsection (6)(b).
Section 761. Section 53A-17a-105 is amended to read:
53A-17a-105
. Action required for underestimated or overestimated weighted pupil units -- Action required for underestimating or overestimating local contributions.(1) If the number of weighted pupil units in a program is underestimated in Section 53A-17a-104, the amount per pupil in that program paid under this chapter must be reduced so that the amount paid does not exceed the estimated amount by program.
(2) If the number of weighted pupil units in a program is overestimated in Section 53A-17a-104, the state superintendent of public instruction shall either increase the amount paid in that program per weighted pupil unit or transfer the unused amount in that program to another program included in the minimum school program.
(3) (a) If surplus funds are transferred to another program, the state superintendent, if he determines certain districts have greater need for additional funds, may designate the districts as well as the programs to which the transferred funds will be allocated.
(b) Any amounts transferred under Subsection (a) may be spent in addition to the amounts listed in Section 53A-17a-104.
(4) The limitation on the proceeds from local tax rates for operation and maintenance programs under this chapter is subject to modification by local school boards under Sections 53A-17a-133 and 53A-17a-134 and to special tax rates authorized by this chapter, and shall be adjusted accordingly.
(5) If local contributions are overestimated, the guarantee per weighted pupil unit is reduced for all programs so the total state contribution for operation and maintenance programs does not exceed the amount authorized in Subsection 53A-17a-104(1).
(6) (a) If local contributions from the basic tax rate for operation and maintenance programs are underestimated, the excess is applied first to support the value of the weighted pupil unit as set by the Legislature for total weighted pupil units generated by the districts and those costs of Social Security and retirement, transportation, and board and voted leeway that occur as a result of the additional generated weighted pupil units, following internal adjustments by the state superintendent as provided in this section.
(b) The state contribution is decreased so the total school program cost for operation and maintenance programs does not exceed the total estimated contributions to school districts for all programs under Subsection 53A-17a-104(2) plus the amount of local revenue necessary to support the value of the weighted pupil unit for weighted pupil units generated and those costs of Social Security and retirement, transportation, and board and voted leeway that occur as a result of the additional generated weighted pupil units.
(7) As an exception to Section [63-38-8] 63J-1-401, the state fiscal officer may not close out appropriations from the Uniform School Fund at the end of a fiscal year.
Section 762. Section 53A-17a-107 is amended to read:
53A-17a-107
. Professional staff weighted pupil units.(1) Professional staff weighted pupil units are computed and distributed in accordance with the following schedule:
(a) Professional Staff Cost Formula
Master's
Years of Bachelor's Bachelor's Master's Degree
Experience Degree +30 Qt. Hr. Degree +45 Qt. Hr. Doctorate
1 1.00 1.05 1.10 1.15 1.20
2 1.05 1.10 1.15 1.20 1.25
3 1.10 1.15 1.20 1.25 1.30
4 1.15 1.20 1.25 1.30 1.35
5 1.20 1.25 1.30 1.35 1.40
6 1.25 1.30 1.35 1.40 1.45
7 1.30 1.35 1.40 1.45 1.50
8 1.35 1.40 1.45 1.50 1.55
9 1.50 1.55 1.60
10 1.60 1.65
11 1.70
(b) Multiply the number of full-time or equivalent professional personnel in each applicable experience category in Subsection (1)(a) by the applicable weighting factor.
(c) Divide the total of Subsection (1)(b) by the number of professional personnel included in Subsection (1)(b) and reduce the quotient by 1.00.
(d) Multiply the result of Subsection (1)(c) by 1/4 of the weighted pupil units computed in accordance with Sections 53A-17a-106 and 53A-17a-109.
(2) The State Board of Education shall enact rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which require a certain percentage of a district's professional staff to be certified in the area in which they teach in order for the district to receive full funding under the schedule.
(3) If an individual's teaching experience is a factor in negotiating a contract of employment to teach in the state's public schools, then the local school board is encouraged to accept as credited experience all of the years the individual has taught in the state's public schools.
Section 763. Section 53A-17a-111 is amended to read:
53A-17a-111
. Weighted pupil units for programs for students with disabilities -- District allocation.(1) The number of weighted pupil units for students with disabilities shall reflect the direct cost of programs for those students conducted in accordance with rules established by the State Board of Education in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Disability program monies allocated to districts are restricted and shall be spent for the education of students with disabilities but may include expenditures for approved programs of services conducted for certified instructional personnel who have students with disabilities in their classes.
(3) The State Board of Education shall establish and strictly interpret definitions and provide standards for determining which students have disabilities and shall assist districts in determining the services that should be provided to students with disabilities.
(4) Each year the board shall evaluate the standards and guidelines that establish the identifying criteria for disability classifications to assure strict compliance with those standards by the districts.
(5) (a) Monies appropriated to the State Board of Education in Section 53A-17a-104 for add-on WPUs for students with disabilities enrolled in regular programs shall be allocated to school districts as provided in this Subsection (5).
(b) Beginning on July 1, 2003, the State Board of Education shall:
(i) use a district's average number of special education add-on weighted pupil units determined by the previous five year's average daily membership data as a foundation for the special education add-on appropriation; and
(ii) implement a hold harmless provision for up to three years as needed to accomplish a phase-in period for school districts to accommodate the change in the special education add-on WPUs foundation formula.
(c) A district's special education add-on WPUs for the current year may not be less than the foundation special education add-on WPUs.
(d) Growth WPUs shall be added to the prior year special education add-on WPUs, and growth WPUs shall be determined as follows:
(i) The special education student growth factor is calculated by comparing S-3 total special education ADM of two years previous to the current year to the S-3 total special education ADM three years previous to the current year, not to exceed the official October total district growth factor from the prior year.
(ii) When calculating and applying the growth factor, a district's S-3 total special education ADM for a given year is limited to 12.18% of the district's S-3 total student ADM for the same year.
(iii) Growth ADMs are calculated by applying the growth factor to the S-3 total special education ADM of two years previous to the current year.
(iv) Growth ADMs for each district are multiplied by 1.53 weighted pupil units and added to the prior year special education add-on WPU to determine each district's total allocation.
(6) If monies appropriated under this chapter for programs for students with disabilities do not meet the costs of districts for those programs, each district shall first receive the amount generated for each student with a disability under the basic program.
Section 764. Section 53A-17a-120 is amended to read:
53A-17a-120
. Appropriation for accelerated learning programs.(1) Money appropriated to the State Board of Education in Section 53A-17a-104 for accelerated learning programs shall be allocated to local school boards and charter schools for the following programs:
(a) programs in grades 1-12 for the gifted and talented; and
(b) advanced placement.
(2) (a) Districts shall spend monies for these programs according to rules established by the State Board of Education in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The State Board of Education shall develop uniform and consistent policies for school districts to follow in utilizing advanced placement monies.
Section 765. Section 53A-17a-121 is amended to read:
53A-17a-121
. Appropriation for at-risk programs.(1) Money appropriated to the State Board of Education in Section 53A-17a-104 for at-risk programs shall be allocated to local school boards for the following programs:
(a) youth in custody;
(b) homeless and disadvantaged minority students;
(c) mathematics, engineering, and science achievement programs;
(d) gang prevention and intervention; and
(e) at-risk flow through.
(2) Districts shall spend monies for these programs according to rules established by the State Board of Education in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) From the amount appropriated for youth at risk programs, the board shall allocate moneys to school districts for homeless and disadvantaged minority students.
(b) Each district shall receive its allocation on the basis of:
(i) the total number of homeless students in the district;
(ii) added to 50% of the number of disadvantaged minority students in the district;
(iii) multiplying the total of Subsections (3)(b)(i) and (ii) by the value of the weighted pupil unit; and
(iv) prorating the amount under Subsection (3)(b)(iii) to the amount in Subsection (3)(a).
(4) (a) From the amount appropriated for at-risk programs, the board shall allocate monies for mathematics, engineering, and science achievement programs, MESA programs, in the districts.
(b) The board shall make the distribution to school districts on a competitive basis by application under guidelines established by the board.
(5) (a) From the amount appropriated for at-risk programs, the board shall distribute moneys for gang prevention and intervention programs at the district or school level.
(b) The board shall make the distribution to school districts under guidelines established by the board consistent with Section 53A-15-601.
(6) (a) From the amount appropriated for at-risk programs, the board shall distribute moneys for programs for youth in custody.
(b) The board shall allocate these moneys to school districts which operate programs for youth in custody in accordance with standards established by the board.
(7) From the amount appropriated for at-risk programs, the board shall allocate monies based on:
(a) a formula which takes into account prior year WPU's per district and a district's low income population; and
(b) a minimum base of no less than $18,600 for small school districts.
Section 766. Section 53A-17a-131.9 is amended to read:
53A-17a-131.9
. Agencies coming together for children and youth at risk.(1) Monies appropriated to or received by the State Board of Education to maintain [Title 63, Chapter 75] Title 63M, Chapter 9, Families, Agencies, and Communities Together for Children and Youth At Risk Act, shall be subject to the provisions of this section.
(2) Participation in the at risk programs funded under this section shall require consent from a parent or legal guardian for the participant to receive initial or continuing services under the program.
(3) A participant's parent or legal guardian shall be actively involved in the program and all applicable state and federal laws and regulations shall be observed by the entities and individuals providing the services.
(4) The board shall use the appropriation to experiment on a community full-service delivery system level to provide data on the merits of moving the concept to a fully implemented statewide system.
Section 767. Section 53A-17a-131.15 is amended to read:
53A-17a-131.15
. State contribution for the Electronic High School.Money appropriated to the State Board of Education in Section 53A-17a-104 for the Electronic High School shall be distributed to the school according to rules established by the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 768. Section 53A-17a-131.17 is amended to read:
53A-17a-131.17
. State contribution for School LAND Trust Program.(1) If the amount of money prescribed for funding the School LAND Trust Program in Section 53A-16-101.5 is less than or greater than the money appropriated in Section 53A-17a-104 for the School LAND Trust Program, the appropriation shall be equal to the amount of money prescribed for funding the School LAND Trust Program in Section 53A-16-101.5, up to a maximum of an amount equal to 2% of the funds provided for the Minimum School Program, pursuant to Title 53A, Chapter 17a, Minimum School Program Act.
(2) The State Board of Education shall distribute the money appropriated in Subsection (1) in accordance with Section 53A-16-101.5 and rules established by the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 769. Section 53A-17a-153 is amended to read:
53A-17a-153
. Educator salary adjustments.(1) As used in this section, "educator" means a person employed by a school district, charter school, or the Utah Schools for the Deaf and the Blind who holds:
(a) a license issued under Title 53A, Chapter 6, Educator Licensing and Professional Practices Act; and
(b) a position as a:
(i) classroom teacher;
(ii) speech pathologist;
(iii) librarian or media specialist;
(iv) preschool teacher;
(v) school administrator;
(vi) mentor teacher;
(vii) teacher specialist or teacher leader;
(viii) guidance counselor;
(ix) audiologist;
(x) psychologist; or
(xi) social worker.
(2) In recognition of the need to attract and retain highly skilled and dedicated educators, the Legislature shall annually appropriate money for educator salary adjustments, subject to future budget constraints.
(3) Money appropriated to the State Board of Education for educator salary adjustments shall be distributed to school districts, charter schools, and the Utah Schools for the Deaf and the Blind in proportion to the number of full-time-equivalent educator positions in a school district, a charter school, or the Utah Schools for the Deaf and the Blind as compared to the total number of full-time-equivalent educator positions in school districts, charter schools, and the Utah Schools for the Deaf and the Blind.
(4) School districts, charter schools, and the Utah Schools for the Deaf and the Blind shall award bonuses to educators as follows:
(a) the amount of the salary adjustment shall be the same for each full-time-equivalent educator position in the school district, charter school, or the Utah Schools for the Deaf and the Blind;
(b) a person who is not a full-time educator shall receive a partial salary adjustment based on the number of hours the person works as an educator; and
(c) salary adjustments may be awarded only to educators who have received a satisfactory rating or above on their most recent evaluation.
(5) (a) Each school district and charter school and the Utah Schools for the Deaf and the Blind shall submit a report to the State Board of Education on how the money for salary adjustments was spent, including the amount of the salary adjustment and the number of full and partial salary adjustments awarded.
(b) The State Board of Education shall compile the information reported under Subsection (5) and submit it to the Public Education Appropriations Subcommittee by November 30 each year.
(6) The State Board of Education may make rules as necessary to administer this section, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(7) Subject to future budget constraints, the Legislature shall appropriate sufficient monies each year to:
(a) maintain educator salary adjustments provided in prior years; and
(b) provide educator salary adjustments to new employees.
Section 770. Section 53A-19-105 is amended to read:
53A-19-105
. School district interfund transfers.(1) A school district shall spend revenues only within the fund for which they were originally authorized, levied, collected, or appropriated.
(2) Except as otherwise provided in this section, school district interfund transfers of residual equity are prohibited.
(3) The State Board of Education may authorize school district interfund transfers of residual equity when a district states its intent to create a new fund or expand, contract, or liquidate an existing fund.
(4) The State Board of Education may also authorize school district interfund transfers of residual equity for a financially distressed district if the board determines the following:
(a) the district has a significant deficit in its maintenance and operations fund caused by circumstances not subject to the administrative decisions of the district;
(b) the deficit cannot be reasonably reduced under Section 53A-19-104; and
(c) without the transfer, the school district will not be capable of meeting statewide educational standards adopted by the State Board of Education.
(5) The board shall develop standards for defining and aiding financially distressed school districts under this section in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(6) (a) All debt service levies not subject to certified tax rate hearings shall be recorded and reported in the debt service fund.
(b) Debt service levies under Subsection 59-2-924(2)(a)(v)(C) that are not subject to the certified tax rate hearing requirements of Sections 59-2-918 and 59-2-919 may not be used for any purpose other than retiring general obligation debt.
(c) Amounts from these levies remaining in the debt service fund at the end of a fiscal year shall be used in subsequent years for general obligation debt retirement.
(d) Any amounts left in the debt service fund after all general obligation debt has been retired may be transferred to the capital projects fund upon completion of the budgetary hearing process required under Section 53A-19-102.
Section 771. Section 53A-20-101 is amended to read:
53A-20-101
. Construction and alteration of schools and plants -- Advertising for bids -- Payment and performance bonds -- Contracts -- Bidding limitations on local school boards -- Interest of local school board members.(1) As used in this section, the word "sealed" does not preclude acceptance of electronically sealed and submitted bids or proposals in addition to bids or proposals manually sealed and submitted.
(2) (a) Prior to the construction of any school or the alteration of any existing school plant, if the total estimated accumulative building project cost exceeds $80,000, a local school board shall advertise for bids on the project at least ten days before the bid due date.
(b) The board shall have the advertisement published in a newspaper having general circulation throughout the state and in appropriate construction trade publications that offer free listings.
(c) A similar advertisement is required in a newspaper published or having general circulation in any city or county that would be affected by the proposed project.
(d) The advertisement shall:
(i) require sealed proposals for the building project in accordance with plans and specifications furnished by the local school board;
(ii) state where and when the proposals will be opened and shall reserve the right of the board to reject any and all proposals; and
(iii) require a certified check or bid bond of not less than 5% of the bid to accompany the bid.
(3) (a) The board shall meet at the time and place specified in the advertisement and publicly open and read all received proposals.
(b) If satisfactory bids are received, the board shall award the contract to the lowest responsible bidder.
(c) If none of the proposals are satisfactory, all shall be rejected.
(d) The board shall again advertise in the manner provided in this section.
(e) If, after advertising a second time no satisfactory bid is received, the board may proceed under its own direction with the required project.
(4) (a) The check or bond required under Subsection (2)(d) shall be drawn in favor of the local school board.
(b) If the successful bidder fails or refuses to enter into the contract and furnish the additional bonds required under this section, then the bidder's check or bond is forfeited to the district.
(5) A local school board shall require payment and performance bonds of the successful bidder as required in Section [63-56-504] 63G-6-505.
(6) (a) A local school board may require in the proposed contract that at least 10% of the contract price be withheld until the project is completed and accepted by the board.
(b) If money is withheld, the board shall place it in an interest bearing account, and the interest accrues for the benefit of the contractor and subcontractors.
(c) This money shall be paid upon completion of the project and acceptance by the board.
(7) (a) A local school board may not bid on projects within the district if the total accumulative estimated cost exceeds $80,000.
(b) The board may use its resources if no satisfactory bids are received under this section.
(8) If the local school board determines in accordance with Section [63-56-501] 63G-6-501 to use a construction manager/general contractor as its method of construction contracting management on projects where the total estimated accumulative cost exceeds $80,000, it shall select the construction manager/general contractor using one of the source selection methods provided for in Sections [63-56-401] 63G-6-401 through [63-56-501] 63G-6-501.
(9) A local school board member may not have a direct or indirect financial interest in the construction project contract.
Section 772. Section 53A-20c-102 is amended to read:
53A-20c-102
. Energy Efficiency Fund -- Contents -- Use of fund monies.(1) As used in this section:
(a) "Board" means the Board of the Utah Geological Survey.
(b) "Energy code" means the energy efficiency code adopted by the Division of Occupational and Professional Licensing under Section 58-56-4.
(c) "Energy efficiency project" means:
(i) for existing buildings, a retrofit to improve energy efficiency; or
(ii) for new buildings, an enhancement to improve energy efficiency beyond the minimum required by the energy code.
(d) "Fund" means the Energy Efficiency Fund created by this part.
(2) There is created a revolving loan fund known as the Energy Efficiency Fund.
(3) The fund shall consist of:
(a) monies appropriated to it by the Legislature;
(b) monies received for the repayment of loans made from the fund;
(c) monies made available to the state for energy efficiency from any source; and
(d) interest earned on the fund.
(4) (a) The board shall make loans from the fund only to school districts to finance energy efficiency projects in school district buildings, including paying the costs of construction, engineering, investigation, inspection, and other related expenses.
(b) The board may not:
(i) make loans from the fund to finance a school district's compliance with the energy code in the construction of a new building;
(ii) make a loan from the fund with a term of less than two years or more than 12 years; or
(iii) make loans from the fund to any entity other than a school district.
(5) (a) (i) Each school district seeking a loan shall submit an application to the board in the form and containing the information that the board requires, which shall include the plans and specifications for the proposed energy efficiency project.
(ii) In the application, the school district may request a loan to cover all or part of the cost of an energy efficiency project.
(b) If an application is rejected, the board shall notify the applicant stating the reasons for the rejection.
(6) (a) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules establishing criteria for:
(i) determining eligibility for loans; and
(ii) determining appropriate priorities among projects.
(b) In making rules governing determining priorities for eligible projects, the board may consider:
(i) possible additional sources of revenue;
(ii) the feasibility and practicality of the project;
(iii) the energy savings attributable to an eligible energy efficiency project;
(iv) the annual energy cost savings attributable to an eligible energy efficiency project;
(v) the projected energy cost payback of an eligible energy efficiency project;
(vi) the financial need of the public facility owner;
(vii) the environmental and other benefits to the state and local community attributable to an eligible energy efficiency project; and
(viii) the availability of federal funds for the project.
(7) (a) In approving a project, the board shall:
(i) review the loan application and the plans and specifications for the project;
(ii) determine whether or not to grant the loan by applying its eligibility criteria; and
(iii) if the loan is granted, prioritize the project by applying its priority criteria.
(b) The board may condition approval of a loan request and the availability of funds on assurances from the school district that the board considers necessary to ensure that:
(i) the proceeds of the loan will be used to pay the cost of the project; and
(ii) the project will be completed.
(8) Employees of the state energy program shall serve as staff to the board when it performs the duties established in this section.
Section 773. Section 53A-21-103 is amended to read:
53A-21-103
. Qualifications for participation in the foundation program -- Distribution of monies -- Distribution formulas.(1) In order for a school district to qualify for monies under the Capital Outlay Foundation Program established in Subsection 53A-21-102(1), a local school board must levy a tax rate of up to .0024 per dollar of taxable value for capital outlay and debt service.
(2) The State Board of Education shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
(a) allow a school district levying less than the full .0024 tax rate to receive proportional funding under the foundation program based upon the percentage of the .0024 tax rate levied by the district; and
(b) maintain a school district's funding under the Capital Outlay Foundation Program for up to two years if the school district's funding would otherwise be reduced as a consequence of changes in the certified tax rate under Section 59-2-924 due to changes in property valuation.
(3) The State Board of Education shall distribute monies in the Capital Outlay Foundation Program in accordance with a formula developed by the state superintendent of public instruction which guarantees that a tax rate of up to .0024 per dollar of taxable value for capital outlay and debt service yields a minimum amount per pupil in average daily membership.
Section 774. Section 53A-21-103.5 is amended to read:
53A-21-103.5
. Qualifications for participation in the Enrollment Growth Program -- State Board of Education rules -- Distribution formula.(1) As used in this section:
(a) "ADM" means average daily membership.
(b) "Derived valuation" means total school district property tax current collections from April 1 through the following March 31, divided by the tax rates for the same year.
(c) "Yield per ADM" means the product of the derived valuation multiplied by .0024, divided by average daily membership.
(2) (a) The State Board of Education shall distribute monies in the Enrollment Growth Program to qualifying school districts whose:
(i) average net enrollment for the prior three years is a net increase in enrollment; and
(ii) yield per ADM is less than two times the prior year's average yield per ADM for Utah school districts.
(b) A school district that meets the criteria of Subsection (2)(a) shall receive Enrollment Growth Program monies in the same proportion that the district's three-year average net enrollment bears to the total three-year net enrollment of all the districts that meet the criteria of Subsection (2)(a).
(c) The State Board of Education shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer this section.
Section 775. Section 53A-24-114 is amended to read:
53A-24-114
. Governor's Committee on Employment of People with Disabilities.(1) There is created the Governor's Committee on Employment of People with Disabilities.
(2) (a) The State Board of Education shall appoint at least twelve members to the committee.
(b) The State Board of Education shall ensure that the committee includes members from the public and private sectors who represent:
(i) business and industry;
(ii) individuals with disabilities and their advocates;
(iii) job training and placement;
(iv) administrative subunits of the state, such as the Department of Human Resource Management, the Department of Workforce Services, Public Education, Higher Education, and the Department of Human Services;
(v) labor;
(vi) veterans;
(vii) medical;
(viii) health;
(ix) insurance;
(x) media; and
(xi) the general public.
(c) (i) Except as provided in Subsection (2)(c)(ii), the State Board of Education shall appoint committee members to serve four-year terms.
(ii) In making the initial appointments to the committee, the State Board of Education shall appoint approximately 1/2 of the members to two-year terms and 1/2 of the members to four-year terms.
(d) Committee members shall serve until their successors are appointed and qualified.
(e) The State Board of Education shall fill any vacancy that occurs on the committee for any reason by appointing a person according to the procedures of this section for the unexpired term of the vacated member.
(f) The State Board of Education shall select a chair from the membership.
(g) Seven members of the committee are a quorum for the transaction of business.
(3) (a) The committee shall:
(i) promote employment opportunities for individuals with disabilities;
(ii) serve as the designated state liaison to the President's Committee on Employment of People with Disabilities;
(iii) provide training and technical assistance to employers in implementing the Americans with Disabilities Act;
(iv) develop and disseminate appropriate information through workshops, meetings, and other requests in response to needs to employers and others regarding employment of individuals with disabilities;
(v) establish contacts with various community representatives to identify and resolve barriers to full participation in employment and community life;
(vi) formally recognize exemplary contributions in the areas of employment, job placement, training, rehabilitation, support services, medicine, media or public relations, and personal achievements made by individuals with disabilities;
(vii) advise, encourage, and motivate individuals with disabilities who are preparing for or seeking employment to reach their full potential as qualified employees;
(viii) advocate for policies and practices that promote full and equal rights for individuals with disabilities;
(ix) advise the State Board of Education and the governor on issues that affect employment and other requests for information on disability issues;
(x) prepare an annual report on the progress, accomplishments, and future goals of the committee and present the report to the State Board of Education and the governor; and
(xi) establish and maintain a cooperative liaison between the governor's office, the executive director of the committee, and the executive director of the Utah State Office of Rehabilitation to fulfill the committee's purpose.
(b) The committee may, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, receive and accept federal funds, and may receive and accept state funds, private gifts, donations, and funds from any source to carry out its purposes.
(4) The director of the State Office of Rehabilitation shall appoint a person to staff the committee.
Section 776. Section 53A-26a-302 is amended to read:
53A-26a-302
. Qualifications for certification.Each applicant for certification under this chapter shall:
(1) submit an application in a form prescribed by the State Board of Education;
(2) pay a fee determined by the State Board of Education under Section [63-38-3.2] 63J-1-303 to help offset the costs of implementing this chapter for the administration of examinations for certification and for the issuance of certificates;
(3) be of good moral character; and
(4) comply with any other qualifications for certification established by the State Board of Education pursuant to Subsection 53A-26a-202(2).
Section 777. Section 53B-2-107 is amended to read:
53B-2-107
. Appropriations reallocation.(1) Notwithstanding the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, appropriations for the support of higher education for the fiscal year beginning July 1, 2001 and ending June 30, 2002, may be reallocated between line items as provided in this section.
(2) (a) The president of the University of Utah may reallocate between line items the appropriations:
(i) described in Items 143-150 and Item 152 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(3) (a) The president of Utah State University may reallocate between line items the appropriations:
(i) described in Items 154-166 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(4) (a) The president of Weber State University may reallocate between line items the appropriations:
(i) described in Items 168 and 169 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(5) (a) The president of Southern Utah University may reallocate between line items the appropriations:
(i) described in Items 170-172 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(6) (a) The president of Snow College may reallocate between line items the appropriations:
(i) described in Items 173-175 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(7) (a) The president of Dixie State College may reallocate between line items the appropriations:
(i) described in Items 177-179 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(8) (a) The president of the College of Eastern Utah may reallocate between line items the appropriations:
(i) described in Items 180-183 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(9) (a) The president of Utah Valley State College may reallocate between line items the appropriations:
(i) described in Items 184 and 185 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(10) (a) The president of Salt Lake Community College may reallocate between line items the appropriations:
(i) described in Items 186-188 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
(11) (a) The State Board of Regents may reallocate between line items the appropriations:
(i) described in Items 189, 190, and 192-199 in Chapter 334, Laws of Utah 2001; and
(ii) as modified by:
(A) H.B. 1, 2002 General Session; and
(B) H.B. 3, 2002 General Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in H.B. 1, 2002 General Session and H.B. 3, 2002 General Session.
Section 778. Section 53B-2-108 is amended to read:
53B-2-108
. Appropriations reallocation.(1) Notwithstanding the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, appropriations for the support of higher education for the fiscal year beginning July 1, 2002 and ending June 30, 2003, may be reallocated between line items as provided in this section.
(2) (a) The president of the University of Utah may reallocate between line items the appropriations:
(i) described in Items 141-149 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 4001, 2002 Fourth Special Session and H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(3) (a) The president of Utah State University may reallocate between line items the appropriations:
(i) described in Items 150-159 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 4001, 2002 Fourth Special Session and H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(4) (a) The president of Weber State University may reallocate between line items the appropriations:
(i) described in Items 160 and 161 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 4001, 2002 Fourth Special Session and H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(5) (a) The president of Southern Utah University may reallocate between line items the appropriations:
(i) described in Items 162-164 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(6) (a) The president of Snow College may reallocate between line items the appropriations:
(i) described in Items 165-167 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(7) (a) The president of Dixie State College may reallocate between line items the appropriations:
(i) described in Items 168-170 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(8) (a) The president of the College of Eastern Utah may reallocate between line items the appropriations:
(i) described in Items 171-174 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(9) (a) The president of Utah Valley State College may reallocate between line items the appropriations:
(i) described in Items 175 and 176 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(10) (a) The president of Salt Lake Community College may reallocate between line items the appropriations:
(i) described in Items 177-179 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
(11) (a) The State Board of Regents may reallocate between line items the appropriations:
(i) described in Items 180-189 in S.B. 1, 2002 General Session; and
(ii) as modified by supplemental appropriations, including H.B. 5009, 2002 Fifth Special Session.
(b) The total amount of money reallocated may not exceed the sum of the reductions made in the supplemental appropriations.
Section 779. Section 53B-6-105 is amended to read:
53B-6-105
. Engineering and Computer Technology Initiative.(1) The Legislature recognizes that a significant increase in the number of engineering, computer science, and related technology graduates from the state system of higher education is required over the next several years to advance the intellectual, cultural, social, and economic well-being of the state and its citizens.
(2) (a) (i) The State Board of Regents shall therefore develop, establish, and maintain an Engineering and Computer Science Initiative within the state system of higher education to double the number of graduates in engineering, computer science, and related technology by 2006 and triple the number of graduates by 2009.
(ii) The board shall make a rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, providing the criteria for those fields of study that qualify as "related technology" under this section and Sections 53B-6-105.7 and 53B-6-105.9.
(b) The initiative shall include components that:
(i) improve the quality of instructional programs in engineering, computer science, and related technology by providing supplemental monies for equipment purchases; and
(ii) provide incentives to:
(A) students through a loan and loan forgiveness program under Section 53B-6-105.7; and
(B) institutions to hire and retain faculty under Section 53B-6-105.9.
(3) The increase in program capacity under Subsection (2)(a) shall include funding for new and renovated capital facilities and funding for new engineering and computer science programs.
(4) The Legislature shall provide an annual appropriation to fund the initiative as a budget line item for the State Board of Regents.
Section 780. Section 53B-6-105.7 is amended to read:
53B-6-105.7
. Initiative student loan and loan forgiveness program.(1) (a) There is established an engineering, computer science, and related technology student loan program as a component of the initiative created in Section 53B-6-105.
(b) The program is established to recruit and train engineering, computer science, and related technology students to assist in providing for and advancing the intellectual and economic welfare of the state.
(2) (a) The board:
(i) may make rules for the overall administration of the program in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(ii) shall administer the program consistent with the general student loan provisions outlined in Title 53B.
(b) The board shall also use the following policies and procedures in administering the student loan program:
(i) students may use their loans at any institution within the state system of higher education that offers an engineering, computer science, or related technology baccalaureate degree;
(ii) loans shall be given to students who declare an intent to complete a prescribed course of instruction in one of the areas referred to in Subsection (2)(b)(i) and to work in the state for a period of four years after graduation in one of those areas;
(iii) a loan may be cancelled at any time by the institution of attendance, if the student fails to make reasonable progress towards obtaining the baccalaureate degree or there appears to be a reasonable certainty that the student does not intend to work in the state upon graduation, and the board shall require repayment together with interest; and
(iv) (A) a loan recipient who does not work in the state in one of the areas listed in Subsection (1)(a) for a term equal to the number of years of the loan within a reasonable period of time after graduation shall repay a graduated portion of the loan based upon the uncompleted term together with appropriate interest, unless waived for good cause; and
(B) one year of employment as an engineer or in the field of computer science or related technologies is credit for a one-year loan for tuition and fees.
(3) The Legislature shall make an annual appropriation to the board to fund the student loan program created in this section.
Section 781. Section 53B-6-105.9 is amended to read:
53B-6-105.9
. Incentive program for engineering, computer science, and related technology faculty.(1) The Legislature shall provide an annual appropriation to help fund the faculty incentive component of the Engineering and Computer Science Initiative established under Section 53B-6-105.
(2) The appropriation shall be used to hire, recruit, and retain outstanding faculty in engineering, computer science, and related technology fields under guidelines established by the State Board of Regents.
(3) (a) State institutions of higher education shall match the appropriation on a one-to-one basis in order to qualify for state monies appropriated under Subsection (1).
(b) (i) Qualifying institutions shall annually report their matching dollars to the board.
(ii) The board shall make a summary report of the institutional matches.
(iii) The annual report of the Technology Initiative Advisory Board required by Section 53B-6-105.5 shall include the summary report of the institutional matches.
(4) The board shall make a rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing policies and procedures to apply for and distribute the state appropriation to qualifying institutions.
Section 782. Section 53B-6-106 is amended to read:
53B-6-106
. Jobs Now Economic Development Initiative.(1) The State Board of Regents shall develop, establish, and maintain a Jobs Now Economic Development Initiative within the state system of higher education, including the Utah College of Applied Technology, to promote workforce preparation programs that meet critical needs and shortages throughout the state.
(2) The initiative shall provide support for technical training expansion that trains skilled potential employees within a period not to exceed 12 months for technical jobs in critical needs occupations.
(3) (a) The Legislature shall provide an annual appropriation to fund the initiative in a line item to the State Board of Regents.
(b) (i) The board shall allocate at least 2/3 of the appropriation to the Utah College of Applied Technology for distribution to college campuses within the college as recommended by the Utah College of Applied Technology Board of Trustees.
(ii) A college campus shall use money received under Subsection (3)(b)(i) for technical training expansion referred to in Subsection (2).
(c) The board may allocate and distribute up to 1/3 of the appropriation to institutions within the state system of higher education for short term training programs that prepare skilled potential employees within a period not to exceed 12 months for technical jobs in critical needs occupations.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules:
(i) to implement the Jobs Now Economic Development Initiative; and
(ii) by which institutions may apply for the moneys referred to in Subsection (3)(c).
Section 783. Section 53B-7-502 is amended to read:
53B-7-502
. Higher Education Tuition Assistance Program.(1) There is created the Utah Higher Education Tuition Assistance Program, hereafter referred to in this part as the program.
(2) The board shall administer the program.
(3) The program shall be funded through appropriations by the Legislature.
(4) Money appropriated for the program shall be available only for need-based grants to higher education students, as provided in this part.
(5) (a) The board shall adopt rules for administration of the program, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The rules shall include the requirements that money appropriated to the program for a specific fiscal year, plus any remaining balance at the end of the preceding fiscal year, shall be allocated to eligible institutions on the following basis:
(i) the board shall distribute 50% of the amount available for allocation each fiscal year in equal proportions to:
(A) Snow College, main campus and extensions;
(B) Dixie State College, main campus and extensions;
(C) College of Eastern Utah, main campus and extensions;
(D) College of Eastern Utah, San Juan Campus and extensions;
(E) Utah Valley University, main campus and extensions;
(F) Salt Lake Community College, Taylorsville campus and extensions; and
(G) Salt Lake Community College, South City Campus; and
(ii) the board shall distribute 50% of the amount available for allocation each fiscal year to the Utah State University for its instructional centers at Roosevelt, Blanding, Randolph, Price, Moab, Brigham City, Tooele, Richfield, and Ephraim, and other centers as may be determined by the board.
(6) Higher education institutions may submit applications to the board, for specific eligible entities, for grants to students with demonstrated financial need, determined by criteria established by the board.
Section 784. Section 53B-12-101 is amended to read:
53B-12-101
. Utah Higher Education Assistance Authority designated -- Powers and duties.The board is the Utah Higher Education Assistance Authority and, in this capacity, may do the following:
(1) guarantee 100% of the principal of and interest on a loan to or for the benefit of a person attending or accepted to attend an eligible postsecondary educational institution to assist that person in meeting any educational expenses incurred in an academic year;
(2) take, hold, and administer real or personal property and moneys, including interest and income, either absolutely or in trust, for any purpose under this chapter;
(3) acquire property for the purposes indicated in Subsection (2) by purchase or lease and by the acceptance of gifts, grants, bequests, devises, or loans;
(4) enter into or contract with an eligible lending institution, or with a public or private postsecondary educational institution to provide for the administration by the institution of any loan or loan guarantee made by it, including application and repayment provisions;
(5) participate in federal programs guaranteeing, reinsuring, or otherwise supporting loans to eligible borrowers for postsecondary educational purposes and agree to, and comply with, the conditions and regulations applicable to those programs;
(6) adopt, amend, or repeal rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to govern the activities authorized by this chapter;
(7) receive state appropriations for the fund established under Section 53B-12-104 to match deposits and to accept contributions received by it for this purpose;
(8) receive funds from the federal government to assist in implementing federally supported programs administered under this chapter;
(9) engage, appoint, or contract for the services of officers, agents, employees, and private consultants to render and perform professional and technical duties and provide assistance and advice in carrying out the purposes of this chapter, to describe their duties, and to fix the amount and source of their compensation; and
(10) receive employment information from the Workforce Development and Information Division in accordance with Section 35A-4-312 for the purpose of collecting defaulted student loans made under this chapter. The information obtained under this Subsection (10) shall be limited to the employer's name, address, and telephone number for borrowers who have defaulted on a student loan held by the Utah Higher Education Assistance Authority.
Section 785. Section 53B-16-302 is amended to read:
53B-16-302
. Records that may be classified as restricted.A public institution of higher education may classify only the following records as restricted:
(1) that portion of a technology transfer record or sponsored research record to which access must be restricted for the purpose of securing and maintaining proprietary protection of intellectual property rights, including but not limited to patents, copyrights, trademarks, and trade secrets; or
(2) that portion of a technology transfer record or sponsored research record to which access is restricted for competitive or proprietary purposes, as a condition of actual or potential participation in a sponsored research or technology transfer agreement; provided, however, that upon receipt of a written request for a reasonably identifiable record, the public institution of higher education shall disclose:
(a) prior to a memorandum of intent to contract or an agreement in principle between the parties:
(i) the names of the parties, or, if the disclosure of names would cause competitive harm, a general description of the type of parties negotiating the technology transfer or sponsored research agreement; and
(ii) a general description of the nature of the technology transfer or sponsored research under consideration, excluding proprietary or competitive information; or
(b) after a memorandum of intent to contract or an agreement in principle between the parties:
(i) the names of the parties involved in the technology transfer or sponsored research;
(ii) a general description of the nature of the technology transfer or sponsored research to be conducted, excluding proprietary or competitive information; and
(iii) records of the technology transfer or sponsored research to be conducted, excluding those portions of records to which access is limited under this part or [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 786. Section 53B-16-303 is amended to read:
53B-16-303
. Access to restricted records.Notwithstanding any other provision of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, access to records restricted by this part shall only be permitted upon:
(1) written consent of the public institution of higher education originating, receiving, or maintaining such records; or
(2) a finding by the State Records Committee or a court that the record has not been properly classified as restricted under Section [63-2-302] 63G-2-302, provided that the review of a restricted classification of a record shall not include considerations of weighing public and private interests regarding access to a properly classified record as contained in Subsection [63-2-403] 63G-2-403(11)(b) or [63-2-404] 63G-2-404(8) or Section [63-2-308] 63G-2-309. Nothing in this subsection shall be construed to limit the authority of the State Board of Regents to reclassify and disclose a record of a public institution of higher education.
Section 787. Section 53B-16-304 is amended to read:
53B-16-304
. Business confidentiality claims.(1) (a) Any person who provides to a public institution of higher education a record that the person believes should be protected under a provision listed in Subsection [63-2-308] 63G-2-309(1)(b)(i), restricted under Section 53B-16-302, or both protected under a provision listed in Subsection [63-2-308] 63G-2-309(1)(b)(i) and restricted under Section 53B-16-302, shall provide the public institution of higher education:
(i) a written claim of business confidentiality; and
(ii) a concise statement of reasons supporting the claim of business confidentiality.
(b) The person described in Subsection (1)(a) shall make the filing at the commencement of:
(i) the sponsored research project; or
(ii) the technology transfer process.
(c) A claim of business confidentiality submitted under this Subsection (1) shall cover all protected and restricted records exchanged during the:
(i) sponsored research project; or
(ii) technology transfer process.
(2) The inadvertent failure to make a legally adequate claim of business confidentiality at the time required by Subsection (1) does not prejudice the claimant's right to make a legally adequate claim at a different time before disclosure of the record.
Section 788. Section 53B-16-305 is amended to read:
53B-16-305
. Applicability of the Government Records Access and Management Act.Except as otherwise provided by this part, the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, will apply to restricted technology transfer or sponsored research records as defined in this part, as if the records were protected records as defined by [Title 63, Chapter 2] Title 63G, Chapter 2.
Section 789. Section 53B-17-603 is amended to read:
53B-17-603
. Curation and deposit of specimens.(1) For purposes of this section:
(a) "Collections" is defined as provided in Section 9-8-302.
(b) "Curation facility" means:
(i) the museum;
(ii) an accredited facility meeting federal curation standards; or
(iii) an appropriate state park.
(c) "Museum" means the Utah Museum of Natural History.
(d) "Repository" means:
(i) a facility designated by the museum through memoranda of agreement; or
(ii) a place of reburial.
(e) "School and institutional trust lands" are those properties defined in Section 53C-1-103.
(2) The museum shall make rules to ensure the adequate curation of all collections from lands owned or controlled by the state or its subdivisions. The rules shall:
(a) conform to, but not be limited by, federal curation policy;
(b) recognize that collections recovered from school and institutional trust lands are owned by the respective trust, and shall be made available for exhibition as the beneficiaries of the respective trust may request, subject to museum curation policy and the curation facility's budgetary priorities;
(c) recognize that any collections obtained in exchange for collections found on school and institutional trust lands shall be owned by the respective trust; and
(d) recognize that if, at its discretion, the curation facility makes and sells reproductions derived from collections found on school or institutional trust lands, any monies obtained from these sales shall be given to the respective trust, but the curation facility may retain monies sufficient to recover the direct costs of preparation for sale and a reasonable fee for handling the sale.
(3) (a) The museum may enter into memoranda of agreement with other repositories located in and outside the state to act as its designee for the curation of collections.
(b) In these memoranda, the museum may delegate some or all of its authority to curate.
(4) (a) All collections recovered from lands owned or controlled by the state or its subdivisions shall be deposited at the museum, a curation facility, or at a repository within a reasonable time after the completion of field work.
(b) The museum shall make rules establishing procedures for selection of the appropriate curation facility or repository.
(c) The rules shall consider:
(i) whether the permittee, authorized pursuant to Section 9-8-305, is a curation facility;
(ii) the appropriateness of reburial;
(iii) the proximity of the curation facility or repository to the point of origin of the collection;
(iv) the preference of the owner of the land on which the collection was found;
(v) the nature of the collection and the repository's or curation facility's ability and desire to curate the collection in question, and ability to maximize the scientific, educational, and cultural benefits for the people of the state and the school and institutional trusts;
(vi) selection of a second curation facility or repository, if the original repository or curation facility becomes unable to curate the collections under its care; and
(vii) establishment of an arbitration process for the resolution of disputes over the location of a curation facility or repository, which shall include an ultimate arbitration authority consisting of the landowner, the state archaeologist or paleontologist, and a representative from the governor's office.
(d) The repository or curation facility may charge a curation fee commensurate with the costs of maintaining those collections, except that a fee may not be charged to the respective trust for collections found on school or institutional trust lands.
(5) The repository or curation facility shall make specimens available through loans to museums and research institutions in and out of the state when, in the opinion of the repository or curation facility:
(a) the use of the specimens is appropriate; and
(b) arrangements are made for safe custodianship of the specimens.
(6) The museum shall comply with the procedures of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding publication of its rules in the Utah State Bulletin and the Utah Administrative Code.
Section 790. Section 53C-1-201 is amended to read:
53C-1-201
. Creation of administration -- Purpose -- Director.(1) (a) There is established within state government the School and Institutional Trust Lands Administration.
(b) The administration shall manage all school and institutional trust lands and assets within the state, except as otherwise provided in Title 53C, Chapter 3, Deposit and Allocation of Revenue from Trust Lands, and Sections 51-7a-201 and 51-7a-202.
(2) The administration is an independent state agency and not a division of any other department.
(3) (a) It is subject to the usual legislative and executive department controls except as provided in this Subsection (3).
(b) (i) The director may make rules as approved by the board that allow the administration to classify a business proposal submitted to the administration as protected under Section [63-2-304] 63G-2-305, for as long as is necessary to evaluate the proposal.
(ii) The administration shall return the proposal to the party who submitted the proposal, and incur no further duties under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, if the administration determines not to proceed with the proposal.
(iii) The administration shall classify the proposal pursuant to law if it decides to proceed with the proposal.
(iv) Section [63-2-403] 63G-2-403 does not apply during the review period.
(c) The director shall make rules in compliance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, except that the director, with the board's approval, may establish a procedure for the expedited approval of rules, based on written findings by the director showing:
(i) the changes in business opportunities affecting the assets of the trust;
(ii) the specific business opportunity arising out of those changes which may be lost without the rule or changes to the rule;
(iii) the reasons the normal procedures under Section [63-46a-4] 63G-3-301 cannot be met without causing the loss of the specific opportunity;
(iv) approval by at least five board members; and
(v) that the director has filed a copy of the rule and a rule analysis, stating the specific reasons and justifications for its findings, with the Division of Administrative Rules and notified interested parties as provided in Subsection [63-46a-4] 63G-3-301(8).
(d) (i) The administration shall comply with Title 67, Chapter 19, Utah State Personnel Management Act, except as provided in this Subsection (3)(d).
(ii) The board may approve, upon recommendation of the director, that exemption for specific positions under Subsections 67-19-12(2) and 67-19-15(1) is required in order to enable the administration to efficiently fulfill its responsibilities under the law. The director shall consult with the executive director of the Department of Human Resource Management prior to making such a recommendation.
(iii) The positions of director, deputy director, associate director, assistant director, legal counsel appointed under Section 53C-1-305, administrative assistant, and public affairs officer are exempt under Subsections 67-19-12(2) and 67-19-15(1).
(iv) Salaries for exempted positions, except for the director, shall be set by the director, after consultation with the executive director of the Department of Human Resource Management, within ranges approved by the board. The board and director shall consider salaries for similar positions in private enterprise and other public employment when setting salary ranges.
(v) The board may create an annual incentive and bonus plan for the director and other administration employees designated by the board, based upon the attainment of financial performance goals and other measurable criteria defined and budgeted in advance by the board.
(e) The administration shall comply with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, except where the board approves, upon recommendation of the director, exemption from the Utah Procurement Code, and simultaneous adoption of rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for procurement, which enable the administration to efficiently fulfill its responsibilities under the law.
(f) (i) The board and director shall review the exceptions under this Subsection (3) and make recommendations for any modification, if required, which the Legislature would be asked to consider during its annual general session.
(ii) The board and director may include in their recommendations any other proposed exceptions from the usual executive and legislative controls the board and director consider necessary to accomplish the purpose of this title.
(4) The administration is managed by a director of school and institutional trust lands appointed by a majority vote of the board of trustees with the consent of the governor.
(5) (a) The board of trustees shall provide policies for the management of the administration and for the management of trust lands and assets.
(b) The board shall provide policies for the ownership and control of Native American remains that are discovered or excavated on school and institutional trust lands in consultation with the Division of Indian Affairs and giving due consideration to Title 9, Chapter 9, Part 4, Native American Grave Protection and Repatriation Act. The director may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement policies provided by the board regarding Native American remains.
(6) In connection with joint ventures for the development of trust lands and minerals approved by the board under Sections 53C-1-303 and 53C-2-401, the administration may become a member of a limited liability company under Title 48, Chapter 2c, Utah Revised Limited Liability Company Act, and is considered a person under Section 48-2c-102.
Section 791. Section 53C-1-202 is amended to read:
53C-1-202
. Board of trustees membership -- Nomination list -- Qualifications -- Terms -- Replacement -- Chair -- Quorum.(1) There is established the School and Institutional Trust Lands Board of Trustees.
(2) The board shall consist of seven members appointed on a nonpartisan basis by the governor with the consent of the Senate for nonconsecutive six-year terms.
(3) (a) Of the initial appointments to the board, the governor shall appoint one member to serve a six-year term, one member to serve a five-year term, one member to serve a four-year term, one member to serve a three-year term, one member to serve a two-year term, and one member to serve a one-year term.
(b) All subsequent appointments shall be for a term of six years, except if a vacancy occurs, the governor shall appoint a replacement, following the procedures set forth in Subsections (2), (4), (5), and (6), to fill the unexpired term.
(c) Any member of the board who has served less than six years upon the expiration of that member's term is eligible for a consecutive reappointment.
(d) Neither the term provision in Subsection (2) nor Subsection (3) applies to an appointment made under Subsection (5).
(4) (a) The governor shall select six of the seven appointees to the board from a nomination list of at least two candidates for each position or vacancy submitted pursuant to Section 53C-1-203.
(b) The governor may request an additional nomination list of at least two candidates from the nominating committee if the initial list of candidates for a given position is unacceptable.
(c) (i) If the governor fails to select an appointee within 60 days after receipt of the initial list or within 60 days after the receipt of an additional list, the nominating committee shall make an interim appointment by majority vote.
(ii) The interim appointee shall serve until the matter is resolved by the committee and the governor or until replaced pursuant to this chapter.
(5) (a) The governor may appoint one member without requiring a nomination list.
(b) The member appointed under Subsection (5)(a) serves at the pleasure of the governor.
(6) (a) Each board candidate shall possess outstanding professional qualifications pertinent to the purposes and activities of the trust.
(b) The board shall represent the following areas of expertise:
(i) nonrenewable resource management or development;
(ii) renewable resource management or development; and
(iii) real estate.
(c) Other qualifications which are pertinent for membership to the board are expertise in any of the following areas:
(i) business;
(ii) investment banking;
(iii) finance;
(iv) trust administration;
(v) asset management; and
(vi) the practice of law in any of the areas referred to in Subsections (6)(b) and (6)(c)(i) through (v).
(7) The board of trustees shall select a chair from its membership.
(8) Before assuming a position on the board, each member shall take an oath of office.
(9) Four members of the board constitute a quorum for the transaction of business.
(10) The governor or five board members may, for cause, remove a member of the board.
(11) An aggrieved party to a final action by the board may obtain judicial review of that action under Sections [63-46b-15] 63G-4-402 and [63-46b-16] 63G-4-403.
Section 792. Section 53C-1-304 is amended to read:
53C-1-304
. Rules to ensure procedural due process -- Board review of director action -- Judicial review.(1) The board shall make rules to ensure procedural due process in the resolution of complaints concerning actions by the board, director, and the administration.
(2) An aggrieved party to a final action by the director or the administration may petition the board for administrative review of the decision.
(3) (a) The board may appoint a qualified hearing examiner for purposes of taking evidence and making recommendations for board action.
(b) The board shall consider the recommendations of the examiner in making decisions.
(4) (a) The board shall uphold the decision of the director or the administration unless it finds, by a preponderance of the evidence, that the decision violated applicable law, policy, or rules.
(b) The board shall base its final actions on findings and conclusions and shall inform the aggrieved party of its right to judicial review.
(5) An aggrieved party to a final action by the board may obtain judicial review of that action under Sections [63-46b-15] 63G-4-402 and [63-46b-16] 63G-4-403.
Section 793. Section 53C-2-201 is amended to read:
53C-2-201
. Planning procedures -- Assistance from other state agencies -- Plans consistent with trust responsibilities.(1) The director:
(a) shall develop rules describing the degree of planning necessary for each category of activity on trust lands; and
(b) may request other state agencies to generate technical data or other support services for the development and implementation of trust lands plans.
(2) The plans for school and institutional trust lands shall be:
(a) developed in a manner consistent with the director's responsibility to insure that the interest of the trust beneficiaries is paramount; and
(b) if required by rule, approved by the board.
(3) The director shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for notifying and consulting with interested parties under this section.
(4) Subject to Subsection (1), the development of a written plan is not a prerequisite to actions by the director.
Section 794. Section 54-1-2.5 is amended to read:
54-1-2.5
. Procedures -- Adjudicative proceedings.Except as specifically provided to the contrary in Chapter 7, the commission shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 795. Section 54-3-28 is amended to read:
54-3-28
. Notice required of certain public utilities before preparing or amending a long-range plan or acquiring certain property.(1) As used in this section:
(a) (i) "Affected entity" means each county, municipality, local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, special service district, school district, interlocal cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, and specified public utility:
(A) whose services or facilities are likely to require expansion or significant modification because of expected uses of land under a proposed long-range plan or under proposed amendments to a long-range plan; or
(B) that has filed with the specified public utility a copy of the general or long-range plan of the county, municipality, local district, special service district, school district, interlocal cooperation entity, or specified public utility.
(ii) "Affected entity" does not include the specified public utility that is required under Subsection (2) to provide notice.
(b) "Specified public utility" means an electrical corporation, gas corporation, or telephone corporation, as those terms are defined in Section 54-2-1.
(2) (a) If a specified public utility prepares a long-range plan regarding its facilities proposed for the future in a county of the first or second class or amends an already existing long-range plan, the specified public utility shall, before preparing a long-range plan or amendments to an existing long-range plan, provide written notice, as provided in this section, of its intent to prepare a long-range plan or to amend an existing long-range plan.
(b) Each notice under Subsection (2) shall:
(i) indicate that the specified public utility intends to prepare a long-range plan or to amend a long-range plan, as the case may be;
(ii) describe or provide a map of the geographic area that will be affected by the long-range plan or amendments to a long-range plan;
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries is located the land on which the proposed long-range plan or amendments to a long-range plan are expected to indicate that the proposed facilities will be located;
(B) each affected entity;
(C) the Automated Geographic Reference Center created in Section 63F-1-506;
(D) each association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or municipality described in Subsection (2)(b)(iii)(A) is a member; and
(E) the state planning coordinator appointed under Section [63-38d-202] 63J-4-202;
(iv) with respect to the notice to counties and municipalities described in Subsection (2)(b)(iii)(A) and affected entities, invite them to provide information for the specified public utility to consider in the process of preparing, adopting, and implementing the long-range plan or amendments to a long-range plan concerning:
(A) impacts that the use of land proposed in the proposed long-range plan or amendments to a long-range plan may have on the county, municipality, or affected entity; and
(B) uses of land that the county, municipality, or affected entity is planning or considering that may conflict with the proposed long-range plan or amendments to a long-range plan; and
(v) include the address of an Internet website, if the specified public utility has one, and the name and telephone number of a person where more information can be obtained concerning the specified public utility's proposed long-range plan or amendments to a long-range plan.
(3) (a) Except as provided in Subsection (3)(d), each specified public utility intending to acquire real property in a county of the first or second class for the purpose of expanding its infrastructure or other facilities used for providing the services that the specified public utility is authorized to provide shall provide written notice, as provided in this Subsection (3), of its intent to acquire the property if the intended use of the property is contrary to:
(i) the anticipated use of the property under the county or municipality's general plan; or
(ii) the property's current zoning designation.
(b) Each notice under Subsection (3)(a) shall:
(i) indicate that the specified public utility intends to acquire real property;
(ii) identify the real property; and
(iii) be sent to:
(A) each county in whose unincorporated area and each municipality in whose boundaries the property is located; and
(B) each affected entity.
(c) A notice under this Subsection (3) is a protected record as provided in Subsection [63-2-304] 63G-2-305(7).
(d) (i) The notice requirement of Subsection (3)(a) does not apply if the specified public utility previously provided notice under Subsection (2) identifying the general location within the municipality or unincorporated part of the county where the property to be acquired is located.
(ii) If a specified public utility is not required to comply with the notice requirement of Subsection (3)(a) because of application of Subsection (3)(d)(i), the specified public utility shall provide the notice specified in Subsection (3)(a) as soon as practicable after its acquisition of the real property.
Section 796. Section 54-5-1.5 is amended to read:
54-5-1.5
. Special regulation fee -- Supplemental Levy Committee -- Supplemental fee -- Fee for electrical cooperatives.(1) (a) A special fee to defray the cost of regulation is imposed upon all public utilities subject to the jurisdiction of the Public Service Commission.
(b) The special fee is in addition to any charge now assessed, levied, or required by law.
(2) (a) The executive director of the Department of Commerce shall determine the special fee for the Department of Commerce.
(b) The chair of the Public Service Commission shall determine the special fee for the Public Service Commission.
(c) The fee shall be assessed as a uniform percentage of the gross operating revenue for the preceding calendar year derived from each public utility's business and operations during that period within this state, excluding income derived from interstate business. Gross operating revenue shall not include income to a wholesale electric cooperative derived from the sale of power to a rural electric cooperative which resells that power within the state.
(3) (a) The executive director of the Department of Commerce shall notify each public utility subject to the provisions of this chapter of the amount of the fee.
(b) The fee is due and payable on or before July 1 of each year.
(4) (a) It is the intent of the Legislature that the public utilities provide all of the funds for the administration, support, and maintenance of:
(i) the Public Service Commission;
(ii) state agencies within the Department of Commerce involved in the regulation of public utilities; and
(iii) expenditures by the attorney general for utility regulation.
(b) Notwithstanding Subsection (4)(a), the fee imposed by Subsection (1) shall not exceed the greater of:
(i) (A) for a public utility other than an electrical cooperative, .3% of the public utility's gross operating revenues for the preceding calendar year; or
(B) for an electrical cooperative, .15% of the electrical cooperative's gross operating revenues for the preceding calendar year; or
(ii) $50.
(5) (a) There is created a Supplemental Levy Committee to levy additional assessments on public utilities when unanticipated costs of regulation occur in any fiscal year.
(b) The Supplemental Levy Committee shall consist of:
(i) one member selected by the executive director of the Department of Commerce;
(ii) one member selected by the chairman of the Public Service Commission;
(iii) two members selected by the three public utilities that paid the largest percent of the current regulatory fee; and
(iv) one member selected by the four appointed members.
(c) (i) The members of the Supplemental Levy Committee shall be selected within ten working days after the executive director of the Department of Commerce gives written notice to the Public Service Commission and the public utilities that a supplemental levy committee is needed.
(ii) If the members of the Supplemental Levy Committee have not been appointed within the time prescribed, the governor shall appoint the members of the Supplemental Levy Committee.
(d) (i) During any state fiscal year, the Supplemental Levy Committee, by a majority vote and subject to audit by the state auditor, may impose a supplemental fee on the regulated utilities for the purpose of defraying any increased cost of regulation.
(ii) The supplemental fee imposed upon the utilities shall equal a percentage of their gross operating revenue for the preceding calendar year.
(iii) The aggregate of all fees, including any supplemental fees assessed, shall not exceed .3% of the gross operating revenue of the utilities assessed for the preceding calendar year.
(iv) Payment of the supplemental fee is due within 30 days after receipt of the assessment.
(v) The utility may, within ten days after receipt of assessment, request a hearing before the Public Service Commission if it questions the need for, or the reasonableness of, the supplemental fee.
(e) (i) Any supplemental fee collected to defray the cost of regulation shall be transferred to the state treasurer as a departmental collection according to the provisions of Section [63-38-9] 63J-1-404.
(ii) Supplemental fees are excess collections, credited according to the procedures of Section [63-38-9] 63J-1-404.
(iii) Charges billed to the Department of Commerce by any other state department, institution, or agency for services rendered in connection with regulation of a utility shall be credited by the state treasurer from the special or supplemental fees collected to the appropriations account of the entity providing that service according to the procedures provided in [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
(6) (a) For purposes of this section, "electrical cooperative" means:
(i) a distribution electrical cooperative; or
(ii) a wholesale electrical cooperative.
(b) Subject to Subsection (6)(c), if the regulation of one or more electrical cooperatives causes unanticipated costs of regulation in a fiscal year, the commission may impose a supplemental fee on the one or more electrical cooperatives in this state responsible for the increased cost of regulation.
(c) The aggregate of all fees imposed under this section on an electrical cooperative in a calendar year shall not exceed the greater of:
(i) .3% of the electrical cooperative's gross operating revenues for the preceding calendar year; or
(ii) $50.
Section 797. Section 54-7-15 is amended to read:
54-7-15
. Review or rehearing by commission -- Application -- Procedure -- Prerequisite to court action -- Effect of commission decisions.(1) Before seeking judicial review of the commission's action, any party, stockholder, bondholder, or other person pecuniarily interested in the public utility who is dissatisfied with an order of the commission shall meet the requirements of this section.
(2) (a) After any order or decision has been made by the commission, any party to the action or proceeding, any stockholder, bondholder, or other party pecuniarily interested in the public utility affected may apply for rehearing of any matters determined in the action or proceeding.
(b) An applicant may not urge or rely on any ground not set forth in the application in an appeal to any court.
(c) Any application for rehearing not granted by the commission within 20 days is denied.
(d) (i) If the commission grants any application for rehearing without suspending the order involved, the commission shall issue its decision on rehearing within 20 days after final submission.
(ii) If the commission fails to render its decision on rehearing within 20 days, the order involved is affirmed.
(e) Unless an order of the commission directs that an order is stayed or postponed, an application for review or rehearing does not excuse any corporation or person from complying with and obeying any order or decision of the commission.
(3) Any order or decision on rehearing that abrogates, changes, or modifies an original order or decision has the same force and effect as an original order or decision, but does not affect any right, or the enforcement of any right, arising from the original order or decision unless so ordered by the commission.
(4) An order of the commission, including a decision on rehearing:
(a) shall have binding force and effect only with respect to a public utility that is an actual party to the proceeding in which the order is rendered; and
(b) does not determine any right, privilege, obligation, duty, constraint, burden, or responsibility with respect to a public utility that is not a party to the proceeding in which the order is rendered unless, in accordance with Subsection [63-46a-3] 63G-3-201(6), the commission makes a rule that incorporates the one or more principles of law that:
(i) are established by the order;
(ii) are not in commission rules at the time of the order; and
(iii) affect the right, privilege, obligation, duty, constraint, burden, or responsibility with respect to the public utility.
Section 798. Section 54-8b-2.1 is amended to read:
54-8b-2.1
. Competitive entry.(1) Notwithstanding any provision of Section 54-4-25 to the contrary, the commission may issue a certificate to a telecommunications corporation authorizing it to compete in providing local exchange services or other public telecommunications services in all or part of the service territory of an incumbent telephone corporation, except until December 31, 1997, a telecommunications corporation may not receive a certificate to compete in providing local exchange service within any local exchange with fewer than 5,000 access lines that is owned or controlled by an incumbent telephone corporation with fewer than 30,000 access lines in the state. The procedure specified in Subsection (3)(c) for excluding competition within a local exchange with fewer than 5,000 access lines shall apply on December 31, 1997 or thereafter.
(2) The commission shall issue a certificate to the applying telecommunications corporation if the commission determines that:
(a) the applicant has sufficient technical, financial, and managerial resources and abilities to provide the public telecommunications services applied for; and
(b) the issuance of the certificate to the applicant is in the public interest.
(3) (a) The commission shall process the application in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Each telecommunications corporation holding a certificate to provide public telecommunications service within the geographic area where an applicant is seeking to provide telecommunications service shall be provided notice of the application and granted automatic status as an intervenor.
(c) An intervening incumbent telephone corporation serving fewer than 30,000 access lines in the state may petition the commission to exclude from an application filed pursuant to Subsection (1) any local exchange with fewer than 5,000 access lines that is owned or controlled by the intervening incumbent telephone corporation. Upon finding that the action is consistent with the public interest, the commission shall order that the application exclude such local exchange.
(d) The commission shall approve or deny the application under this section within 240 days after it is filed. If the commission has not acted on an application within 240 days, the application is considered granted.
(4) If the commission issues a certificate to a competitive telecommunications corporation to provide local exchange services in a local exchange that has fewer than 5,000 lines and that is controlled by an incumbent telephone corporation with fewer than 30,000 access lines in the state, the commission shall impose an obligation upon the competitive telecommunications corporation to provide public telecommunications services to any customer or class of customers who requests service within the local exchange. The competing telecommunications corporation's obligation to serve shall be no greater than that of the incumbent telephone corporation.
(5) An incumbent telephone corporation with fewer than 30,000 access lines in the state may not be required to become a carrier of intrastate toll services.
Section 799. Section 54-8b-10 is amended to read:
54-8b-10
. Imposing a surcharge to provide hearing and speech impaired persons with telecommunication devices -- Definitions -- Procedures for establishing program -- Surcharge -- Administration and disposition of surcharge moneys.(1) As used in this section:
(a) "Certified deaf or severely hearing or speech impaired person" means any state resident who:
(i) is so certified by:
(A) a licensed physician;
(B) an otolaryngologist;
(C) a speech language pathologist;
(D) an audiologist; or
(E) a qualified state agency; and
(ii) qualifies for assistance under any low income public assistance program administered by a state agency.
(b) "Certified interpreter" means a person who is a certified interpreter under Title 53A, Chapter 26a, Interpreter Services for the Hearing Impaired Act.
(c) (i) "Telecommunication device" means any mechanical adaptation device that enables a deaf or severely hearing or speech impaired person to use the telephone.
(ii) "Telecommunication device" includes:
(A) telecommunication devices for the deaf (TDD);
(B) telephone amplifiers;
(C) telephone signal devices;
(D) artificial larynxes; and
(E) adaptive equipment for TDD keyboard access.
(2) The commission shall hold hearings to establish a program whereby any certified deaf or severely hearing or speech impaired customer of a telephone corporation that provides service through a local exchange or of a wireless telecommunications provider may obtain a telecommunication device capable of serving the customer at no charge to the customer beyond the rate for basic service.
(3) (a) The program described in Subsection (2) shall provide a dual party relay system using third party intervention to connect a certified deaf or severely hearing or speech impaired person with a normal hearing person by way of telecommunication devices designed for that purpose.
(b) The commission may, by rule, establish the type of telecommunications device to be provided to ensure functional equivalence.
(4) (a) The commission shall impose a surcharge on each residence and business access line of each customer to the local exchange of any telephone corporation providing such lines in this state to cover the costs of:
(i) the program described in Subsection (2); and
(ii) payments made under Subsection (5).
(b) The commission shall establish by rule the amount to be charged under this section, which may not exceed 25 cents per residence and business access line.
(c) The telephone corporation shall collect the surcharge from its customers and transfer the money collected to the commission under rules adopted by the commission.
(d) The surcharge shall be separately identified on customer bills.
(5) (a) Any money collected from the surcharge imposed under Subsection (4) shall be deposited in the state treasury as dedicated credits to be administered as determined by the Public Service Commission.
(b) These dedicated credits may be used only:
(i) for the purchase, maintenance, repair, and distribution of telecommunication devices;
(ii) for the acquisition, operation, maintenance, and repair of a dual party relay system;
(iii) to reimburse telephone corporations for the expenses incurred in collecting and transferring to the commission the surcharge imposed by the commission;
(iv) for the general administration of the program;
(v) to train persons in the use of telecommunications devices; and
(vi) by the commission to contract, in compliance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, with:
(A) an institution within the state system of higher education listed in Section 53B-1-102 for a program approved by the Board of Regents that trains persons to qualify as certified interpreters; or
(B) the Division of Services to the Deaf and Hard of Hearing for a program that trains persons to qualify as certified interpreters.
(c) (i) The commission shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the administration of monies under Subsection (5)(b)(vi).
(ii) In the initial rulemaking to determine the administration of monies under Subsection (5)(b)(vi), the commission shall give notice and hold a public hearing.
(d) Monies received by the commission under Subsection (4) are nonlapsing.
(6) (a) The telephone surcharge need not be collected by a local exchange company if the amount collected would be less than the actual administrative costs of the collection.
(b) If Subsection (6)(a) applies, the local exchange company shall submit to the commission, in lieu of the revenue from the surcharge collection, a breakdown of the anticipated costs and the expected revenue from the collection, showing that the costs exceed the revenue.
(7) The commission shall solicit the advice, counsel, and physical assistance of severely hearing or speech impaired persons and the organizations serving them in the design and implementation of the program.
Section 800. Section 54-14-104 is amended to read:
54-14-104
. Rules and procedures.The board may, pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, adopt rules governing proceedings under this chapter consistent with this chapter and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 801. Section 54-14-307 is amended to read:
54-14-307
. Stay of board's decision pending review or appeal.(1) A petition for review, rehearing, or reconsideration or a petition for judicial review does not stay or suspend the effectiveness of a written decision of the board.
(2) Any party seeking to stay the effectiveness of a decision of the board shall seek a stay under Section [63-46b-18] 63G-4-405.
Section 802. Section 54-17-102 is amended to read:
54-17-102
. Definitions.As used in this chapter:
(1) "Affected electrical utility" means an electrical corporation with at least 200,000 retail customers in the state.
(2) "Benchmark option" means an energy resource against which bids in an open bid process may be evaluated that:
(a) could be constructed or owned by:
(i) an affected electrical utility; or
(ii) an affiliate of an affected electrical utility; or
(b) may be a purchase of:
(i) electricity;
(ii) electric generating capacity; or
(iii) electricity and electric generating capacity.
(3) "Integrated resource plan" means a plan that contains:
(a) the demand and energy forecast by the affected electrical utility for at least a ten-year period;
(b) the affected electrical utility's options for meeting the requirements shown in its load and resource forecast in an economic and reliable manner, including:
(i) demand-side and supply-side options; and
(ii) a brief description and summary cost-benefit analysis, if available, of each option that was considered;
(c) the affected electrical utility's assumptions and conclusions with respect to the effect of the plan on the cost and reliability of energy service;
(d) a description of the external environmental and economic consequences of the plan to the extent practicable; and
(e) any other data and analyses as the commission may require.
(4) "Significant energy resource" for an affected electrical utility means a resource that consists of:
(a) a total of 100 megawatts or more of new generating capacity that has a dependable life of ten or more years;
(b) a purchase of the following if the contract is for a term of ten or more years and not less than 100 megawatts:
(i) electricity;
(ii) electric generating capacity; or
(iii) electricity and electrical generating capacity;
(c) the purchase or lease by an affected electrical utility from an affiliated company of:
(i) a generating facility;
(ii) electricity;
(iii) electrical generating capacity; or
(iv) electricity and electrical generating capacity;
(d) a contract with an option for the affected electrical utility or an affiliate to purchase a resource that consists of not less than 100 megawatts or more of new generating capacity that has a remaining dependable life of ten or more years; or
(e) a type of resource designated by the commission as a significant energy resource in rules made by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, after considering the affected electrical utility's integrated resource plan and action plan.
(5) "Solicitation" means a request for proposals or other invitation for persons to submit a bid or proposal through an open bid process for construction or acquisition of a significant energy resource.
Section 803. Section 54-17-103 is amended to read:
54-17-103
. Rulemaking.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission:
(a) shall make rules when required by this chapter; and
(b) in addition to the rules required under Subsection (1)(a), may make rules necessary for the implementation of this chapter.
(2) Notwithstanding a requirement that the commission make rules, the commission may take action under this chapter before the commission makes a required rule including:
(a) approving a solicitation process under Part 2, Solicitation Process;
(b) approving a significant energy resource under Section 54-17-302;
(c) issuing an order under Section 54-17-304 regarding whether an affected electrical utility should proceed with implementing a significant energy resource decision;
(d) approving an energy resource under Section 54-17-402; or
(e) issuing an order under Section 54-17-404 regarding whether an energy utility should proceed with implementing a resource decision.
Section 804. Section 54-17-201 is amended to read:
54-17-201
. Solicitation process required -- Exception.(1) (a) An affected electrical utility shall comply with this chapter to acquire or construct a significant energy resource after February 25, 2005.
(b) Notwithstanding Subsection (1)(a), this chapter does not apply to a significant energy resource for which the affected electrical utility has issued a solicitation before February 25, 2005.
(2) (a) Except as provided in Subsection (3), to acquire or construct a significant energy resource, an affected electrical utility shall conduct a solicitation process that is approved by the commission.
(b) To obtain the approval of the commission of a solicitation process, the affected electrical utility shall file with the commission a request for approval that includes:
(i) a description of the solicitation process the affected electrical utility will use;
(ii) a complete proposed solicitation; and
(iii) any other information the commission requires by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) In ruling on the request for approval of a solicitation process, the commission shall determine whether the solicitation process:
(i) complies with this chapter and rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(ii) is in the public interest taking into consideration:
(A) whether it will most likely result in the acquisition, production, and delivery of electricity at the lowest reasonable cost to the retail customers of an affected electrical utility located in this state;
(B) long-term and short-term impacts;
(C) risk;
(D) reliability;
(E) financial impacts on the affected electrical utility; and
(F) other factors determined by the commission to be relevant.
(d) Before approving a solicitation process under this section the commission:
(i) may hold a public hearing; and
(ii) shall provide an opportunity for public comment.
(e) As part of its review of a solicitation process, the commission may provide the affected electrical utility guidance on any additions or changes to its proposed solicitation process.
(f) Unless the commission determines that additional time to analyze a solicitation process is warranted and is in the public interest, within 90 days of the day on which the affected electrical utility files a request for approval of the solicitation process, the commission shall:
(i) approve a proposed solicitation process;
(ii) suggest modifications to a proposed solicitation process; or
(iii) reject a proposed solicitation process.
(3) Notwithstanding Subsection (2), an affected electrical utility may acquire or construct a significant energy resource without conducting a solicitation process if it obtains a waiver of the solicitation requirement in accordance with Section 54-17-501.
(4) In accordance with the commission's authority under Subsection 54-12-2(2), the commission shall determine:
(a) whether this chapter or another competitive bidding procedure shall apply to a purchase of a significant energy resource by an affected electrical utility from a small power producer or cogenerator; and
(b) if this chapter applies as provided in Subsection (4)(a), the manner in which this chapter applies to a purchase of a significant energy resource by an affected electrical utility from a small power producer or cogenerator.
Section 805. Section 54-17-202 is amended to read:
54-17-202
. Requirements for solicitation.(1) The commission shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, outlining the requirements for a solicitation process. The rules required by this Subsection (1) shall include:
(a) the type of screening criteria an affected electrical utility may use in a solicitation process including the risks an affected electrical utility may consider;
(b) the required disclosures by an affected electrical utility if a solicitation includes a benchmark option;
(c) the required disclosures by an affected electrical utility related to the methodology the affected electrical utility uses to evaluate bids; and
(d) the participation of an independent evaluator in a manner consistent with Section 54-17-203.
(2) If an affected electrical utility is subject to regulation in more than one state regarding the acquisition, construction, or cost recovery of a significant energy resource, in making the rules required by Subsection (1), the commission may consider the impact of the multistate regulation including requirements imposed by other states as to:
(a) the solicitation process;
(b) cost recovery of resources; and
(c) methods by which the affected electrical utility may be able to mitigate the potential for cost disallowances.
Section 806. Section 54-17-203 is amended to read:
54-17-203
. Independent evaluator.(1) (a) The commission shall:
(i) appoint an independent evaluator to monitor any solicitation conducted by an affected electrical utility under this chapter; and
(ii) oversee or direct the division to oversee the independent evaluator in monitoring any solicitation conducted by an affected electrical utility under this chapter.
(b) The commission, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Procedures Act, shall make rules setting the qualifications of an independent evaluator.
(2) The commission shall determine the method used to pay the fees and expenses for the independent evaluator which may include:
(a) the payment of a bid fee by bidders to a solicitation; or
(b) (i) requiring the affected electrical utility to pay the fees and expenses; and
(ii) permitting an affected electrical utility to recover the amounts paid under this Subsection (2)(b).
(3) (a) The independent evaluator may not make the decision as to which bid should be awarded under the solicitation.
(b) The independent evaluator shall:
(i) actively monitor the solicitation process for fairness and compliance with commission rules;
(ii) report regularly to:
(A) the commission; and
(B) others as directed by the commission;
(iii) develop one or more reports addressing:
(A) the solicitation process;
(B) any concerns of the independent evaluator related to the solicitation process; and (C) the ultimate results of the solicitation process, including the opinions and conclusions of the independent evaluator;
(iv) provide ongoing input regarding issues, concerns, and improvements in the solicitation process with the objective of correcting ongoing deficiencies in the solicitation process to the following:
(A) the commission;
(B) the affected electrical utility; and
(C) others as directed by the commission;
(v) render an opinion as to whether:
(A) the solicitation process is:
(I) fair; and
(II) in compliance with this part; and
(B) any modeling used by the affected electrical utility to evaluate bids is sufficient;
(vi) testify in any proceeding under Section 54-17-302; and
(vii) perform other functions and provide other input and reports as the commission may direct, including periodic presentations to interested parties regarding the solicitation process.
Section 807. Section 54-17-301 is amended to read:
54-17-301
. Review of integrated resource plan action plans.(1) An affected electrical utility shall file with the commission any action plan developed as part of the affected electrical utility's integrated resource plan to enable the commission to review and provide guidance to the affected electrical utility.
(2) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing a process for its review of an action plan.
(b) The rules required under Subsection (2)(a) shall provide sufficient flexibility to permit changes in an action plan between the periodic filings of the affected electrical utility's integrated resource plan.
Section 808. Section 54-17-302 is amended to read:
54-17-302
. Approval of a significant energy resource decision required.(1) If pursuant to Part 2, Solicitation Process, an affected electrical utility is required to conduct a solicitation for a significant energy resource or obtains a waiver of the requirement to conduct a solicitation under Section 54-17-501, but does not obtain a waiver of the requirement to obtain approval of the significant energy resource decision under Section 54-17-501, the affected electrical utility shall obtain approval of its significant energy resource decision:
(a) after the completion of the solicitation process, if the affected electrical utility is required to conduct a solicitation; and
(b) before an affected electrical utility may construct or enter into a binding agreement to acquire the significant energy resource.
(2) (a) To obtain the approval required by Subsection (1), the affected electrical utility shall file a request for approval with the commission.
(b) The request for approval required by this section shall include any information required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) In ruling on a request for approval of a significant energy resource decision, the commission shall determine whether the significant energy resource decision:
(a) is reached in compliance with this chapter and rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) (i) is reached in compliance with the solicitation process approved by the commission in accordance with Part 2, Solicitation Process; or
(ii) is reached after the waiver of the solicitation process as provided in Subsection 54-17-201(3); and
(c) is in the public interest, taking into consideration:
(i) whether it will most likely result in the acquisition, production, and delivery of electricity at the lowest reasonable cost to the retail customers of an affected electrical utility located in this state;
(ii) long-term and short-term impacts;
(iii) risk;
(iv) reliability;
(v) financial impacts on the affected electrical utility; and
(vi) other factors determined by the commission to be relevant.
(4) The commission may not approve a significant energy resource decision under this section before holding a public hearing.
(5) Unless the commission determines that additional time to analyze a significant energy resource decision is warranted and is in the public interest, within 180 days of the day on which the affected electrical utility files a request for approval, the commission shall:
(a) approve the significant energy resource decision;
(b) approve the significant energy resource decision subject to conditions imposed by the commission; or
(c) disapprove the significant energy resource decision.
(6) The commission shall include in its order under this section:
(a) findings as to the total projected costs for construction or acquisition of an approved significant energy resource; and
(b) the basis upon which the findings described in Subsection (6)(a) are made.
(7) Notwithstanding any other provision of this part, an affected electrical utility may acquire a significant energy resource without obtaining approval pursuant to this section if it obtains a waiver of the requirement for approval in accordance with Section 54-17-501.
(8) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules regarding the process for approval of a significant energy resource decision under this section.
Section 809. Section 54-17-304 is amended to read:
54-17-304
. Order to proceed.(1) (a) In the event of a change in circumstances or projected costs, an affected electrical utility may seek a commission review and determination of whether the affected electrical utility should proceed with the implementation of an approved significant energy resource decision.
(b) In making a determination under this Subsection (1), the commission shall use the standards identified in Subsection 54-17-302(3)(c).
(c) Before making a determination under this Subsection (1) the commission:
(i) may hold a public hearing; and
(ii) shall provide an opportunity for public comment.
(2) Unless the commission determines that additional time is warranted and is in the public interest, within 60 days of the day on which the affected electrical utility files a request for commission review and determination under this section, the commission shall:
(a) issue an order:
(i) determining that the affected electrical utility should proceed with the implementation of the significant energy resource decision;
(ii) making findings as to the total projected costs for construction or acquisition of the approved significant energy resource; and
(iii) stating the basis upon which the findings described in Subsection (2)(a)(ii) are made; or
(b) issue an order determining that the affected electrical utility should not proceed with the implementation of the significant energy resource decision.
(3) If the commission determines that the affected electrical utility should proceed with the implementation of the approved significant energy resource decision, the commission shall, in a general rate case or other appropriate commission proceeding, include in the affected electrical utility's retail electric rates the state's share of costs:
(a) relevant to that proceeding;
(b) incurred by the affected electrical utility in constructing or acquiring the approved significant energy resource; and
(c) up to the projected costs as specified in the commission's order issued under Subsection (2)(a).
(4) If the commission determines that the affected electrical utility should not proceed with the implementation of the approved significant energy resource decision, the commission shall, in a general rate case or other appropriate commission proceeding, include in the affected electrical utility's retail electric rates the state's share of costs:
(a) relevant to that proceeding; and
(b) incurred by the affected electrical utility in constructing or acquiring the approved significant energy resource before issuance of a determination not to proceed, including any prudently incurred costs of terminating the approved significant energy resource decision.
(5) A commission order under this section not to proceed with the implementation of a significant energy resource may not prejudice:
(a) the right of an affected electrical utility to:
(i) continue to implement the significant energy resource decision; and
(ii) seek recovery of costs incurred after a determination not to proceed in a future rate proceeding; or
(b) the right of any other party to support or oppose recovery of costs sought under Subsection (5)(a)(ii).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules regarding the process for the commission's review and determination on a request for an order to proceed under this section.
Section 810. Section 54-17-401 is amended to read:
54-17-401
. Definitions.As used in this part:
(1) "Energy utility" means one of the following with 200,000 retail customers in the state:
(a) an electrical corporation; or
(b) a gas corporation.
(2) (a) "Resource decision" means a decision, other than a decision to construct or acquire a significant energy resource, involving:
(i) an energy utility's acquisition, management, or operation of energy production, processing, transmission, or distribution facilities or processes including:
(A) a facility or process for the efficient, reliable, or safe provision of energy to retail customers; or
(B) an energy efficiency and conservation program; or
(ii) a decision determined by the commission to be appropriate for review under this part.
(b) The commission may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to specify the nature of resource decisions subject to approval under Section 54-17-402.
Section 811. Section 54-17-402 is amended to read:
54-17-402
. Request for review of resource decision.(1) Beginning on February 25, 2005, before implementing a resource decision, an energy utility may request that the commission approve all or part of a resource decision in accordance with this part.
(2) (a) To obtain the approval permitted by Subsection (1), the energy utility shall file a request for approval with the commission.
(b) The request for approval required by this section shall include any information required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) In ruling on a request for approval of a resource decision, the commission shall determine whether the decision:
(a) is reached in compliance with this chapter and rules made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(b) is in the public interest, taking into consideration:
(i) whether it will most likely result in the acquisition, production, and delivery of utility services at the lowest reasonable cost to the retail customers of an energy utility located in this state;
(ii) long-term and short-term impacts;
(iii) risk;
(iv) reliability;
(v) financial impacts on the energy utility; and
(vi) other factors determined by the commission to be relevant.
(4) (a) If the commission approves a proposed resource decision only in part, the commission shall explain in the order issued under this section why the commission does not approve the resource decision in total.
(b) Recovery of expenses incurred in connection with parts of a resource decision that are not approved is subject to the review of the commission as part of a rate hearing under Section 54-7-12.
(5) The commission may not approve a resource decision in whole or in part under this section before holding a public hearing.
(6) Unless the commission determines that additional time to analyze a resource decision is warranted and is in the public interest, within 180 days of the day on which the energy utility files a request for approval, the commission shall:
(a) approve all or part of the resource decision;
(b) approve all or part of the resource decision subject to conditions imposed by the commission; or
(c) disapprove all or part of the resource decision.
(7) The commission shall include in its order under this section:
(a) findings as to the approved projected costs of a resource decision; and
(b) the basis upon which the findings described in Subsection (7)(a) are made.
(8) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules regarding the process for approval of a resource decision under this section.
Section 812. Section 54-17-404 is amended to read:
54-17-404
. Order to proceed.(1) (a) In the event of a change in circumstances or projected costs, an energy utility may seek a commission review and determination of whether the energy utility should proceed with the implementation of an approved resource decision.
(b) In making a determination under this Subsection (1), the commission shall use the standards identified in Subsection 54-17-402(3)(b).
(c) Before making a determination under this Subsection (1) the commission:
(i) may hold a public hearing; and
(ii) shall provide an opportunity for public comment.
(2) Unless the commission determines that additional time is warranted and is in the public interest, within 60 days of the day on which the energy utility files a request for commission review and determination under this section, the commission shall:
(a) issue an order:
(i) determining that the energy utility should proceed with the implementation of the resource decision;
(ii) making findings as to the total projected costs of the approved resource decision; and
(iii) stating the basis upon which the findings described in Subsection (2)(a)(ii) are made; or
(b) issue an order determining that the energy utility should not proceed with the implementation of the resource decision.
(3) If the commission determines that the energy utility should proceed with the implementation of the approved resource decision, the commission shall, in a general rate case or other appropriate commission proceeding, include in the energy utility's retail rates the state's share of costs:
(a) relevant to that proceeding;
(b) incurred by the energy utility in implementing the approved resource decision; and
(c) up to the projected costs as specified in the commission's order issued under Subsection (2)(a).
(4) If the commission determines that the energy utility should not proceed with the implementation of the approved resource decision, the commission shall, in a general rate case or other appropriate commission proceeding, include in the energy utility's retail rates the state's share of costs:
(a) relevant to that proceeding; and
(b) incurred by the energy utility in implementing the approved resource decision before issuance of a determination not to proceed, including any prudently incurred costs of terminating the approved resource decision.
(5) A commission order under this section not to proceed with the implementation of a resource decision may not prejudice:
(a) the right of an energy utility to:
(i) continue to implement the resource decision; and
(ii) seek recovery of costs incurred after a determination not to proceed in a future rate proceeding; or
(b) the right of any other party to support or oppose the recovery sought under Subsection (5)(a)(ii).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules regarding the process for the commission's review and determination on a request for an order to proceed under this section.
Section 813. Section 54-17-501 is amended to read:
54-17-501
. Waiver of requirement for solicitation or approval.(1) An affected electrical utility may obtain a waiver of the requirement that it conduct a solicitation process under Part 2, Solicitation Process, or the requirement that it obtain approval of a significant energy resource decision under Part 3, Resource Plans and Significant Energy Resource Approval, if the commission determines that waiving the requirement is in the public interest because there exists:
(a) a clear emergency;
(b) a time-limited commercial or technical opportunity that provides value to the customers of the affected electrical utility; or
(c) any other factor that makes waiving the requirement in the public interest.
(2) To obtain a finding from the commission under Subsection (1), the affected electrical utility shall, as soon as practicable after learning of the existence of a circumstance specified in Subsection (1):
(a) file a verified application with the commission; and
(b) serve an electronic and paper copy of the verified application, including all associated exhibits and attachments, on each person reflected on a list to be maintained and published by the commission on its Internet website that has requested service of waiver requests and has signed a generic protective order issued by the commission limiting the use of information contained in or attached to a waiver request.
(3) A verified application filed pursuant to Subsection (2) shall:
(a) identify any waiver requested;
(b) explain the basis for each waiver requested;
(c) specify any time sensitivity associated with the verified application;
(d) explain why the waiver requested is in the public interest; and
(e) contain other information required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) Upon receipt of a verified application filed under Subsection (2), the commission shall, before the end of the next business day, provide public notice of a technical conference to be held no sooner than three business days and no later than seven calendar days following the day on which the verified application is filed and served.
(5) (a) At the technical conference held under Subsection (4), the affected electrical utility shall provide adequate support for its verified application and shall respond to questions of the commission, an independent evaluator if one is participating, and any other interested person.
(b) The commission shall prepare and retain a transcript of the technical conference.
(6) No less than three business days and no more than seven calendar days following the technical conference, the independent evaluator and any interested person may file and serve comments concerning the verified application.
(7) The commission shall issue a written decision either granting, granting with conditions, or denying each waiver requested no later than seven calendar days following the deadline for the independent evaluator and any interested person to file comments under Subsection (6).
(8) (a) If confidential or trade secret information is provided or used in the verified application, in the technical conference, in comments filed on the verified application or otherwise in the process, that information shall be clearly identified by the providing person as confidential and shall be provided on a confidential basis subject to the terms of a protective order issued by the commission.
(b) (i) The commission shall issue a generic protective order to govern access to and use of confidential information in connection with a request for waiver under this part.
(ii) Upon request by the affected electrical utility or any interested person, the commission may issue a supplemental protective order in connection with any verified application.
(c) (i) The generic protective order and any supplemental protective order restrict use of confidential information to the proceeding on the verified application, however, use of the confidential information in the proceeding is not considered a competitive purpose under Subsection (8)(c)(ii).
(ii) The generic protective order and any supplemental protective order shall forbid the use of confidential information for competitive purposes.
(d) An interested person may gain access to and use confidential information in accordance with the terms of a protective order issued by the commission.
(9) Notwithstanding the time frames in Subsections (4), (6), and (7), the commission:
(a) shall take action or schedule proceedings as soon as reasonably practicable in light of the circumstances and urgency demonstrated by the verified application and any subsequent information provided during the process; and
(b) may shorten or lengthen the time frames if the commission determines that changing them is warranted and in the public interest, except that a time frame may not be lengthened solely because an independent evaluator is not available to participate or to complete a recommendation.
(10) If an affected electrical utility is granted a waiver to acquire or construct a significant energy resource in accordance with this section:
(a) the provisions of Sections 54-17-303 and 54-17-304 do not apply to the significant energy resource decision;
(b) any cost recovery that an affected electrical utility seeks in connection with that significant energy resource is subject to a future prudence review by the commission under Subsection 54-4-4(4); and
(c) the waiver grant does not create any presumption that the affected electrical utility's action in acquiring or constructing a significant energy resource was prudent.
(11) (a) Subject to Subsection (11)(b), the commission shall use reasonable efforts to have an independent evaluator available to participate in any application for a waiver under this part.
(b) The commission may decline to use an independent evaluator in the consideration of a waiver application if the commission determines the use of an independent evaluator is:
(i) not appropriate under the circumstances;
(ii) not available under terms or conditions the commission considers reasonable; or
(iii) not available to participate or complete a recommendation within any time frame established under Subsection (4), (6), (7), or (9).
(c) The validity of an order entered under this part is not affected by:
(i) the unavailability of an independent evaluator; or
(ii) the failure of an independent evaluator to participate or complete a recommendation within any time frame established under Subsection (4), (6), (7), or (9).
(12) The commission shall issue a generic protective order as provided in Subsections (2)(b) and (8)(b).
(13) By September 1, 2007, the commission shall, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules concerning the process for obtaining a waiver of the solicitation or approval process consistent with this section.
Section 814. Section 56-1-22.5 is amended to read:
56-1-22.5
. Procedures -- Adjudicative proceedings.The Public Service Commission shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 815. Section 56-2-8 is amended to read:
56-2-8
. Contents of livestock owners' application for fencing.In addition to the information required by [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, the request for agency action shall:
(1) identify the lands;
(2) identify the name and address of the owner of the lands;
(3) if any of the lands are owned by the United States or the state of Utah, designate the agency or department of government that administers the lands;
(4) identify the nature of the right of each petitioner to drive, range, or graze sheep, cattle, horses, or mules on the lands; and
(5) specify the ownership of the railroad sought to be fenced.
Section 816. Section 57-11-3.5 is amended to read:
57-11-3.5
. Procedures -- Adjudicative proceedings.The Division of Real Estate shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 817. Section 57-11-10 is amended to read:
57-11-10
. Renewal report -- Renewal fee -- Examination by division -- Annual reports.(1) (a) Within 30 days after each annual anniversary date of the division's registration of subdivided lands, the subdivider shall file a renewal report in the form prescribed by the division together with a renewal fee of $200.
(b) The report shall reflect any material changes in information contained in the original application for registration, including any change in ownership of the subdivider.
(c) The report shall also indicate the number of units in the subdivision that have been disposed of since the division registered the subdivided lands.
(2) (a) The division may, upon the filing of a renewal report, initiate a renewal examination of the kind described in Section 57-11-8.
(b) If the division determines upon inquiry and examination that any of the requirements of Section 57-11-8 have not been met, it shall notify the subdivider that the report, the promotional plan, or the plan of disposition must be corrected within 20 days or any additional time allowed by the division.
(c) If the requirements are not met within the time allowed, the division may, notwithstanding the provisions of Section 57-11-13 and without further notice, issue a cease and desist order according to the emergency procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, barring further sale of the subdivided lands.
(3) The division may permit the filing of annual reports within 30 days after the anniversary date of the consolidated registration in lieu of the anniversary date of the original registration.
Section 818. Section 57-11-13 is amended to read:
57-11-13
. Enforcement powers of division -- Cease and desist orders.(1) (a) If the director has reason to believe that any person has been or is engaging in conduct violating this chapter, or has violated any lawful order or rule of the division, he shall issue and serve upon the person a cease and desist order and may also order the person to take such affirmative actions the director determines will carry out the purposes of this chapter.
(b) The person served may request an adjudicative proceeding within ten days after receiving the order.
(c) The cease and desist order remains in effect pending the hearing.
(d) The division shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the person served requests a hearing.
(2) (a) After the hearing the director may issue an order making the cease and desist order permanent if the director finds there has been a violation of this chapter.
(b) If no hearing is requested and the person served does not obey the director's order, the director shall file suit in the name of the Department of Commerce and the Division of Real Estate to enjoin the person from violating this chapter. The action shall be filed in the district court in the county in which the conduct occurred or where the person resides or carries on business.
(3) The remedies and action provided in this section may not interfere with or prevent the prosecution of any other remedies or actions including criminal prosecutions.
Section 819. Section 57-11-14 is amended to read:
57-11-14
. Revocation, suspension, or denial of registration -- Grounds -- Suspension or revocation of real estate license.(1) (a) The division may deny an application for registration or may revoke, suspend, or deny reissuance of a registration, or may impose a fine of not more than $500 per violation, by following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and by making a written finding of fact that the subdivider has:
(i) failed to comply with the terms of a cease and desist order;
(ii) been convicted in any court prior or subsequent to the filing of the application for registration of a crime involving fraud, deception, false pretenses, misrepresentation, false advertising, or dishonest dealing in real estate transactions, or has been subject to any injunction or administrative order restraining a false or misleading promotional plan involving land dispositions, and that the public interest requires revocation;
(iii) disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of subdivision purchasers;
(iv) failed to perform faithfully any stipulation or agreement made with the division as an inducement to grant any registration, to reinstate any registration, to revoke any cease and desist order, or to approve any promotional plan or public offering statement;
(v) made intentional misrepresentations, or concealed material facts, in an application for registration;
(vi) violated any provision of this chapter or the rules adopted under this chapter;
(vii) directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of an interest in subdivided lands;
(viii) engaged in the offering of subdivided lands which has constituted or which may constitute a fraud upon purchasers or prospective purchasers of the lands; or
(ix) engaged in dishonest practices in any industry involving sales to consumers.
(b) Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
(2) As an alternative to revoking the registration of a subdivider, the director may issue a cease and desist order if after notice and a hearing he finds that the subdivider is guilty of a violation for which revocation may be ordered.
(3) Any real estate broker or salesman violating any provisions of this chapter shall have his license suspended or revoked by the division for the period of time the director determines to be justified under the circumstances. The suspension or revocation shall be in addition to any other penalty which may be imposed under this chapter, subject to the provisions of Section 61-2-12.
Section 820. Section 57-12-9 is amended to read:
57-12-9
. Rules of displacing agency.(1) (a) A displacing agency may enact rules to assure that:
(i) the payments and assistance authorized by this chapter are administered in a manner that is fair, reasonable, and as uniform as practicable;
(ii) a displaced person who makes proper application for a payment authorized by this chapter is paid promptly after a move or, in hardship cases, is paid in advance; and
(iii) any person aggrieved by a determination as to eligibility for a payment authorized by this chapter, or the amount of a payment, may have the person's application reviewed by the head of the displacing agency.
(b) Each displacing agency that has not adopted rules under Subsection (1)(a) shall comply with the rules promulgated by the Utah Department of Transportation relating to displaced persons in right-of-way acquisitions.
(2) Each displacing agency shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 821. Section 57-19-20 is amended to read:
57-19-20
. Injunctive relief -- Cease and desist order.(1) Whenever it appears to the director that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter, and that it would be in the public interest to stop those acts or practices, the director may either:
(a) seek injunctive relief as provided in Rule 65A, Utah Rules of Civil Procedure; or
(b) issue an administrative cease and desist order.
(2) If an administrative cease and desist order is issued pursuant to Subsection (1), the person upon whom the order is served may, within ten days after receiving the order, request that a hearing be held before an administrative law judge. If a request for a hearing is made, the division shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. Pending the hearing, the order remains in effect.
(3) If, at the hearing, a finding is made that there has been a violation of this chapter, the director, with the concurrence of the executive director, may issue an order making the cease and desist order permanent. If no hearing is requested, and if the person fails to cease the act or practice, or after discontinuing the act or practice again commences it, the director shall file suit in the district court of the county in which the act or practice occurred, or where the person resides or carries on business, to enjoin and restrain the person from violating this chapter.
(4) Whether or not the director has issued a cease and desist order, the attorney general, in the name of the state or of the director, may bring an action in any court of competent jurisdiction to enjoin any act or practice constituting a violation of any provision of this chapter, and to enforce compliance with this chapter or any rule or order under this chapter. Upon a proper showing, a permanent or temporary injunction, restraining order, or writ of mandamus shall be granted.
Section 822. Section 57-21-2 is amended to read:
57-21-2
. Definitions.As used in this chapter:
(1) "Aggrieved person" includes any person who:
(a) claims to have been injured by a discriminatory housing practice; or
(b) believes that he will be injured by a discriminatory housing practice that is about to occur.
(2) "Commission" means the Labor Commission.
(3) "Complainant" means an aggrieved person, including the director, who has commenced a complaint with the division.
(4) "Conciliation" means the attempted resolution of issues raised by a complaint of discriminatory housing practices by the investigation of the complaint through informal negotiations involving the complainant, the respondent, and the division.
(5) "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation.
(6) "Conciliation conference" means the attempted resolution of issues raised by a complaint or by the investigation of a complaint through informal negotiations involving the complainant, the respondent, and the division. The conciliation conference is not subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(7) "Covered multifamily dwellings" means:
(a) buildings consisting of four or more dwelling units if the buildings have one or more elevators; and
(b) ground floor units in other buildings consisting of four or more dwelling units.
(8) "Director" means the director of the division or a designee.
(9) (a) "Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities, including a person having a record of such an impairment or being regarded as having such an impairment.
(b) "Disability" does not include current illegal use of, or addiction to, any federally controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802.
(10) "Discriminate" includes segregate or separate.
(11) "Discriminatory housing practice" means an act that is unlawful under this chapter.
(12) "Division" means the Division of Antidiscrimination and Labor established under the commission.
(13) (a) "Dwelling" means any building or structure, or a portion of a building or structure, occupied as, or designed or intended for occupancy as, a residence of one or more families.
(b) "Dwelling" also includes vacant land that is offered for sale or lease for the construction or location of a dwelling as described in Subsection (13)(a).
(14) (a) "Familial status" means one or more individuals who have not attained the age of 18 years being domiciled with:
(i) a parent or another person having legal custody of the individual or individuals; or
(ii) the designee of the parent or other person having custody, with the written permission of the parent or other person.
(b) The protections afforded against discrimination on the basis of familial status shall apply to any person who:
(i) is pregnant;
(ii) is in the process of securing legal custody of any individual who has not attained the age of 18 years; or
(iii) is a single individual.
(15) "National origin" means the place of birth of an individual or of any lineal ancestors.
(16) "Person" includes one or more individuals, corporations, limited liability companies, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under the United States Bankruptcy Code, receivers, and fiduciaries.
(17) "Presiding officer" has the same meaning as provided in Section [63-46b-2] 63G-4-103.
(18) "Real estate broker" or "salesperson" means a principal real estate broker, an associate real estate broker, or a real estate sales agent as those terms are defined in Section 61-2-2.
(19) "Respondent" means a person against whom a complaint of housing discrimination has been initiated.
(20) "Sex" means gender and includes pregnancy, childbirth, and disabilities related to pregnancy or childbirth.
(21) "Source of income" means the verifiable condition of being a recipient of federal, state, or local assistance, including medical assistance, or of being a tenant receiving federal, state, or local subsidies, including rental assistance or rent supplements.
Section 823. Section 57-21-8 is amended to read:
57-21-8
. Jurisdiction -- Department -- Division.(1) The commission has jurisdiction over the subject of housing discrimination under this chapter and may delegate the responsibility of receiving, processing, and investigating allegations of discriminatory housing practices and enforcing this chapter to the division.
(2) The commission may:
(a) adopt rules necessary to administer this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) appoint and prescribe the duties of investigators, legal counsel, and other employees and agents that it considers necessary for the enforcement of this chapter; and
(c) issue subpoenas to compel the attendance of witnesses or the production of evidence for use in any investigation, conference, or hearing conducted by the division, and if a person fails to comply with such a subpoena, petition a court of competent jurisdiction for an order to show cause why that person should not be held in contempt.
(3) The division:
(a) may receive, reject, investigate, and determine complaints alleging discriminatory housing practices prohibited by this chapter;
(b) shall attempt conciliation between the parties through informal efforts, conference, persuasion, or other reasonable methods for the purposes of resolving the complaint;
(c) may seek prompt judicial action for appropriate temporary or preliminary relief pending final disposition of a complaint if the division and the commission conclude that such an action is necessary to carry out the purposes of this chapter;
(d) may, with the commission, initiate a civil action in a court of competent jurisdiction to:
(i) enforce the rights granted or protected under this chapter;
(ii) seek injunctive or other equitable relief, including temporary restraining orders, preliminary injunctions, or permanent injunctions;
(iii) seek damages; and
(iv) enforce final commission orders on the division's own behalf or on behalf of another person in order to carry out the purposes of this chapter;
(e) may initiate formal agency action under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(f) may promote public awareness of the rights and remedies under this chapter by implementing programs to increase the awareness of landlords, real estate agents, and other citizens of their rights and responsibilities under the Utah Fair Housing Act, but may not solicit fair housing complaints or cases.
Section 824. Section 57-21-9 is amended to read:
57-21-9
. Procedure for an aggrieved person to file a complaint -- Conciliation -- Investigation -- Determination.(1) Any aggrieved person may file a written verified complaint with the division within 180 days after an alleged discriminatory housing practice occurs.
(2) (a) The commission shall adopt rules consistent with the provisions of 24 C.F.R. Sec. 115.3 (1990), relating to procedures under related federal law, to govern:
(i) the form of the complaint;
(ii) the form of any answer to the complaint;
(iii) procedures for filing or amending a complaint or answer; and
(iv) the form of notice to parties accused of the acts or omissions giving rise to the complaint.
(b) The commission may, by rule, prescribe any other procedure pertaining to the division's processing of the complaint.
(3) During the period beginning with the filing of the complaint and ending with the director's determination, the division shall, to the extent feasible, engage in conciliation with respect to the complaint.
(4) The division shall commence proceedings to investigate and conciliate a complaint alleging a discriminatory housing practice within 30 days after the filing of the complaint. After the commencement of an investigation, any party may request that the commission review the proceedings to insure compliance with the requirements of this chapter.
(5) The division shall complete the investigation within 100 days after the filing of the complaint, unless it is impracticable to do so. If the division is unable to complete the investigation within 100 days after the filing of the complaint, the division shall notify the complainant and respondent in writing of the reasons for the delay.
(6) (a) If, as a result of the division's investigation, the director determines that there is no reasonable cause to support the allegations in the complaint, the director shall issue a written determination dismissing the complaint.
(b) If the director dismisses the complaint pursuant to Subsection (6)(a), the complainant may request that the director reconsider the dismissal pursuant to Section [63-46b-13] 63G-4-302.
(c) Notwithstanding the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the director's determination to dismiss a complaint or, in the case of a request for reconsideration, the director's order denying reconsideration is not subject to further agency action or direct judicial review. However, the complainant may commence a private action pursuant to Section 57-21-12.
(7) If, as a result of the division's investigation of a complaint, the director determines that there is reasonable cause to support the allegations in the complaint, all of the following apply:
(a) The division shall informally endeavor to eliminate or correct the discriminatory housing practice through a conciliation conference between the parties, presided over by the division. Nothing said or done in the course of the conciliation conference may be made public or admitted as evidence in a subsequent proceeding under this chapter without the written consent of the parties concerned.
(b) If the conciliation conference results in voluntary compliance with this chapter, a conciliation agreement setting forth the resolution of the issues shall be executed by the parties and approved by the division. The parties may enforce the conciliation agreement in an action filed in a court of competent jurisdiction.
(c) If the division is unable to obtain a conciliation agreement, the director shall issue a written determination stating the director's findings and ordering any appropriate relief under Section 57-21-11.
Section 825. Section 57-21-10 is amended to read:
57-21-10
. Judicial election or formal adjudicative hearing.(1) If, pursuant to Subsection 57-21-9(7)(c), the director issues a written determination finding reasonable cause to believe that a discriminatory housing practice has occurred, or is about to occur, a respondent may obtain de novo review of the determination by submitting a written request for a formal adjudicative hearing to be conducted by the commission's Division of Adjudication in accordance with Title 34A, Chapter 1, Part 3, Adjudicative Proceedings, to the director within 30 days from the date of issuance of the determination. If the director does not receive a timely request for review, the director's determination becomes the final order of the commission and is not subject to further agency action or direct judicial review.
(2) If a respondent files a timely request for review pursuant to Subsection (1):
(a) any respondent, complainant, or aggrieved party may elect to have the de novo review take place in a civil action in the district court rather than in a formal adjudicative hearing with the Division of Adjudication by filing an election with the commission in accordance with rules established by the commission pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding the form and time period for the election;
(b) the complainant shall file a complaint for review in the forum selected pursuant to Subsection (2)(a) within 30 days after the completion of the forum selection process; and
(c) the commission shall determine whether the director's determination is supported by substantial evidence.
(3) If, pursuant to Subsection (2)(c), the commission determines that the director's determination is supported by substantial evidence, the commission shall provide legal representation on behalf of the aggrieved person, including the filing of a complaint for review as required by Subsection (2)(b), to support and enforce the director's determination in the de novo review proceeding. Notwithstanding any provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the commission's determination regarding the existence or nonexistence of substantial evidence to support the director's determination is not subject to further agency action or direct judicial review.
(4) Upon timely application, an aggrieved person may intervene with respect to the issues to be determined in a formal adjudicative hearing or in a civil action brought under this section.
(5) If a formal adjudicative hearing is elected, all of the following apply:
(a) The presiding officer shall commence the formal adjudicative hearing within 150 days after the respondent files a request for review of the director's determination unless it is impracticable to do so.
(b) The investigator who investigated the matter may not participate in the formal adjudicative hearing, except as a witness, nor may the investigator participate in the deliberations of the presiding officer.
(c) Any party to the complaint may file a written request to the Division of Adjudication for review of the presiding officer's order in accordance with Section [63-46b-12] 63G-4-301 and Title 34A, Chapter 1, Part 3, Adjudicative Proceedings.
(d) A final order of the commission under this section is subject to judicial review as provided in Section [63-46b-16] 63G-4-403 and Title 34A, Chapter 1, Part 3, Adjudicative Proceedings.
(6) If a civil action is elected, the commission is barred from continuing or commencing any adjudicative proceeding in connection with the same claims under this chapter.
(7) The commission shall make final administrative disposition of the complaint alleging a discriminatory housing practice within one year after the filing of the complaint, unless it is impracticable to do so. If the commission is unable to make final administrative disposition within one year, the commission shall notify the complainant, respondent, and any other interested party in writing of the reasons for the delay.
Section 826. Section 57-23-8 is amended to read:
57-23-8
. Enforcement powers of division -- Cease and desist orders.(1) (a) If the director has reason to believe that any person has been or is engaging in conduct violating this chapter, or has violated any lawful order or rule of the division, he shall issue and serve upon the person a cease and desist order. He may also order the person to take whatever affirmative actions the director determines to be necessary to carry out the purposes of this chapter.
(b) The person served with an order under Subsection (a) may request an adjudicative proceeding within ten days after receiving the order. The cease and desist order remains in effect pending the hearing.
(c) The division shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the person served requests a hearing.
(2) (a) After the hearing the director may issue a final order making the cease and desist order permanent if the director finds there has been a violation of this chapter.
(b) If no hearing is requested and the person served does not obey the director's order, the director may file suit in the name of the Department of Commerce and the Division of Real Estate to enjoin the person from violating this chapter. The action shall be filed in the district court in the county in which the conduct occurred, where the person served with the cease and desist order either resides or carries on business.
(3) The remedies and action provided in this section are not exclusive but are in addition to any other remedies or actions available under Section 57-23-10.
Section 827. Section 57-24-101 is amended to read:
57-24-101
. Definitions.As used in this chapter:
(1) (a) "Flag" means a depiction or emblem:
(i) (A) of the flag of the United States as provided in United States Code Title 4, Chapter 1, The Flag; or
(B) of the state flag of Utah as provided in Section [63-13-5] 63G-1-501;
(ii) made from fabric or cloth; and
(iii) with measurements that do not exceed three feet by five feet.
(b) "Flag" does not include a depiction or emblem made from:
(i) lights;
(ii) paint;
(iii) roofing;
(iv) siding;
(v) paving materials;
(vi) flora;
(vii) balloons; or
(viii) any other building, landscaping, or decorative component.
(2) "Resident" means:
(a) a renter as defined in Section 57-22-2;
(b) a resident as defined in Section 57-16-3; or
(c) a unit owner as defined in Section 57-8-3.
(3) "Residential property management authority" means:
(a) an owner as defined in Section 57-22-2;
(b) a mobile home park as defined in Section 57-16-3;
(c) a mobile home park residents' association established in accordance with Section 57-16-16;
(d) an association of unit owners as defined in Section 57-8-3; or
(e) a management committee as defined in Section 57-8-3.
Section 828. Section 57-25-109 is amended to read:
57-25-109
. Duration -- Amendment by court action.(1) An environmental covenant is perpetual unless it is:
(a) (i) limited to a specific duration by its terms; or
(ii) terminated by the occurrence of a specific event;
(b) terminated by consent under Section 57-25-110;
(c) terminated under Subsection (2);
(d) terminated by foreclosure of an interest that has priority over the environmental covenant; or
(e) terminated or modified in an eminent domain proceeding, but only if:
(i) the agency that signed the covenant is a party to the proceeding;
(ii) all persons identified in Subsections 57-25-110(1) and (2) are given notice of the pendency of the proceeding; and
(iii) the court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(2) (a) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in Subsections 57-25-110(1) and (2) have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant.
(b) The Department of Environmental Quality's determination under Subsection (2)(a) or its failure to make a determination upon request is subject to review under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(c) A federal agency's determination under Subsection (2)(a) or its failure to make a determination upon request is subject to review under applicable federal law.
(3) Except as otherwise provided in Subsections (1) and (2), an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(4) An environmental covenant may not be extinguished, limited, or impaired by application of Title 57, Chapter 9, Marketable Record Title.
Section 829. Section 58-1-106 is amended to read:
58-1-106
. Division -- Duties, functions, and responsibilities.(1) The duties, functions, and responsibilities of the division include the following:
(a) prescribing, adopting, and enforcing rules to administer this title;
(b) investigating the activities of any person whose occupation or profession is regulated or governed by the laws and rules administered and enforced by the division;
(c) subpoenaing witnesses, taking evidence, and requiring by subpoena duces tecum the production of any books, papers, documents, records, contracts, recordings, tapes, correspondence, or information relevant to an investigation upon a finding of sufficient need by the director or by his designee;
(d) taking administrative and judicial action against persons in violation of the laws and rules administered and enforced by the division, including the issuance of cease and desist orders;
(e) seeking injunctions and temporary restraining orders to restrain unauthorized activity;
(f) giving public notice of board meetings;
(g) keeping records of board meetings, proceedings, and actions and making those records available for public inspection upon request;
(h) issuing, refusing to issue, revoking, suspending, renewing, refusing to renew, or otherwise acting upon any license;
(i) preparing and submitting to the governor and the Legislature an annual report of the division's operations, activities, and goals;
(j) preparing and submitting to the executive director a budget of the expenses for the division;
(k) establishing the time and place for the administration of examinations; and
(l) preparing lists of licensees and making these lists available to the public at cost upon request unless otherwise prohibited by state or federal law.
(2) The division may not include home telephone numbers or home addresses of licensees on the lists prepared under Subsection (1)(l), except as otherwise provided by rules of the division made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) The division may provide the home address or home telephone number of a licensee on a list prepared under Subsection (1) upon the request of an individual who provides proper identification and the reason for the request, in writing, to the division.
(b) A request under Subsection (3)(a) is limited to providing information on only one licensee per request.
(c) The division shall provide, by rule, what constitutes proper identification under Subsection (3)(a).
Section 830. Section 58-1-108 is amended to read:
58-1-108
. Adjudicative proceedings.(1) The division and all boards created under the authority of this title shall comply with the procedures and requirements of Title 13, Chapter 1, Department of Commerce, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in all of their adjudicative proceedings as defined by Subsection [63-46b-2] 63G-4-103(1).
(2) Before proceeding under Section [63-46b-20] 63G-4-502, the division shall review the proposed action with a committee of no less than three licensees appointed by the chairman of the licensing board created under this title for the profession of the person against whom the action is proposed.
(3) Notwithstanding [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, a warning or final disposition letter which does not constitute disciplinary action against the addressee, issued in response to a complaint of unprofessional or unlawful conduct under this title, does not constitute an adjudicative proceeding.
Section 831. Section 58-1-109 is amended to read:
58-1-109
. Presiding officers -- Content of orders -- Recommended orders -- Final orders -- Appeal of orders.(1) Unless otherwise specified by statute or rule, the presiding officer for adjudicative proceedings before the division shall be the director. However, pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the director may designate in writing an individual or body of individuals to act as presiding officer to conduct or to assist the director in conducting any part or all of an adjudicative proceeding.
(2) Unless otherwise specified by the director, an administrative law judge shall be designated as the presiding officer to conduct formal adjudicative proceedings in accordance with Subsection [63-46b-1] 63G-4-102 (4), Sections [63-46b-6] 63G-4-204 through [63-46b-9] 63G-4-207, and [63-46b-11] 63G-4-209.
(3) Unless otherwise specified by the director, the licensing board of the occupation or profession that is the subject of the proceedings shall be designated as the presiding officer to serve as fact finder at the evidentiary hearing in a formal adjudicative proceeding.
(4) At the close of an evidentiary hearing in an adjudicative proceeding, unless otherwise specified by the director, the presiding officer who served as the fact finder at the hearing shall issue a recommended order based upon the record developed at the hearing determining all issues pending before the division.
(5) (a) The director shall issue a final order affirming the recommended order or modifying or rejecting all or any part of the recommended order and entering new findings of fact, conclusions of law, statement of reasons, and order based upon the director's personal attendance at the hearing or a review of the record developed at the hearing. Before modifying or rejecting a recommended order, the director shall consult with the presiding officer who issued the recommended order.
(b) If the director issues a final order modifying or rejecting a recommended order, the licensing board of the occupation or profession that is the subject of the proceeding may, by a two-thirds majority vote of all board members, petition the executive director or designee within the department to review the director's final order. The executive director's decision shall become the final order of the division. This subsection does not limit the right of the parties to appeal the director's final order by filing a request for agency review under Subsection (8).
(6) If the director is unable for any reason to rule upon a recommended order of a presiding officer, the director may designate another person within the division to issue a final order.
(7) If the director or his designee does not issue a final order within 20 calendar days after the date of the recommended order of the presiding officer, the recommended order becomes the final order of the director or his designee.
(8) The final order of the director may be appealed by filing a request for agency review with the executive director or his designee within the department.
(9) The content of all orders shall comply with the requirements of Subsection [63-46b-5] 63G-4-203(1)(i) and Sections [63-46b-10] 63G-4-208 and [63-46b-11] 63G-4-209.
Section 832. Section 58-1-301 is amended to read:
58-1-301
. License application -- Licensing procedure.(1) (a) Each license applicant shall apply to the division in writing upon forms available from the division. Each completed application shall contain documentation of the particular qualifications required of the applicant, shall include the applicant's Social Security number, shall be verified by the applicant, and shall be accompanied by the appropriate fees.
(b) An applicant's Social Security number is a private record under Subsection [63-2-302] 63G-2-302(1)(h).
(2) (a) A license shall be issued to an applicant who submits a complete application if the division determines that the applicant meets the qualifications of licensure.
(b) A written notice of additional proceedings shall be provided to an applicant who submits a complete application, but who has been, is, or will be placed under investigation by the division for conduct directly bearing upon his qualifications for licensure, if the outcome of additional proceedings is required to determine the division's response to the application.
(c) A written notice of denial of licensure shall be provided to an applicant who submits a complete application if the division determines that the applicant does not meet the qualifications of licensure.
(d) A written notice of incomplete application and conditional denial of licensure shall be provided to an applicant who submits an incomplete application. This notice shall advise the applicant that the application is incomplete and that the application is denied, unless the applicant corrects the deficiencies within the time period specified in the notice and otherwise meets all qualifications for licensure.
(3) Before any person is issued a license under this title, all requirements for that license as established under this title and by rule shall be met.
(4) If all requirements are met for the specific license, the division shall issue the license.
Section 833. Section 58-1-308 is amended to read:
58-1-308
. Term of license -- Expiration of license -- Renewal of license -- Reinstatement of license -- Application procedures.(1) (a) Each license issued under this title shall be issued in accordance with a two-year renewal cycle established by rule.
(b) A renewal period may be extended or shortened by as much as one year to maintain established renewal cycles or to change an established renewal cycle.
(2) (a) The expiration date of a license shall be shown on the license.
(b) A license that is not renewed prior to the expiration date shown on the license automatically expires.
(c) A license automatically expires prior to the expiration date shown on the license upon the death of a licensee who is a natural person, or upon the dissolution of a licensee that is a partnership, corporation, or other business entity.
(d) If the existence of a dissolved partnership, corporation, or other business entity is reinstated prior to the expiration date shown upon the entity's expired license issued by the division, the division shall, upon written application, reinstate the applicant's license, unless it finds that the applicant no longer meets the qualifications for licensure.
(e) Expiration of licensure is not an adjudicative proceeding under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) (a) The division shall notify each licensee in accordance with procedures established by rule that the licensee's license is due for renewal and that unless an application for renewal is received by the division by the expiration date shown on the license, together with the appropriate renewal fee and documentation showing completion of or compliance with renewal qualifications, the license will not be renewed.
(b) Examples of renewal qualifications which by statute or rule the division may require the licensee to document completion of or compliance with include:
(i) continuing education;
(ii) continuing competency;
(iii) quality assurance;
(iv) utilization plan and protocol;
(v) financial responsibility;
(vi) certification renewal; and
(vii) calibration of equipment.
(4) (a) (i) An application for renewal that complies with Subsection (3) is complete.
(ii) A renewed license shall be issued to applicants who submit a complete application, unless it is apparent to the division that the applicant no longer meets the qualifications for continued licensure.
(b) (i) The division may evaluate or verify documentation showing completion of or compliance with renewal requirements on an entire population or a random sample basis, and may be assisted by advisory peer committees.
(ii) If necessary, the division may complete its evaluation or verification subsequent to renewal and, if appropriate, pursue action to suspend or revoke the license of a licensee who no longer meets the qualifications for continued licensure.
(c) The application procedures specified in Subsection 58-1-301(2), apply to renewal applications to the extent they are not in conflict with this section.
(5) (a) Any license that is not renewed may be reinstated at any time within two years after nonrenewal upon submission of an application for reinstatement, payment of the renewal fee together with a reinstatement fee determined by the department under Section [63-38-3.2] 63J-1-303, and upon submission of documentation showing completion of or compliance with renewal qualifications.
(b) The application procedures specified in Subsection 58-1-301(2) apply to the reinstatement applications to the extent they are not in conflict with this section.
(c) Except as otherwise provided by rule, a license that is reinstated no later than 120 days after it expires shall be retroactively reinstated to the date it expired.
(6) (a) If not reinstated within two years, the holder may obtain a license only if he meets requirements provided by the division by rule or by statute for a new license.
(b) Each licensee under this title who has been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States may reinstate his license without taking an examination by submitting an application for reinstatement, paying the current annual renewal fee and the reinstatement fee, and submitting documentation showing completion of or compliance with any renewal qualifications at any time within six months after reestablishing domicile within Utah or terminating full-time government service.
Section 834. Section 58-1-402 is amended to read:
58-1-402
. Administrative review -- Special appeals boards.(1) (a) Any applicant who has been denied a license to practice on the basis of credentials, character, or failure to pass a required examination, or who has been refused renewal or reinstatement of a license to practice on the basis that the applicant does not meet qualifications for continued licensure in any occupation or profession under the jurisdiction of the division may submit a request for agency review to the executive director within 30 days following notification of the denial of a license or refusal to renew or reinstate a license.
(b) The executive director shall determine whether the circumstances for denying an application for an initial license or for renewal or reinstatement of a license would justify calling a special appeals board under Subsection (2). The executive director's decision is not subject to agency review.
(2) A special appeals board shall consist of three members appointed by the executive director as follows:
(a) one member from the occupation or profession in question who is not on the board of that occupation or profession;
(b) one member from the general public who is neither an attorney nor a practitioner in an occupation or profession regulated by the division; and
(c) one member who is a resident lawyer currently licensed to practice law in this state who shall serve as chair of the special appeals board.
(3) The special appeals board shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its proceedings.
(4) (a) Within a reasonable amount of time following the conclusion of a hearing before a special appeals board, the board shall enter an order based upon the record developed at the hearing. The order shall state whether a legal basis exists for denying the application for an initial license or for renewal or reinstatement of a license that is the subject of the appeal. The order is not subject to further agency review.
(b) The division or the applicant may obtain judicial review of the decision of the special appeals board in accordance with Sections [63-46b-14] 63G-4-401 and [63-46b-16] 63G-4-403.
(5) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
(6) If an applicant under Subsection (1) is not given a special appeals board, the applicant shall be given agency review under the ordinary agency review procedures specified by rule.
Section 835. Section 58-1-404 is amended to read:
58-1-404
. Diversion -- Procedure.(1) As used in this section, "diversion" means suspending action to discipline a licensee who is or could be charged in a Notice of Agency Action with certain offenses within the category of unprofessional or unlawful conduct on the condition that the licensee agrees to participate in an educational or rehabilitation program or fulfill some other condition.
(2) (a) (i) The director may establish, as circumstances require, a diversion advisory committee for each occupation or profession or similar groups of occupations or professions licensed by the division.
(ii) The committees shall assist the director in the administration of this section.
(b) (i) Each committee shall consist of at least three licensees from the same or similar occupation or profession as the person whose conduct is the subject of the committee's consideration.
(ii) The director shall appoint the members of a diversion advisory committee from nominations submitted by the corresponding board established for the same or similar occupation or profession under Section 58-1-201 or from other qualified nominees developed by or submitted to the division.
(iii) Committee members may not serve concurrently as members of the corresponding board.
(iv) Committee members shall serve voluntarily without remuneration.
(v) The director may:
(A) dissolve any diversion advisory committee;
(B) remove or request the replacement of any member of a committee; and
(C) establish any procedure that is necessary and proper for a committee's administration.
(3) The director may, after consultation with the appropriate diversion advisory committee and by written agreement with the licensee, divert the licensee to a diversion program:
(a) at any time after receipt by the division of a complaint against the licensee when no adjudicative proceeding has been commenced;
(b) at any time prior to the conclusion of a hearing under Section [63-46b-8] 63G-4-206 when an adjudicative proceeding has been commenced against the licensee; or
(c) after a self-referral by a licensee who is not the subject of a current investigation, complaint, or adjudicative proceeding.
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall define by rule the particular offenses within the category of unprofessional or unlawful conduct which may be subject to diversion.
(b) A licensee may be eligible for a diversion program only once for the same or similar offense, whether the diversion program was in this state or another jurisdiction, and is not eligible if previously disciplined by the division, by a licensing agency of another state, or by a federal government agency for the same or a similar offense.
(c) The term of a diversion agreement shall be five years or less, but may be extended for an additional period of time as agreed to by the parties in writing.
(d) A decision by the director not to divert a licensee is not subject to appeal or judicial review.
(5) A licensee may be represented by counsel:
(a) during the negotiations for diversion;
(b) at the time of the execution of the diversion agreement; and
(c) at any hearing before the director relating to a diversion program.
(6) (a) As used in this section, "diversion agreement" means a written agreement between the division, through its director, and the licensee, which specifies formal terms and conditions the licensee must fulfill in order to comply with the diversion program.
(b) (i) A diversion agreement shall contain a full detailed statement of the requirements agreed to by the licensee and a full detailed stipulation of the facts upon which the diversion agreement is premised.
(ii) The facts stipulated in the diversion agreement shall constitute binding admissions of the licensee:
(A) in any proceeding under Subsection (6)(c) or (6)(d) to terminate the diversion agreement and impose disciplinary sanctions against the licensee; and
(B) in any disciplinary proceeding based on unprofessional or unlawful conduct that is not the basis of the diversion agreement.
(c) The diversion agreement shall provide that if the licensee makes an intentional material misrepresentation of fact in the stipulation of facts contained in the diversion agreement, the director shall initiate the procedures set forth in Subsection (13) to terminate the diversion agreement and issue an order of license revocation.
(d) (i) The diversion agreement shall provide that if the licensee fails to comply with its terms, the director shall initiate the procedures set forth in Subsection (14) to terminate the diversion agreement and issue an order of license suspension, which shall be stayed in favor of an order of probation having the same terms as those which comprised the diversion agreement.
(ii) The division may waive and not include as probationary requirements any terms of the diversion agreement it does not consider necessary to protect the public.
(iii) The term of the order of probation shall be as provided in Subsection (14)(c)(ii).
(e) The division director may not approve a diversion agreement unless the licensee, as part of the diversion agreement:
(i) knowingly and intelligently waives the right to a hearing under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, for the conduct upon which the diversion agreement was premised;
(ii) agrees to be subject to the procedures and remedies set forth in this section;
(iii) acknowledges an understanding of the consequences of making an intentional misrepresentation of fact in the stipulation of facts contained in the diversion agreement; and
(iv) acknowledges an understanding of the consequences of failing to comply with the terms of the diversion agreement.
(7) (a) If the division and the licensee enter into a diversion agreement after the division has commenced an adjudicative proceeding against the licensee, the director shall stay that proceeding pending completion of the diversion agreement.
(b) The order staying the adjudicative proceeding shall be filed in that proceeding and may reference the diversion agreement.
(8) (a) Upon successful completion of a diversion agreement, the director shall dismiss any charges under the director's jurisdiction of unprofessional or unlawful conduct that were filed against the licensee.
(b) Whether or not an adjudicative proceeding had been commenced against the licensee, the division may not thereafter subject the licensee to disciplinary action for the conduct which formed the basis of the completed diversion agreement.
(c) Neither the execution of a diversion agreement nor the dismissal of filed charges constitute disciplinary action, and no report of either may be made to disciplinary databases.
(d) The division may consider the completion of a diversion program and the contents of the diversion agreement in determining the appropriate disciplinary action if the licensee is charged in the future with the same or similar conduct.
(e) The order of dismissal shall be filed in the adjudicative proceeding in which the misconduct was charged and may reference the diversion agreement.
(9) (a) Acceptance of the licensee into diversion does not preclude the division from investigating or continuing to investigate the licensee for any unlawful or unprofessional conduct committed before, during, or after participation in the diversion program.
(b) Acceptance of the licensee into diversion does not preclude the division from taking disciplinary action or continuing to take disciplinary action against the licensee for unlawful or unprofessional conduct committed before, during, or after participation in the diversion program, except for that conduct which formed the basis for the diversion agreement.
(c) Any licensee terminated from the diversion program for failure to comply with the diversion agreement is subject to disciplinary action by the division for acts committed before, during, and after participation in the diversion program, including violations identified in the diversion agreement.
(10) The classification, retention, and disclosure of records relating to a licensee's participation in the diversion program is governed by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, except that any provision in the diversion agreement which addresses access to or release of diversion records regarding the licensee shall govern the access to and release of those records.
(11) Notwithstanding any other provision of this section, the fact that the licensee completed a diversion program and the contents of the diversion agreement itself may be considered by the division in determining the appropriate disciplinary action if the licensee is charged in the future with the same or similar conduct.
(12) Meetings regarding the diversion program are not subject to Title 52, Chapter 4, Open and Public Meetings Act.
(13) (a) If, during the course of the diversion agreement, information is brought to the attention of the director that the licensee made an intentional material misrepresentation of fact in the stipulation of facts contained in the diversion agreement, the director shall cause to be served upon the licensee an order to show cause specifying the information relied upon by the director and setting a time and place for hearing to determine whether or not the licensee made the intentional material misrepresentation of fact and whether the agreement should be terminated on that ground.
(b) Proceedings to terminate a diversion agreement on the grounds that the licensee made an intentional material misrepresentation of fact in the stipulation of facts contained in the diversion agreement and to issue an order of license revocation shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as follows:
(i) the notice of agency action shall be in the form of an order to show cause, which shall contain all of the information specified in Subsection [63-46b-3] 63G-4-201(2), except a statement that a written response to the order to show cause is required;
(ii) no written response to the order to show cause is required;
(iii) discovery is prohibited, but the division may issue subpoenas or other orders to compel production of necessary evidence on behalf of either party and all parties shall have access to information contained in the division's diversion file to the extent permitted by law;
(iv) the hearing shall be held only after timely notice to all parties; and
(v) any agency review or reconsideration of an order terminating a diversion agreement or of an order of license revocation pursuant to this Subsection (13) shall be limited to the division director's findings of fact, conclusions of law, and order which arose out of the order to show cause proceeding.
(c) Upon finding the licensee made an intentional material misrepresentation of fact in the stipulation of facts contained in the diversion agreement and that terminating the agreement is in the best interest of the public, and issuing an order to that effect, the director shall issue an order of license revocation, revoking the licensee's professional license.
(d) The order terminating the diversion agreement and the order of license revocation shall include findings of fact and conclusions of law as determined by the director following the hearing or as otherwise stipulated and agreed to by the parties.
(e) If the diversion agreement being terminated was entered into after the division had commenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall be considered to be merged into the order of license revocation and it may not constitute a basis for any separate disciplinary action against the licensee.
(f) The order terminating the diversion agreement and the order of license revocation shall notify the licensee of the right to request agency review or reconsideration.
(14) (a) If, during the course of the diversion agreement, information is brought to the attention of the director that the licensee has violated the diversion agreement and if it appears in the best interest of the public to proceed with charges, the director, after consultation with the diversion advisory committee, shall cause to be served upon the licensee an order to show cause specifying the facts relied upon by the director and setting a time and place for hearing to determine whether or not the licensee has violated the diversion agreement and whether the agreement should be terminated.
(b) Proceedings to terminate a diversion agreement and to issue an order of license suspension and probation, and proceedings to terminate the probation and lift the stay of a license suspension, shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as follows:
(i) the notice of agency action shall be in the form of an order to show cause, which shall contain all of the information specified in Subsection [63-46b-3] 63G-4-201(2), except a statement that a written response to the order to show cause is required;
(ii) no written response to the order to show cause shall be required;
(iii) discovery is prohibited, but the division may issue subpoenas or other orders to compel production of necessary evidence on behalf of either party and all parties shall have access to information contained in the division's diversion file to the extent permitted by law;
(iv) the hearing shall be held only after timely notice to all parties; and
(v) any agency review or reconsideration of an order terminating a diversion agreement or of an order of license suspension and probation pursuant to this Subsection (14) shall be limited to the division director's findings of fact, conclusions of law, and order which arose out of the order to show cause proceeding.
(c) (i) Upon finding the licensee has violated the diversion agreement and that terminating the agreement is in the best interest of the public, and issuing an order to that effect, the director shall issue an order of license suspension, suspending the licensee's professional license, but shall stay that suspension in favor of an order of probation, consisting of the same terms as those which comprised the diversion agreement.
(ii) The period of probation shall be the time period which remained under the diversion agreement, or five years from the date of the order of license suspension and probation, whichever is longer, unless otherwise agreed by the parties.
(iii) The period of probation is tolled during any time in which the licensee does not have an active license in the state.
(d) (i) The order terminating the diversion agreement and the order of license suspension and probation shall include findings of fact and conclusions of law as determined by the director following the hearing or as otherwise stipulated and agreed to by the parties.
(ii) The findings of fact may include those facts to which the licensee stipulated in the diversion agreement and any additional facts as the director may determine in the course of the hearing.
(e) If the diversion agreement being terminated was entered into after the division had commenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall be considered to be merged into the order of license suspension and probation and it may not constitute a basis for any separate disciplinary action against the licensee.
(f) The order terminating the diversion agreement and the order of license suspension and probation shall notify the licensee of the right to request agency review or reconsideration.
(g) (i) The terms and conditions of the order of license suspension and probation may be amended by order of the director, pursuant to motion or stipulation of the parties.
(ii) The order of the director on the motion shall not be subject to agency review, but is subject to agency reconsideration under Section [63-46b-13] 63G-4-302.
(h) (i) If, during the course of probation, the director has reason to believe the licensee has violated the order of suspension and probation, the director shall cause to be served upon the licensee an order to show cause why the probation should not be terminated and the stay of suspension lifted.
(ii) The order to show cause shall specify the facts relied upon by the director and shall set a time and place for hearing before the director to determine whether or not the licensee has violated the order of suspension and probation and whether that order should be terminated and the stay of suspension lifted.
(15) (a) Nothing in this section precludes the division from issuing an emergency order pursuant to Section [63-46b-20] 63G-4-502.
(b) If the division issues an emergency order against a licensee who is subject to a diversion agreement with the division, that diversion agreement shall be immediately and automatically terminated upon the issuance of the emergency order, without compliance with the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(c) (i) A licensee whose diversion agreement has been terminated pursuant to Subsection (15)(b) is entitled, upon request, to a posttermination hearing to challenge the termination of the diversion agreement.
(ii) The request shall be considered a request for agency action and shall comply with the requirements of Subsection [63-46b-3] 63G-4-201(3).
(iii) The division shall uphold the termination of the diversion agreement if it finds that:
(A) the licensee violated the diversion agreement; and
(B) it is in the best interest of the public to terminate the diversion agreement.
(16) The administrative statute of limitations for taking disciplinary action described in Subsection 58-1-401(5) shall be tolled during a diversion program.
Section 836. Section 58-3a-103 is amended to read:
58-3a-103
. Education and enforcement fund.(1) There is created a restricted special revenue fund known as the "Architects Education and Enforcement Fund."
(2) The fund consists of monies from:
(a) a surcharge fee placed on initial, renewal, and reinstatement licensure fees under this chapter in accordance with the following:
(i) the surcharge fee shall be determined by the department in accordance with Section [63-38-3.2] 63J-1-303; and
(ii) the surcharge fee shall not exceed 50% of the respective initial, renewal, or reinstatement licensure fee; and
(b) administrative penalties collected pursuant to this chapter.
(3) The fund shall earn interest and all interest earned on fund monies shall be deposited into the fund.
(4) The director may, with concurrence of the board, make distributions from the fund for the following purposes:
(a) education and training of licensees under this chapter;
(b) education and training of the public or other interested persons in matters concerning architectural laws and practices; and
(c) enforcement of this chapter by:
(i) investigating unprofessional or unlawful conduct; and
(ii) providing legal representation to the division when the division takes legal action against a person engaging in unprofessional or unlawful conduct.
(5) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess shall be transferred to the General Fund.
(6) The division shall report annually to the appropriate appropriations subcommittee of the Legislature concerning the fund.
Section 837. Section 58-3a-302 is amended to read:
58-3a-302
. Qualifications for licensure.(1) Except as provided in Subsection (2), each applicant for licensure as an architect shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) have graduated and received an earned bachelors or masters degree from an architecture program meeting criteria established by rule by the division in collaboration with the board;
(e) have successfully completed a program of diversified practical experience established by rule by the division in collaboration with the board;
(f) have successfully passed examinations established by rule by the division in collaboration with the board; and
(g) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualifications for license.
(2) Each applicant for licensure as an architect by endorsement shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) submit satisfactory evidence of:
(i) current licensure in good standing in a jurisdiction recognized by rule by the division in collaboration with the board; and
(ii) current certification from the National Council of Architectural Registration Boards; or
(iii) current license in good standing in a jurisdiction recognized by rule by the division in collaboration with the board; and
(iv) full-time employment as a licensed architect as a principal for at least five of the last seven years immediately preceding the date of the application; and
(e) have successfully passed any examination established by rule by the division in collaboration with the board; and
(f) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualifications for license.
Section 838. Section 58-3a-502 is amended to read:
58-3a-502
. Penalty for unlawful conduct.(1) (a) If upon inspection or investigation, the division concludes that a person has violated Subsections 58-1-501(1)(a) through (d) or Section 58-3a-501 or any rule or order issued with respect to Section 58-3a-501, and that disciplinary action is appropriate, the director or his designee from within the division for each alternative respectively, shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who violates Subsections 58-1-501(1)(a) through (d) or Section 58-3a-501 or any rule or order issued with respect to Section 58-3a-501, as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (1) and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsections 58-1-501(1)(a) through (d) or Section 58-3a-501 or any rule or order issued with respect to this section.
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-3a-401 may not be assessed through a citation.
(b) A citation shall:
(i) be in writing;
(ii) describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated;
(iii) clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(iv) clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(c) The division may issue a notice in lieu of a citation.
(d) Each citation issued under this section, or a copy of each citation, may be served upon any person whom a summons may be served in accordance with the Utah Rules of Civil Procedure and may be made personally or upon his agent by a division investigator or by any person specially designated by the director or by mail.
(e) If within 20 calendar days from the service of the citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review. The period to contest a citation may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(h) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(i) The director or his designee shall assess fines according to the following:
(i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000; and
(iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to $2,000 for each day of continued offense.
(2) An action initiated for a first or second offense which has not yet resulted in a final order of the division shall not preclude initiation of any subsequent action for a second or subsequent offense during the pendency of any preceding action. The final order on a subsequent action shall be considered a second or subsequent offense, respectively, provided the preceding action resulted in a first or second offense, respectively.
(3) Any penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located. Any county attorney or the attorney general of the state shall provide legal assistance and advice to the director in any action to collect the penalty. In any action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded to the division.
Section 839. Section 58-5a-302 is amended to read:
58-5a-302
. Qualifications to practice podiatry.An applicant for licensure to practice podiatry shall:
(1) submit an application in a form as prescribed by the division;
(2) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character;
(4) be a graduate of a college of podiatric medicine accredited by the Council of Podiatric Education;
(5) have completed one year of postgraduate training in a residency program recognized by the board; and
(6) pass examinations required by rule.
Section 840. Section 58-9-302 is amended to read:
58-9-302
. Qualifications for licensure.(1) Each applicant for licensure as a funeral service director shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of:
(i) a first or second degree felony;
(ii) a misdemeanor involving moral turpitude; or
(iii) any other crime that when considered with the duties and responsibilities of a funeral service director is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(d) have obtained a high school diploma or its equivalent or a higher education degree;
(e) have obtained an associate degree, or its equivalent, in mortuary science from a school of funeral service accredited by the American Board of Funeral Service Education or other accrediting body recognized by the U.S. Department of Education;
(f) have completed not less than 2,000 hours and 50 embalmings, over a period of not less than one year, of satisfactory performance in training as a licensed funeral service intern under the supervision of a licensed funeral service director; and
(g) obtain a passing score on examinations approved by the division in collaboration with the board.
(2) Each applicant for licensure as a funeral service intern shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of:
(i) a first or second degree felony;
(ii) a misdemeanor involving moral turpitude; or
(iii) any other crime that when considered with the duties and responsibilities of a funeral service intern is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(d) have obtained a high school diploma or its equivalent or a higher education degree; and
(e) obtain a passing score on an examination approved by the division in collaboration with the board.
(3) Each applicant for licensure as a funeral service establishment and each funeral service establishment licensee shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) have in place:
(i) an embalming room for preparing dead human bodies for burial or final disposition, which may serve one or more facilities operated by the applicant;
(ii) a refrigeration room that maintains a temperature of not more than 40 degrees fahrenheit for preserving dead human bodies prior to burial or final disposition, which may serve one or more facilities operated by the applicant; and
(iii) maintain at all times a licensed funeral service director who is responsible for the day-to-day operation of the funeral service establishment and who is personally available to perform the services for which the license is required;
(d) affiliate with a licensed preneed funeral arrangement sales agent or funeral service director if the funeral service establishment sells preneed funeral arrangements;
(e) file with the completed application a copy of each form of contract or agreement the applicant will use in the sale of preneed funeral arrangements; and
(f) provide evidence of appropriate licensure with the Insurance Department if the applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product to be sold by the provider or the provider's sales agent.
(4) Each applicant for licensure as a preneed funeral arrangement sales agent shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of:
(i) a first or second degree felony;
(ii) a misdemeanor involving moral turpitude; or
(iii) any other crime that when considered with the duties and responsibilities of a preneed funeral sales agent is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(d) have obtained a high school diploma or its equivalent or a higher education degree;
(e) have obtained a passing score on an examination approved by the division in collaboration with the board;
(f) affiliate with a licensed funeral service establishment; and
(g) provide evidence of appropriate licensure with the Insurance Department if the applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product.
Section 841. Section 58-9-504 is amended to read:
58-9-504
. Authority to promulgate rules.In addition to the authority granted under Section 58-1-106, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division in collaboration with the board shall establish by rule:
(1) the minimum requirements for a licensed funeral establishment for the following:
(a) physical facilities;
(b) equipment;
(c) instruments; and
(d) supplies;
(2) license cycles under Section 58-9-303;
(3) standards to protect the interests of buyers and potential buyers of preneed funeral arrangements under Section 58-9-701; and
(4) standards for preneed funeral arrangement trusts.
Section 842. Section 58-9-701 is amended to read:
58-9-701
. Preneed contract requirements.(1) (a) Every preneed funeral arrangement sold in Utah shall be evidenced by a written contract.
(b) The funeral service establishment shall maintain a copy of the contract until five years after all of its obligations under the contract have been executed.
(2) Each preneed contract form shall:
(a) be written in clear and understandable language printed in an easy-to-read type size and style;
(b) bear the preprinted name, address, telephone number, and license number of the funeral service establishment obligated to provide the services under the contract terms;
(c) be sequentially numbered by contract form;
(d) clearly identify that the contract is a guaranteed product contract;
(e) provide that a trust is established in accordance with the provisions of Section 58-9-702;
(f) if the contract is funded by an insurance policy or product, provide that the insurance policy or product is filed with the Insurance Department and meets the requirements of Title 31A, Insurance Code; and
(g) conform to other standards created by rule under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to protect the interests of buyers and potential buyers.
(3) A preneed contract shall provide for payment by the buyer in a form which may be liquidated by the funeral service establishment within 30 days after the day the funeral service establishment or sales agent receives the payment.
(4) A preneed contract may not be revocable by the funeral service establishment except:
(a) in the event of nonpayment; and
(b) under terms and conditions clearly set forth in the contract.
(5) (a) A preneed contract may not be revocable by the buyer or beneficiary except:
(i) in the event of:
(A) a substantial contract breach by the funeral service establishment; or
(B) substantial evidence that the funeral service establishment is or will be unable to provide the personal property or services to the beneficiary as provided under the contract; or
(ii) under terms and conditions clearly set forth in the contract.
(b) The contract shall contain a clear statement of the manner in which payments made on the contract shall be refunded to the buyer or beneficiary upon revocation by the beneficiary.
(6) (a) A preneed contract shall provide the buyer the option to require the funeral service establishment to furnish a written disclosure to a person who does not live at the same residence as the buyer.
(b) The buyer may choose:
(i) a full disclosure containing a copy of the entire preneed contract;
(ii) a partial disclosure informing the recipient of:
(A) the existence of a preneed contract; and
(B) the name, address, telephone number, and license number of the funeral service establishment obligated to provide the services under the preneed contract; or
(iii) not to require the funeral service establishment to furnish a written disclosure to another person.
Section 843. Section 58-11a-102 is amended to read:
58-11a-102
. Definitions.(1) "Approved barber or cosmetologist/barber apprenticeship" means an apprenticeship that meets the requirements of Subsection 58-11a-306(1) for barbers or Subsection 58-11a-306(2) for cosmetologist/barbers and the requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) "Approved esthetician apprenticeship" means an apprenticeship that meets the requirements of Subsection 58-11a-306(3) and the requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) "Approved master esthetician apprenticeship" means an apprenticeship that meets the requirements of Subsection 58-11a-306(4) and the requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) "Approved nail technician apprenticeship" means an apprenticeship that meets the requirements of Subsection 58-11a-306(5) and the requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(5) "Barber" means a person who is licensed under this chapter to engage in the practice of barbering.
(6) "Barber instructor" means a barber who is licensed under this chapter to teach barbering at a licensed barber school.
(7) "Board" means the Barber, Cosmetology/Barbering, Esthetics, Electrology, and Nail Technology Licensing Board created in Section 58-11a-201.
(8) "Cosmetologist/barber" means a person who is licensed under this chapter to engage in the practice of cosmetology/barbering.
(9) "Cosmetologist/barber instructor" means a cosmetologist/barber who is licensed under this chapter to teach cosmetology/barbering at a licensed cosmetology/barber school.
(10) "Direct supervision" means that the supervisor of an apprentice or the instructor of a student is immediately available for consultation, advice, instruction, and evaluation.
(11) "Electrologist" means a person who is licensed under this chapter to engage in the practice of electrology.
(12) "Electrologist instructor" means an electrologist who is licensed under this chapter to teach electrology at a licensed electrology school.
(13) "Esthetician" means a person who is licensed under this chapter to engage in the practice of esthetics.
(14) "Esthetician instructor" means a master esthetician who is licensed under this chapter to teach the practice of esthetics and the practice of master-level esthetics at a licensed esthetics school.
(15) "Fund" means the Barber, Cosmetologist/Barber, Esthetician, Electrologist, and Nail Technician Education and Enforcement Fund created in Section 58-11a-103.
(16) "Licensed barber or cosmetology/barber school" means a barber or cosmetology/barber school licensed under this chapter.
(17) "Licensed electrology school" means an electrology school licensed under this chapter.
(18) "Licensed esthetics school" means an esthetics school licensed under this chapter.
(19) "Licensed nail technology school" means a nail technology school licensed under this chapter.
(20) "Master esthetician" means an individual who is licensed under this chapter to engage in the practice of master-level esthetics.
(21) "Nail technician" means an individual who is licensed under this chapter to engage in the practice of nail technology.
(22) "Nail technician instructor" means a nail technician licensed under this chapter to teach the practice of nail technology in a licensed nail technology school.
(23) "Practice of barbering" means:
(a) cutting, clipping, or trimming the hair of the head of any person by the use of scissors, shears, clippers, or other appliances; and
(b) removing hair from the face or neck of a person by the use of shaving equipment.
(24) "Practice of barbering instruction" means instructing barbering in a licensed barber school.
(25) "Practice of basic esthetics" means any one of the following skin care procedures done on the head, face, neck, arms, hands, legs, feet, eyebrows, or eyelashes for cosmetic purposes and not for the treatment of medical, physical, or mental ailments:
(a) cleansing, stimulating, manipulating, exercising, applying oils, antiseptics, clays, or masks, manual extraction, including a comodone extractor, depilatories, waxes, tweezing, natural nail manicures or pedicures, or callous removal by buffing or filing;
(b) limited chemical exfoliation as defined by rule;
(c) removing superfluous hair by means other than electrolysis or laser procedures; or
(d) other esthetic preparations or procedures with the use of the hands, a high-frequency or galvanic electrical apparatus, or a heat lamp for cosmetic purposes and not for the treatment of medical, physical, or mental ailments.
(26) (a) "Practice of cosmetology/barbering" means:
(i) styling, arranging, dressing, curling, waving, permanent waving, cleansing, singeing, bleaching, dyeing, tinting, coloring, or similarly treating the hair of the head of a person;
(ii) cutting, clipping, or trimming the hair by the use of scissors, shears, clippers, or other appliances;
(iii) arching eyebrows, or tinting eyebrows or eyelashes, or both;
(iv) removing hair from the face, neck, shoulders, arms, back, torso, feet, bikini line, or legs of a person by the use of depilatories, waxing, or shaving equipment;
(v) cutting, curling, styling, fitting, measuring, or forming caps for wigs or hairpieces or both on the human head; or
(vi) practicing hair weaving or hair fusing or servicing previously medically implanted hair.
(b) The term "practice of cosmetology/barbering" includes:
(i) the practice of basic esthetics; and
(ii) the practice of nail technology.
(27) "Practice of cosmetology/barbering instruction" means instructing cosmetology/barbering in a licensed cosmetology/barber school.
(28) "Practice of electrology" means the removal of superfluous hair from the body of a person by the use of electricity.
(29) "Practice of electrology instruction" means instructing electrology in a licensed electrology school.
(30) "Practice of esthetics instruction" means instructing esthetics or master-level esthetics in a licensed esthetics school.
(31) (a) "Practice of master-level esthetics" means:
(i) any of the following when done for cosmetic purposes on the head, face, neck, torso, abdomen, back, arms, hands, legs, feet, eyebrows, or eyelashes and not for the treatment of medical, physical, or mental ailments:
(A) body wraps as defined by rule;
(B) hydrotherapy as defined by rule;
(C) chemical exfoliation as defined by rule;
(D) advanced pedicures as defined by rule;
(E) sanding, including microdermabrasion;
(F) advanced extraction; or
(G) other esthetic preparations or procedures with the use of:
(I) the hands; or
(II) a mechanical or electrical apparatus which is approved for use by division rule for beautifying or similar work performed on the body for cosmetic purposes and not for the treatment of a medical, physical, or mental ailment; and
(ii) lymphatic massage by manual or other means.
(b) Notwithstanding the provisions of Subsection (31)(a), a master-level esthetician may perform procedures listed in Subsection (31)(a)(i) for noncosmetic purposes if done under the supervision of a licensed health care practitioner acting within the scope of his or her license.
(c) The term "practice of master-level esthetics" includes the practice of esthetics.
(32) "Practice of nail technology" means to trim, cut, clean, manicure, shape, massage, or enhance the appearance of the hands, feet, and nails of an individual by the use of hands, mechanical, or electrical preparation, antiseptic, lotions, or creams, including the application and removal of sculptured or artificial nails.
(33) "Practice of nail technology instruction" means instructing nail technology in a licensed nail technician school.
(34) "Recognized barber school" means a barber school located in a state other than Utah, whose students, upon graduation, are recognized as having completed the educational requirements for licensure in that state.
(35) "Recognized cosmetology/barber school" means a cosmetology/barber school located in a state other than Utah, whose students, upon graduation, are recognized as having completed the educational requirements for licensure in that state.
(36) "Recognized electrology school" means an electrology school located in a state other than Utah, whose students, upon graduation, are recognized as having completed the educational requirements for licensure in that state.
(37) "Recognized esthetics school" means an esthetics school located in a state other than Utah, whose students, upon graduation, are recognized as having completed the educational requirements for licensure in that state.
(38) "Recognized nail technology school" means a nail technology school located in a state other than Utah, whose students, upon graduation, are recognized as having completed the educational requirements for licensure in that state.
(39) "Salon" means a place, shop, or establishment in which cosmetology/barbering, esthetics, electrology, or nail technology is practiced.
(40) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-11a-502.
(41) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-11a-501 and as may be further defined by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 844. Section 58-11a-302 is amended to read:
58-11a-302
. Qualifications for licensure.(1) Each applicant for licensure as a barber shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of:
(i) graduation from a licensed or recognized barber school whose curriculum consists of a minimum of 1,000 hours of instruction or the equivalent number of credit hours over a period of not less than six months;
(ii) (A) having graduated from a recognized barber school whose curriculum consists of less than 1,000 hours of instruction or the equivalent number of credit hours; and
(B) having practiced as a licensed barber for a period of not less than 2,000 hours; or
(iii) having completed an approved barber apprenticeship; and
(e) meet the examination requirement established by rule.
(2) Each applicant for licensure as a barber instructor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory documentation that the applicant is currently licensed as a barber;
(d) be of good moral character;
(e) provide satisfactory documentation of completion of:
(i) an instructor training program conducted by a barber school consisting of a minimum of 500 hours or the equivalent number of credit hours; or
(ii) a minimum of 2,000 hours of experience as a barber; and
(f) meet the examination requirement established by rule.
(3) Each applicant for licensure as a barber school shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide satisfactory documentation:
(i) of appropriate registration with the Division of Corporations and Commercial Code;
(ii) of business licensure from the city, town, or county in which the school is located;
(iii) that the applicant's physical facilities comply with the requirements established by rule; and
(iv) that the applicant meets the standards for barber schools, including staff and accreditation requirements, established by rule.
(4) Each applicant for licensure as a cosmetologist/barber shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of:
(i) graduation from a licensed or recognized cosmetology/barber school whose curriculum consists of a minimum of 2,000 hours of instruction, with full flexibility within the 2,000 hours, or the equivalent number of credit hours over a period of not less than 12 months;
(ii) (A) having graduated from a recognized cosmetology/barber school whose curriculum consists of less than 2,000 hours of instruction, with full flexibility within the 2,000 hours, or the equivalent number of credit hours; and
(B) having practiced as a licensed cosmetologist/barber for a period of not less than 4,000 hours; or
(iii) having completed an approved cosmetology/barber apprenticeship; and
(e) meet the examination requirement established by rule.
(5) Each applicant for licensure as a cosmetologist/barber instructor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory documentation that the applicant is currently licensed as a cosmetologist/barber;
(d) be of good moral character;
(e) provide satisfactory documentation of completion of:
(i) an instructor training program conducted by a cosmetology/barber school consisting of a minimum of 1,000 hours or the equivalent number of credit hours; or
(ii) a minimum of 4,000 hours of experience as a cosmetologist/barber; and
(f) meet the examination requirement established by rule.
(6) Each applicant for licensure as a cosmetologist/barber school shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide satisfactory documentation:
(i) of appropriate registration with the Division of Corporations and Commercial Code;
(ii) of business licensure from the city, town, or county in which the school is located;
(iii) that the applicant’s physical facilities comply with the requirements established by rule; and
(iv) that the applicant meets the standards for cosmetology schools, including staff and accreditation requirements, established by rule.
(7) Each applicant for licensure as an electrologist shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having graduated from a licensed or recognized electrology school after completing a curriculum of 600 hours of instruction or the equivalent number of credit hours; and
(e) meet the examination requirement established by rule.
(8) Each applicant for licensure as an electrologist instructor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory documentation that the applicant is currently licensed as an electrologist;
(d) be of good moral character;
(e) provide satisfactory documentation of completion of:
(i) an instructor training program conducted by an electrology school consisting of a minimum of 175 hours or the equivalent number of credit hours; or
(ii) a minimum of 1,000 hours of experience as an electrologist; and
(f) meet the examination requirement established by rule.
(9) Each applicant for licensure as an electrologist school shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide satisfactory documentation:
(i) of appropriate registration with the Division of Corporations and Commercial Code;
(ii) of business licensure from the city, town, or county in which the school is located;
(iii) that the applicant's facilities comply with the requirements established by rule; and
(iv) that the applicant meets the standards for electrologist schools, including staff, curriculum, and accreditation requirements, established by rule.
(10) Each applicant for licensure as an esthetician shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character; and
(d) provide satisfactory documentation of one of the following:
(i) (A) graduation from a licensed or recognized esthetic school whose curriculum consists of not less than 15 weeks of esthetic instruction with a minimum of 600 hours or the equivalent number of credit hours; and
(B) having met the examination requirement established by division rule;
(ii) (A) completion of an approved esthetician apprenticeship; and
(B) having met the examination requirement established by division rule; or
(iii) having met the examination requirement established by division rule prior to December 31, 2001.
(11) Each applicant for licensure as a master esthetician shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character; and
(d) provide satisfactory documentation of one of the following:
(i) (A) completion of 1,200 hours of training or the equivalent number of credit hours at a licensed or recognized esthetics school;
(B) having met the examination requirement established by division rule; and
(C) for practice of lymphatic massage, provide satisfactory documentation to show completion of 200 hours of training or equivalent number of credit hours in lymphatic massage;
(ii) (A) completion of an approved master esthetician apprenticeship; and
(B) having met the examination requirement established by division rule; or
(iii) having met the examination requirement established by division rule prior to December 31, 2001.
(12) Each applicant for licensure as an esthetician instructor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory documentation that the applicant is currently licensed as a master esthetician;
(d) be of good moral character;
(e) provide satisfactory documentation of completion of:
(i) an instructor training program conducted by a licensed or recognized esthetics school consisting of a minimum of 300 hours or the equivalent number of credit hours; or
(ii) a minimum of 1,000 hours of experience in esthetics; and
(f) meet the examination requirement established by rule.
(13) Each applicant for licensure as an esthetics school shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide satisfactory documentation:
(i) of appropriate registration with the Division of Corporations and Commercial Code;
(ii) of business licensure from the city, town, or county in which the school is located;
(iii) that the applicant's physical facilities comply with the requirements established by rule; and
(iv) that the applicant meets the standards for esthetics schools, including staff, curriculum, and accreditation requirements, established by division rule made in collaboration with the board.
(14) Each applicant for licensure as a nail technician shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character; and
(d) provide satisfactory documentation of one of the following:
(i) (A) graduation from a licensed or recognized nail technology school whose curriculum consists of not less than 300 hours or the equivalent number of credit hours of not more than eight hours a day and six days a week during the program; and
(B) having met the examination requirement established by division rule;
(ii) (A) having completed an approved nail technician apprenticeship; and
(B) having met the examination requirement established by division rule; or
(iii) having met the examination requirement established by division rule prior to December 31, 2001.
(15) Each applicant for licensure as a nail technician instructor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory documentation that the applicant is currently licensed as a nail technician;
(d) be of good moral character;
(e) provide satisfactory documentation of completion of:
(i) an instructor training program conducted by a licensed or recognized nail technology school consisting of a minimum of 150 hours or the equivalent number of credit hours; or
(ii) a minimum of 600 hours of experience in nail technology; and
(f) meet the examination requirement established by rule.
(16) Each applicant for licensure as a nail technology school shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide satisfactory documentation:
(i) of appropriate registration with the Division of Corporations and Commercial Code;
(ii) of business licensure from the city, town, or county in which the school is located;
(iii) that the applicant's facilities comply with the requirements established by rule; and
(iv) that the applicant meets the standards for nail technology schools, including staff, curriculum, and accreditation requirements, established by rule.
(17) Each applicant for licensure under this chapter whose education in the field for which a license is sought was completed at a foreign school may satisfy the educational requirement for licensure by demonstrating, to the satisfaction of the division, the educational equivalency of the foreign school education with a licensed school under this chapter.
Section 845. Section 58-11a-503 is amended to read:
58-11a-503
. Penalties.(1) Unless Subsection (2) applies, an individual who commits an act of unlawful conduct under Section 58-11a-502 or who fails to comply with a citation issued under this section after it is final is guilty of a class A misdemeanor.
(2) Sexual conduct that violates Section 58-11a-502 and Title 76, Utah Criminal Code, shall be subject to the applicable penalties in Title 76.
(3) Grounds for immediate suspension of a licensee's license by the division include the issuance of a citation for violation of Subsection 58-11a-502(1), (2), or (4).
(4) (a) If upon inspection or investigation, the division concludes that a person has violated the provisions of Subsection 58-11a-502(1), (2), or (4), or a rule or order issued with respect to Subsection 58-11a-502(1), (2), or (4), and that disciplinary action is appropriate, the director or the director's designee from within the division shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who is in violation of Subsection 58-11a-502(1), (2), or (4), as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (4) and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsection 58-11a-502(1), (2), or (4).
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-11a-401 may not be assessed through a citation.
(b) (i) Each citation shall be in writing and describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated.
(ii) The citation shall clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(iii) The citation shall clearly explain the consequences of failure to timely contest the citation or to make payment of a fine assessed by the citation within the time specified in the citation.
(c) Each citation issued under this section, or a copy of each citation, may be served upon a person upon whom a summons may be served in accordance with the Utah Rules of Civil Procedure and may be made personally or upon the person's agent by a division investigator or by a person specially designated by the director or by mail.
(d) (i) If within 20 calendar days from the service of a citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review.
(ii) The period to contest a citation may be extended by the division for cause.
(e) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(f) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(g) No citation may be issued under this section after the expiration of six months following the occurrence of a violation.
(h) Fines shall be assessed by the director or the director's designee according to the following:
(i) for a first offense under Subsection (4)(a), a fine of up to $1,000;
(ii) for a second offense under Subsection (4)(a), a fine of up to $2,000; and
(iii) for any subsequent offense under Subsection (4)(a), a fine of up to $2,000 for each day of continued offense.
(i) (i) For purposes of issuing a final order under this section and assessing a fine under Subsection (4)(h), an offense constitutes a second or subsequent offense if:
(A) the division previously issued a final order determining that a person committed a first or second offense in violation of Subsection 58-11a-502(1), (2), or (4); or
(B) (I) the division initiated an action for a first or second offense;
(II) no final order has been issued by the division in the action initiated under Subsection (4)(i)(i)(B)(I);
(III) the division determines during an investigation that occurred after the initiation of the action under Subsection (4)(i)(i)(B)(I) that the person committed a second or subsequent violation of Subsection 58-11a-502(1), (2), or (4); and
(IV) after determining that the person committed a second or subsequent offense under Subsection (4)(i)(i)(B)(III), the division issues a final order on the action initiated under Subsection (4)(i)(i)(B)(I).
(ii) In issuing a final order for a second or subsequent offense under Subsection (4)(i)(i), the division shall comply with the requirements of this section.
(5) (a) A penalty imposed by the director under Subsection (4)(h) shall be deposited into the Barber, Cosmetologist/Barber, Esthetician, Electrologist, and Nail Technician Education and Enforcement Fund.
(b) A penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located.
(c) A county attorney or the attorney general of the state is to provide legal assistance and advice to the director in an action to collect the penalty.
(d) A court shall award reasonable attorney fees and costs in an action brought to enforce the provisions of this section.
Section 846. Section 58-13-5 is amended to read:
58-13-5
. Information relating to adequacy and quality of medical care -- Immunity from liability.(1) As used in this section, "health care provider" has the same meaning as defined in Section 78-14-3.
(2) (a) The division, and the boards within the division that act regarding the health care providers defined in this section, shall adopt rules to establish procedures to obtain information concerning the quality and adequacy of health care rendered to patients by those health care providers.
(b) It is the duty of an individual licensed under Title 58, Occupations and Professions, as a health care provider to furnish information known to him with respect to health care rendered to patients by any health care provider licensed under Title 58, Occupations and Professions, as the division or a board may request during the course of the performance of its duties.
(3) A health care facility as defined in Section 26-21-2 which employs, grants privileges to, or otherwise permits a licensed health care provider to engage in licensed practice within the health care facility, and any professional society of licensed health care providers, shall report any of the following events in writing to the division within sixty days after the event occurs regarding the licensed health care provider:
(a) terminating employment of an employee for cause related to the employee's practice as a licensed health care provider;
(b) terminating or restricting privileges for cause to engage in any act or practice related to practice as a licensed health care provider;
(c) terminating, suspending, or restricting membership or privileges associated with membership in a professional association for acts of unprofessional, unlawful, incompetent, or negligent conduct related to practice as a licensed health care provider;
(d) subjecting a licensed health care provider to disciplinary action for a period of more than 30 days;
(e) a finding that a licensed health care provider has violated professional standards or ethics;
(f) a finding of incompetence in practice as a licensed health care provider;
(g) a finding of acts of moral turpitude by a licensed health care provider; or
(h) a finding that a licensed health care provider is engaged in abuse of alcohol or drugs.
(4) This section does not prohibit any action by a health care facility, or professional society comprised primarily of licensed health care providers to suspend, restrict, or revoke the employment, privileges, or membership of a health care provider.
(5) The data and information obtained in accordance with this section is classified as a "protected" record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(6) (a) Any person or organization furnishing information in accordance with this section in response to the request of the division or a board, or voluntarily, is immune from liability with respect to information provided in good faith and without malice, which good faith and lack of malice is presumed to exist absent clear and convincing evidence to the contrary.
(b) The members of the board are immune from liability for any decisions made or actions taken in response to information acquired by the board if those decisions or actions are made in good faith and without malice, which good faith and lack of malice is presumed to exist absent clear and convincing evidence to the contrary.
(7) An individual who is a member of a hospital administration, board, committee, department, medical staff, or professional organization of health care providers is, and any hospital, other health care entity, or professional organization conducting or sponsoring the review, immune from liability arising from participation in a review of a health care provider's professional ethics, medical competence, moral turpitude, or substance abuse.
(8) This section does not exempt a person licensed under Title 58, Occupations and Professions, from complying with any reporting requirements established under state or federal law.
Section 847. Section 58-15-4 is amended to read:
58-15-4
. Licensure requirements.(1) An applicant for a license under this chapter shall submit a written application to the division, verified under oath, that the applicant is of good moral character as it relates to the functions and responsibilities of the practice of administration of a health facility.
(2) After July 1, 1985, all new applicants are required to have, in addition to Subsection (1), the education or experience requirements as established by rule and as approved by the division.
(3) The applicant shall pay a fee to the Department of Commerce determined by it pursuant to Section [63-38-3.2] 63J-1-303 for admission to the examination, for an initial license, and for a renewal license.
(4) The applicant shall pass a written examination in subjects determined by the board. Upon passing the examination and payment of the license fee, the board shall recommend issuance to the applicant of a license to practice as a health facility administrator.
(5) A temporary license may be issued without examination to a person who meets the requirements established by statute and by rule for an administrator. The temporary license may be issued only to fill a position of administrator that unexpectedly becomes vacant and may be issued for only a single period not to exceed six months.
(6) A license may be granted to an applicant who is a licensed nursing home administrator in another state if the standards for licensure in the other state are equivalent to those criteria set forth in Subsections (1) and (2), and if the applicant is otherwise qualified.
Section 848. Section 58-16a-302 is amended to read:
58-16a-302
. Qualifications for licensure.(1) Each applicant for licensure as an optometrist shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the division under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) (i) be a doctoral graduate of a recognized school of optometry accredited by:
(A) a regional accrediting body recognized by the Council on Post-Secondary Education; and
(B) the American Optometric Association's Council on Optometric Education; or
(ii) be a graduate of a school of optometry located outside the United States that meets the criteria that would qualify the school for accreditation under Subsection (1)(d)(i), as demonstrated by the applicant for licensure;
(e) if the applicant graduated from a recognized school of optometry prior to July 1, 1996, have successfully completed a course of study satisfactory to the division, in consultation with the board, in general and ocular pharmacology and emergency medical care;
(f) have passed examinations approved by the division in consultation with the board that include:
(i) a standardized national optometry examination;
(ii) a standardized clinical examination;
(iii) a standardized national therapeutics examination; and
(iv) the Utah Optometry Law Examination; and
(g) meet with the board and representatives of the division, if requested by either party, for the purpose of evaluating the applicant's qualifications for licensure.
(2) An applicant for licensure as an optometrist qualifying under the endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in good standing in any state of the United States; and
(b) have been actively engaged in the legal practice of optometry for not less than 3,200 hours in the immediately preceding two years, in a manner that is consistent with the legal practice of optometry in this state.
Section 849. Section 58-17b-303 is amended to read:
58-17b-303
. Qualifications for licensure as a pharmacist.(1) Each applicant for licensure as a pharmacist shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) produce satisfactory evidence of good moral character as it relates to the applicant's ability to practice pharmacy;
(d) complete a criminal background check and be free from criminal convictions as required by Section 58-17b-307, or as described in Section 58-1-501;
(e) have no physical or mental condition of a nature which prevents the applicant from engaging in the practice of pharmacy with reasonable skill, competency, and safety to the public;
(f) have graduated and received a professional entry degree from a school or college of pharmacy which is accredited by the Accreditation Council on Pharmacy Education;
(g) have completed an internship meeting standards established by division rule made in collaboration with the board; and
(h) have successfully passed examinations required by division rule made in collaboration with the board.
(2) Each applicant for licensure as a pharmacist whose pharmacy education was completed at a foreign pharmacy school shall, in addition to the requirements under Subsections (1)(a) through (e), (g), and (h), obtain a certification of equivalency from a credentialing agency required by division rule made in collaboration with the board.
(3) Each applicant for a license by endorsement as a pharmacist under this section shall:
(a) submit a written application in the form prescribed by the division;
(b) pay the fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character as required of applicants for licensure as pharmacists under Subsection (1);
(d) complete a criminal background check and be free from criminal convictions as required by Section 58-17b-307, or as otherwise described in Section 58-1-501;
(e) have no physical or mental condition of a nature which prevents the applicant from engaging in the practice of pharmacy with reasonable skill, competency, and safety to the public;
(f) have lawfully practiced as a licensed pharmacist a minimum of 2,000 hours in the four years immediately preceding the date of application;
(g) produce satisfactory evidence of completing the professional education required under Subsection (1);
(h) be currently licensed in good standing as a pharmacist in another state, territory, or possession of the United States;
(i) produce satisfactory evidence that the examination requirements are or were at the time the license was issued, equal to those of this state; and
(j) pass the jurisprudence examination prescribed by division rule made in collaboration with the board.
Section 850. Section 58-17b-304 is amended to read:
58-17b-304
. Qualifications for licensure of pharmacy intern.Each applicant for licensure as a pharmacy intern shall:
(1) submit an application in a form prescribed by the division;
(2) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(3) produce satisfactory evidence of good moral character as it relates to the applicant's ability to practice pharmacy;
(4) complete a criminal background check and be free from criminal convictions as required by Section 58-17b-307, or as otherwise described in Section 58-1-501;
(5) have no physical or mental condition of a nature which prevents the applicant from engaging in the practice of pharmacy with reasonable skill, competency, and safety to the public;
(6) meet the preliminary educational qualifications required by division rule made in collaboration with the board; and
(7) meet one of the following educational criteria:
(a) be a current pharmacy student, a resident, or fellow in a program approved by division rule made in collaboration with the board;
(b) have graduated and received a pharmacy degree from a school or college of pharmacy which is accredited by the Accreditation Council on Pharmacy Education but not completed the internship hours required by division rule for licensure as a pharmacist; or
(c) have graduated from a foreign pharmacy school and received certification of equivalency from a credentialing agency approved by division rule made in collaboration with the board.
Section 851. Section 58-17b-305 is amended to read:
58-17b-305
. Qualifications for licensure of pharmacy technician.(1) Each applicant for licensure as a pharmacy technician shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) produce satisfactory evidence of good moral character as it relates to the applicant's ability to practice pharmacy;
(d) complete a criminal background check and be free from criminal convictions as required by Section 58-17b-307, or as otherwise permitted by Section 58-1-501;
(e) have no physical or mental condition of a nature which prevents the applicant from engaging in practice as a pharmacy technician with reasonable skill, competency, and safety to the public;
(f) have completed a board approved program and curriculum of education and training, meeting standards established by division rule made in collaboration with the board; and
(g) successfully complete the examinations requirement within the time periods established by division rule made in collaboration with the board.
(2) A pharmacist whose license has been denied, revoked, suspended, or restricted for disciplinary purposes shall not be eligible to be a licensed pharmacy technician while on probation with the division.
Section 852. Section 58-17b-306 is amended to read:
58-17b-306
. Qualifications for licensure as a pharmacy.(1) Each applicant for licensure under this section, except for those applying for a class D license, shall:
(a) submit a written application in the form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) satisfy the division that the applicant, and each owner, officer, or manager of the applicant have not engaged in any act, practice, or omission, which when considered with the duties and responsibilities of a licensee under this section indicates there is cause to believe that issuing a license to the applicant is inconsistent with the interest of the public's health, safety, or welfare;
(d) demonstrate the licensee's operations will be in accordance with all federal, state, and local laws relating to the type of activity engaged in by the licensee, including regulations of the Federal Drug Enforcement Administration and Food and Drug Administration;
(e) maintain operating standards established by division rule made in collaboration with the board; and
(f) acknowledge the division's authority to inspect the licensee's business premises pursuant to Section 58-17b-103.
(2) Each applicant applying for a class D license shall:
(a) submit a written application in the form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) present to the division verification of licensure in the state where physically located and verification that such license is in good standing;
(d) provide a statement of the scope of pharmacy services that will be provided and a detailed description of the protocol as described by rule by which pharmacy care will be provided, including any collaborative practice arrangements with other health care practitioners;
(e) sign an affidavit attesting that any healthcare practitioners employed by the applicant and physically located in Utah have the appropriate license issued by the division and in good standing; and
(f) sign an affidavit attesting that the applicant will abide by the pharmacy laws and regulations of the jurisdiction in which the pharmacy is located.
(3) Each license issued under this section shall be issued for a single, specific address, and is not transferable or assignable.
Section 853. Section 58-17b-307 is amended to read:
58-17b-307
. Qualification for licensure -- Criminal background checks.(1) An applicant for licensure under this chapter shall submit fingerprint cards in a form acceptable to the division at the time the license application is filed and shall consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the Federal Bureau of Investigation regarding the application.
(2) The division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check for each applicant through the National Criminal History System (NCIC) or any successor system.
(3) If convicted of one or more felonies, an applicant must receive an absolute discharge from the sentences for all felony convictions five or more years prior to the date of filing an application for licensure under this chapter.
(4) For purposes of conducting the criminal background check required in Subsection (1), the division shall have direct access to criminal background information maintained pursuant to Title 53, Chapter 10, Part 2, Bureau of Criminal Identification.
(5) Any new pharmacist, pharmacy intern, or pharmacy technician license issued under this section shall be conditional, pending completion of the criminal background check. Notwithstanding [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, if the criminal background check discloses the applicant has failed to accurately disclose a criminal history, the license shall be immediately and automatically revoked upon notice to the licensee.
(6) Any person whose conditional license has been revoked under Subsection (5) shall be entitled to a postrevocation hearing to challenge the revocation. The hearing shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 854. Section 58-17b-504 is amended to read:
58-17b-504
. Penalty for unlawful or unprofessional conduct -- Fines -- Citations.(1) Any person who violates any of the unlawful conduct provisions of Subsection 58-1-501(1)(a)(i) and Subsections 58-17b-501(7) and (11) is guilty of a third degree felony.
(2) Any person who violates any of the unlawful conduct provisions of Subsection 58-1-501(1)(a)(ii), Subsections 58-1-501(1)(b) through (e), and Section 58-17b-501, except Subsections 58-17b-501(7) and (11), is guilty of a class A misdemeanor.
(3) (a) Subject to Subsection (5) and in accordance with Section 58-17b-401, for acts of unprofessional or unlawful conduct, the division may:
(i) assess administrative penalties; and
(ii) take any other appropriate administrative action.
(b) An administrative penalty imposed pursuant to this section shall be deposited in the General Fund as a dedicated credit to be used by the division for pharmacy licensee education and enforcement as provided in Section 58-17b-505.
(4) If a licensee has been convicted of violating Section 58-17b-501 prior to an administrative finding of a violation of the same section, the licensee may not be assessed an administrative fine under this chapter for the same offense for which the conviction was obtained.
(5) (a) If upon inspection or investigation, the division concludes that a person has violated the provisions of Section 58-17b-501 or 58-17b-502, Chapter 37, Utah Controlled Substances Act, Chapter 1, Division of Occupational and Professional Licensing Act, or any rule or order issued with respect to these provisions, and that disciplinary action is appropriate, the director or the director's designee from within the division shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Any person who is in violation of the provisions of Section 58-17b-501 or 58-17b-502, Chapter 37, Utah Controlled Substances Act, Chapter 1, Division of Occupational and Professional Licensing Act, or any rule or order issued with respect to these provisions, as evidenced by an uncontested citation, a stipulated settlement, or a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (5) of up to $10,000 per single violation or up to $2,000 per day of ongoing violation, whichever is greater, in accordance with a fine schedule established by rule, and may, in addition to or in lieu of, be ordered to cease and desist from violating the provisions of Section 58-17b-501 or 58-17b-502, Chapter 37, Utah Controlled Substances Act, Chapter 1, Division of Occupational and Professional Licensing Act, or any rule or order issued with respect to these provisions.
(c) Except for an administrative fine and a cease and desist order, the licensure sanctions cited in Section 58-17b-401 may not be assessed through a citation.
(d) Each citation shall be in writing and specifically describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated. The citation shall clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation in order to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. The citation shall clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(e) Each citation issued under this section, or a copy of each citation, may be served upon any person upon whom a summons may be served:
(i) in accordance with the Utah Rules of Civil Procedure;
(ii) personally or upon the person's agent by a division investigator or by any person specially designated by the director; or
(iii) by mail.
(f) If within 20 calendar days from the service of a citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review. The period to contest the citation may be extended by the division for cause.
(g) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with the citation after it becomes final.
(h) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(i) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
Section 855. Section 58-17b-701 is amended to read:
58-17b-701
. Mentally incompetent or incapacitated pharmacist -- Division action and procedures.(1) As used in this section:
(a) "Incapacitated person" has the same definition as in Section 75-1-201.
(b) "Mentally ill" has the same definition as in Section 62A-15-602.
(2) If a court of competent jurisdiction determines a pharmacist is an incapacitated person, or that he is mentally ill and unable to safely engage in the practice of pharmacy, the director shall immediately suspend the license of the pharmacist upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the pharmacist, in writing, of the suspension.
(3) (a) If the division and a majority of the board find reasonable cause to believe a pharmacist, who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing pharmacy with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the pharmacist with a notice of hearing on the sole issue of the capacity of the pharmacist to competently and safely engage in the practice of pharmacy.
(b) The hearing shall be conducted under Section 58-1-109 and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every pharmacist who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting at his own expense to an immediate mental or physical examination when directed in writing by the division, with the consent of a majority of the board, to do so; and
(ii) the admissibility of the reports of the examining practitioner's testimony or examination in any proceeding regarding the license of the pharmacist, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the pharmacist is mentally ill or incapacitated or otherwise unable to practice pharmacy with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the pharmacist's patients or the general public.
(c) (i) Failure of a pharmacist to submit to the examination ordered under this section is a ground for the division's immediate suspension of the pharmacist's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the pharmacist and was not related directly to the illness or incapacity of the pharmacist.
(5) (a) A pharmacist whose license is suspended under Subsection (2) or (4) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this Subsection (5) shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the pharmacist's patients or the general public.
(6) A pharmacist whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the pharmacist, under procedures established by division rule, regarding any change in the pharmacist's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of pharmacy; and
(b) he is qualified to have his licensure to practice under this chapter restored completely or in part.
Section 856. Section 58-20a-302 is amended to read:
58-20a-302
. Qualifications for licensure.(1) Except as provided in Subsection (2), an applicant for licensure as an environmental health scientist shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) hold a bachelor's degree from an accredited program in a university or college, which degree includes completion of specific coursework as defined by rule;
(e) pass an examination as determined by division rule in collaboration with the board; and
(f) pass the Utah Law and Rules Examination for Environmental Health Scientists administered by the division.
(2) An applicant for licensure who is currently actively engaged in the practice of environmental health science in Utah on July 1, 1995, and has been practicing in Utah for at least three consecutive months immediately prior to July 1, 1995, shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) hold a bachelor's degree from an accredited program in a university or college, which degree includes completion of specific coursework as defined by rule;
(e) pass the Utah Law and Rules Examination for Environmental Health Scientists administered by the division; and
(f) submit an affidavit from the applicant's immediate supervisor in his employment, attesting to the applicant's competence to practice environmental health science.
(3) An applicant for licensure as an environmental health scientist-in-training shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) hold a bachelor's degree from an accredited program in a university or college, which degree includes completion of specific coursework as defined by rule;
(e) pass the Utah Law and Rules Examination for Environmental Health Scientists administered by the division; and
(f) present evidence acceptable to the division and the board that the applicant, when licensed, will practice as an environmental health scientist-in-training only under the general supervision of a supervising environmental health scientist licensed under this chapter.
Section 857. Section 58-22-103 is amended to read:
58-22-103
. Education and enforcement fund.(1) There is created a restricted special revenue fund known as the "Professional Engineer, Professional Structural Engineer, and Professional Land Surveyor Education and Enforcement Fund."
(2) The fund consists of monies from:
(a) a surcharge fee placed on initial, renewal, and reinstatement licensure fees under this chapter in accordance with the following:
(i) the surcharge fee shall be established by the department in accordance with Section [63-38-3.2] 63J-1-303; and
(ii) the surcharge fee shall not exceed 50% of the respective initial, renewal, or reinstatement licensure fee; and
(b) administrative penalties collected pursuant to this chapter.
(3) The fund shall earn interest and all interest earned on fund monies shall be deposited into the fund.
(4) The director may, with concurrence of the board, make distributions from the fund for the following purposes:
(a) education and training of licensees under this chapter;
(b) education and training of the public or other interested persons in matters concerning engineering, structural engineering, and land surveying laws and practices; and
(c) enforcement of this chapter by:
(i) investigating unprofessional or unlawful conduct; and
(ii) providing legal representation to the division when the division takes legal action against a person engaging in unprofessional or unlawful conduct.
(5) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess shall be transferred to the General Fund.
(6) The division shall report annually to the appropriate appropriations subcommittee of the Legislature concerning the fund.
Section 858. Section 58-22-302 is amended to read:
58-22-302
. Qualifications for licensure.(1) Each applicant for licensure as a professional engineer shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) (i) have graduated and received a bachelors or masters degree from an engineering program meeting criteria established by rule by the division in collaboration with the board; or
(ii) have completed the Transportation Engineering Technology and Fundamental Engineering College Program prior to July 1, 1998, under the direction of the Utah Department of Transportation and as certified by the Utah Department of Transportation;
(e) have successfully completed a program of qualifying experience established by rule by the division in collaboration with the board;
(f) have successfully passed examinations established by rule by the division in collaboration with the board; and
(g) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualification for licensure.
(2) Each applicant for licensure as a professional structural engineer shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) have graduated and received an earned bachelors or masters degree from an engineering program meeting criteria established by rule by the division in collaboration with the board;
(e) have successfully completed three years of licensed professional engineering experience established by rule by the division in collaboration with the board;
(f) have successfully passed examinations established by rule by the division in collaboration with the board; and
(g) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualification for licensure.
(3) Each applicant for licensure as a professional land surveyor shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) (i) have graduated and received an associates, bachelors, or masters degree from a land surveying program, or an equivalent land surveying program, such as a program offered by the Utah College of Applied Technology as approved by the State Board of Regents, established by rule by the division in collaboration with the board, and have successfully completed a program of qualifying experience in land surveying established by rule by the division in collaboration with the board; or
(ii) have successfully completed a program of qualifying experience in land surveying prior to January 1, 2007, in accordance with rules established by the division in collaboration with the board;
(e) have successfully passed examinations established by rule by the division in collaboration with the board; and
(f) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualification for licensure.
(4) Each applicant for licensure by endorsement shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) submit satisfactory evidence of:
(i) current licensure in good standing in a jurisdiction recognized by rule by the division in collaboration with the board;
(ii) having successfully passed any examination established by rule by the division in collaboration with the board; and
(iii) full-time employment as a licensed professional engineer, professional structural engineer, or professional land surveyor as a principal for at least five of the last seven years immediately preceding the date of the application; and
(e) meet with the board or representative of the division upon request for the purpose of evaluating the applicant's qualifications for license.
(5) The rules made to implement this section shall be in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 859. Section 58-22-503 is amended to read:
58-22-503
. Penalty for unlawful conduct.(1) (a) If upon inspection or investigation, the division concludes that a person has violated Subsections 58-1-501(1)(a) through (d) or Section 58-22-501 or any rule or order issued with respect to Section 58-22-501, and that disciplinary action is appropriate, the director or his designee from within the division for each alternative respectively, shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who violates Subsections 58-1-501(1)(a) through (d) or Section 58-22-501 or any rule or order issued with respect to Section 58-22-501, as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (1)and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsections 58-1-501(1)(a) through (d) or Section 58-22-501 or any rule or order issued with respect to this section.
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-22-401 may not be assessed through a citation.
(b) A citation shall:
(i) be in writing;
(ii) describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated;
(iii) clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(iv) clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(c) The division may issue a notice in lieu of a citation.
(d) Each citation issued under this section, or a copy of each citation, may be served upon any person whom a summons may be served in accordance with the Utah Rules of Civil Procedure and may be made personally or upon his agent by a division investigator or by any person specially designated by the director or by mail.
(e) If within 20 calendar days from the service of the citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review. The period to contest a citation may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(h) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(i) The director or his designee shall assess fines according to the following:
(i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000; and
(iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to $2,000 for each day of continued offense.
(2) An action initiated for a first or second offense which has not yet resulted in a final order of the division shall not preclude initiation of any subsequent action for a second or subsequent offense during the pendency of any preceding action. The final order on a subsequent action shall be considered a second or subsequent offense, respectively, provided the preceding action resulted in a first or second offense, respectively.
(3) Any penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located. Any county attorney or the attorney general of the state shall provide legal assistance and advice to the director in any action to collect the penalty. In any action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded to the division.
Section 860. Section 58-26a-102 is amended to read:
58-26a-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Accounting experience" means applying accounting and auditing skills and principles that are taught as a part of the professional education qualifying a person for licensure under this chapter and generally accepted by the profession, under the supervision of a licensed certified public accountant.
(2) "Board" means the Utah Board of Accountancy created in Section 58-26a-201.
(3) "Certified Public Accountant" or "CPA" means an individual currently licensed by this state or any other state to practice public accountancy or who has been granted a certificate as a certified public accountant under prior law or this chapter.
(4) "Certified Public Accountant firm" or "CPA firm" means a qualified business entity holding a valid registration as a Certified Public Accountant firm under this chapter.
(5) "Client" means the person who retains a licensee for the performance of one or more of the services included in the definition of the practice of public accountancy. "Client" does not include a CPA's employer when the licensee works in a salaried or hourly rate position.
(6) "Compilation of financial statements" means the presentation in the form of financial statements of information that is the representation of management or owners accompanied by a report stating the compilation has been performed in accordance with standards established by the American Institute of Certified Public Accountants.
(7) "Experience" means:
(a) accounting experience;
(b) professional experience; or
(c) qualifying experience.
(8) "Licensee" means the holder of a current valid license issued under this chapter.
(9) "Practice of public accounting" means the offer to perform or the performance by a person holding himself out as a certified public accountant of one or more kinds of services involving the use of auditing or accounting skills including the issuance of reports or opinions on financial statements, performing attestation engagements, the performance of one or more kinds of advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters for a client.
(10) "Peer review" means a study, appraisal, or review of one or more aspects of the professional work of a person or qualified business entity in the practice of public accountancy, by a licensee or any other qualified person in accordance with rules adopted pursuant to this chapter and who is not affiliated with the person or qualified business entity being reviewed.
(11) "Professional experience" means experience lawfully obtained while licensed as a certified public accountant in another jurisdiction, recognized by rule, in the practice of public accountancy performed for a client, which includes expression of assurance or opinion, for at least 300 hours collectively in the following areas:
(a) applying Generally Accepted Auditing Standards (GAAS) to the usual and customary financial transactions recorded in the accounting records;
(b) preparing audit working papers in accordance with GAAS covering the examination of the accounts usually found in accounting records;
(c) planning the audit scope in accordance with GAAS, including the audit program to be followed;
(d) preparing written explanations and comments on the findings of the examination and on the content of the accounting records; and
(e) preparing and analyzing financial statements in accordance with GAAS.
(12) "Qualified business entity" means a sole proprietorship, corporation, limited liability company, or partnership engaged in the practice of public accountancy.
(13) "Qualified continuing professional education" means a formal program of education that contributes directly to the professional competence of a certified public accountant.
(14) "Qualifying examinations" means:
(a) the AICPA Uniform CPA Examination;
(b) the AICPA Examination of Professional Ethics for CPAs;
(c) the Utah Laws and Rules Examination; and
(d) any other examination approved by the board and adopted by the division by rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(15) "Qualifying experience" means experience in the practice of public accountancy under the direction and supervision of a licensed certified public accountant performed for a client, which includes expression of assurance or opinion, for at least 300 hours collectively in the following areas:
(a) applying Generally Accepted Auditing Standards (GAAS) to the usual and customary financial transactions recorded in the accounting records;
(b) preparing audit working papers in accordance with GAAS covering the examination of the accounts usually found in accounting records;
(c) planning the audit scope in accordance with GAAS, including the audit program to be followed;
(d) preparing written explanations and comments on the findings of the examination and on the content of the accounting records; and
(e) preparing and analyzing financial statements in accordance with GAAS.
(16) (a) "Report" means:
(i) when used with reference to financial statements, an opinion, report or other form of language that:
(A) states or implies assurance as to the reliability of any financial statements; or
(B) implies that the person or firm issuing it has special knowledge or competence in accounting or auditing and specifically includes compilations and reviews; such an implication of special knowledge or competence may arise from use by the issuer of the report of names or titles indicating that the person or firm is a public accountant or auditor, or from the language of the report itself; or
(ii) any disclaimer of opinion when it is conventionally understood to imply any positive assurance as to the reliability of the financial statements referred to or language suggesting special competence on the part of the person or firm issuing such language; and it includes any other form of language that is conventionally understood to imply such assurance or such special knowledge or competence.
(b) "Report" does not include a financial statement prepared by an unlicensed person if:
(i) that financial statement has a cover page which includes essentially the following language: "I (we) have prepared the accompanying financial statements of (name of entity) as of (time period) for the (period) then ended. This presentation is limited to preparing, in the form of financial statements, information that is the representation of management (owners). I (we) have not audited or reviewed the accompanying financial statements and accordingly do not express an opinion or any other form of assurance on them."; and
(ii) the cover page and any related footnotes do not use the terms "compilation," "review," "audit," "generally accepted auditing standards," "generally accepted accounting principles," or other similar terms.
(17) "Review of financial statements" means performing inquiry and analytical procedures which provide a reasonable basis for expressing limited assurance that there are no material modifications that should be made to the statements in order for them to be in conformity with generally accepted accounting principles or, if applicable, with another comprehensive basis of accounting; and, the issuance of a report on the financial statements stating that a review was performed in accordance with the standards established by the American Institute of Certified Public Accountants.
(18) (a) "Substantial equivalency" means that the education, examination, and experience required by another jurisdiction are comparable to or exceed the education, examination, and experience requirements of this chapter, or that an individual's education, examination, and experience qualifications are comparable to or exceed the education, examination, and experience requirements of this chapter.
(b) "Substantial equivalency" is determined by the board in accordance with rules made by the division in collaboration with the board.
(19) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-26a-501.
(20) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-26a-502 and as may be further defined by rule.
(21) "Year of experience" means 2,000 hours of cumulative experience.
Section 861. Section 58-26a-302 is amended to read:
58-26a-302
. Qualifications for licensure and registration -- Licensure by endorsement -- Transitional provisions.(1) Each applicant for licensure under this chapter as a certified public accountant shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) show evidence of good moral character;
(d) submit a certified transcript of credits from an accredited institution acceptable to the board showing:
(i) successful completion of a total of 150 semester hours or 225 quarter hours of collegiate level education with a concentration in accounting, auditing, and business;
(ii) a baccalaureate degree or its equivalent at a college or university approved by the board; and
(iii) compliance with any other education requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(e) submit evidence of one year of accounting experience in a form prescribed by the division;
(f) submit evidence of having successfully completed the qualifying examinations in accordance with Section 58-26a-306; and
(g) submit to an interview by the board, if requested, for the purpose of examining the applicant's competence and qualifications for licensure.
(2) The division may issue a license under this chapter to a person who holds a license as a certified public accountant issued by any other jurisdiction of the United States if the applicant for licensure by endorsement:
(a) submits an application in a form prescribed by the division;
(b) pays a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) shows evidence of good moral character;
(d) submits to an interview by the board, if requested, for the purpose of examining the applicant's competence and qualifications for licensure; and
(e) (i) (A) shows evidence of having passed the qualifying examinations; and
(B) (I) meets the requirements for licensure which were applicable in this state at the time of the issuance of the applicant's license by the jurisdiction from which the original licensure by satisfactorily passing the AICPA Uniform CPA Examination was issued; or
(II) had five years of professional experience after passing the AICPA Uniform CPA Examination upon which the original license was based, within the ten years immediately preceding the application for licensure by endorsement; or
(ii) shows evidence that the applicant's education, examination record, and experience are substantially equivalent to the requirements of Subsection (1), as provided by rule.
(3) (a) Each applicant for registration as a Certified Public Accountant firm shall:
(i) submit an application in a form prescribed by the division;
(ii) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(iii) have a CPA license under this chapter held by:
(A) its proprietor, in the case of a sole proprietorship;
(B) one of its general partners, managers, or members, in the case of a partnership or limited liability company;
(C) one of its officers or shareholders, in the case of a corporation; or
(D) one of its owners, in the case of any other type of qualified business entity;
(iv) designate a CPA licensee who is responsible for on site supervision of operations of the CPA firm; and
(v) meet any other requirements established by rule by the division in collaboration with the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) Each separate location of a qualified business entity within the state seeking registration as a Certified Public Accountant firm shall register separately.
(c) A Certified Public Accountant firm may include owners who are not licensed under this chapter provided that:
(i) more than 50% of the ownership of the Certified Public Accountant firm, including financial interest and voting rights in the firm, is held by individuals who are Certified Public Accountants, licensed under this chapter or another jurisdiction of the United States; and
(ii) all nonlicensed owners are active individual participants in the CPA firm.
(4) An individual shall have until July 1, 2004, to obtain three years of qualifying experience for licensure without being required to complete the education requirement if that individual:
(a) was approved to take the qualifying examinations prior to July 1, 1994, under prior law without completion of the education requirement; and
(b) (i) passed the AICPA Uniform CPA Examination prior to July 1, 1994; or
(ii) received conditional credits on the AICPA Uniform CPA Examination prior to July 1, 1994, and subsequently passed all parts of the AICPA Uniform CPA Examination within six immediately successive examination administrations.
Section 862. Section 58-26a-306 is amended to read:
58-26a-306
. Examination requirements.(1) Before taking the qualifying examinations, an applicant shall:
(a) submit an application in a form approved by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) demonstrate completion of the education requirement in Subsection 58-26a-302(1)(d); and
(d) be approved by the board to take the qualifying examinations.
(2) A person must sit for and meet the conditioning requirements of the AICPA Uniform CPA Examination as established by the AICPA.
Section 863. Section 58-26a-307 is amended to read:
58-26a-307
. CPA emeritus status -- Renewal of license.(1) A person currently licensed as a certified public accountant may, on any renewal date of that license, apply for and obtain a transfer of that license to a status of CPA emeritus registration if:
(a) (i) the licensee is at least 60 years of age as of the date of renewal;
(ii) the licensee is disabled; or
(iii) the board finds other good cause for believing that the licensee will not return to the practice of public accountancy;
(b) the licensee makes an application for transfer of status and registration and pays a registration fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) the licensee, on application for transfer, certifies that he will not engage in the practice of public accountancy while in the status of CPA emeritus registration; and
(d) the licensee is in good standing as a CPA and not subject to any order of revocation, suspension, or probation.
(2) Each CPA emeritus registration shall be issued in accordance with a two-year renewal cycle established by rule.
(3) CPA emeritus registrants may not engage in the practice of public accountancy.
(4) CPA emeritus registrants are not required to fulfill the continuing professional education or peer review provisions of this chapter.
(5) Each CPA emeritus registrant is responsible for renewing his registration, according to procedures that the division establishes by rule in collaboration with the board in accordance with Section 58-1-308.
(6) A CPA emeritus registrant may reinstate his CPA license by:
(a) submitting an application in a form prescribed by the division;
(b) paying a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) showing evidence of having completed the continuing professional education requirement established by rule.
Section 864. Section 58-28-302 is amended to read:
58-28-302
. License qualifications.(1) Every applicant for a license to practice veterinary medicine, surgery, and dentistry shall:
(a) be of good moral character as it relates to the functions and duties of a licensed veterinarian;
(b) pass an examination approved by the board on the theory and practice of the science of veterinary medicine, surgery, dentistry, and other subjects determined by the board, knowledge of which is generally required of veterinarians;
(c) (i) graduate from a veterinary college accredited by the AVMA; or
(ii) obtain a certificate issued by the Educational Commission for Foreign Veterinary Graduates issued by the AVMA;
(d) (i) have practiced under the supervision of a veterinarian licensed to practice in this state for a period of at least six months;
(ii) have participated in veterinary investigational, educational, or sanitary control work of a nature and duration as to be the equivalent of the experience of Subsection (1)(d)(i);
(iii) have practiced as a licensed veterinarian outside Utah for a period of at least six months; or
(iv) have practiced as a veterinarian while employed by the United States government, its agencies, or the state or its political subdivisions for a period of at least six months; and
(e) pay a fee to the Department of Commerce determined by it pursuant to Section [63-38-3.2] 63J-1-303 for the examination, for an initial license, and for a renewal license.
(2) (a) An applicant for licensure as a veterinary intern shall comply with the provisions of Subsections (1)(a) and (c).
(b) An applicant's license as a veterinary intern is limited to the period of time necessary to complete clinical training as described in Subsection (1)(d) and extends not more than one year from the date the minimum requirement for training is completed, unless the individual presents satisfactory evidence to the division and the board that the individual is making reasonable progress toward passing the qualifying examination or is otherwise on a course reasonably expected to lead to licensure as a veterinarian, but the period of time under this Subsection (2)(b) may not exceed two years past the date the minimum supervised clinical training has been completed.
Section 865. Section 58-28-503 is amended to read:
58-28-503
. Penalty for unlawful or unprofessional conduct.(1) Any person who violates the unlawful conduct provisions of Section 58-28-501 is guilty of a third degree felony.
(2) After proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose administrative penalties of up to $10,000 for acts of unprofessional conduct or unlawful conduct under this chapter.
(3) Assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
Section 866. Section 58-31b-102 is amended to read:
58-31b-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct in accordance with a fine schedule established by rule and as a result of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) "Applicant" means a person who applies for licensure or certification under this chapter by submitting a completed application for licensure or certification and the required fees to the department.
(3) "Approved education program" means a nursing education program that meets the minimum standards for educational programs established under this chapter and by division rule in collaboration with the board.
(4) "Board" means the Board of Nursing created in Section 58-31b-201.
(5) "Consultation and referral plan" means a written plan jointly developed by an advanced practice registered nurse and a consulting physician that permits the advanced practice registered nurse to prescribe schedule II-III controlled substances in consultation with the consulting physician.
(6) "Consulting physician" means a physician and surgeon or osteopathic physician and surgeon licensed in accordance with this title who has agreed to consult with an advanced practice registered nurse with a controlled substance license, a DEA registration number, and who will be prescribing schedule II-III controlled substances.
(7) "Diagnosis" means the identification of and discrimination between physical and psychosocial signs and symptoms essential to the effective execution and management of health care.
(8) "Examinee" means a person who applies to take or does take any examination required under this chapter for licensure.
(9) "Licensee" means a person who is licensed or certified under this chapter.
(10) "Long-term care facility" means any of the following facilities licensed by the Department of Health pursuant to Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act:
(a) a nursing care facility;
(b) a small health care facility;
(c) an intermediate care facility for the mentally retarded;
(d) an assisted living facility Type I or II; or
(e) a designated swing bed unit in a general hospital.
(11) "Medication aide certified" means a certified nurse aide who:
(a) has a minimum of 2,000 hours experience working as a certified nurse aide;
(b) has received a minimum of 40 hours of classroom and 20 hours of practical training that is approved by the division in collaboration with the board, in administering routine medications to patients or residents of long-term care facilities; and
(c) is certified by the division as a medication aide certified.
(12) (a) "Practice as a medication aide certified" means the limited practice of nursing under the supervision, as defined by the division by administrative rule, of a licensed nurse, involving routine patient care that requires minimal or limited specialized or general knowledge, judgment, and skill, to an individual who is ill, injured, infirm, developmentally or physically disabled, mentally disabled, or mentally retarded, and who is in a regulated long-term care facility.
(b) "Practice as a medication aide certified" includes:
(i) providing direct personal assistance or care; and
(ii) administering routine medications to patients in accordance with a formulary and protocols to be defined by the division by rule.
(13) "Practice of advanced practice registered nursing" means the practice of nursing within the generally recognized scope and standards of advanced practice registered nursing as defined by rule and consistent with professionally recognized preparation and education standards of an advanced practice registered nurse by a person licensed under this chapter as an advanced practice registered nurse. Advanced practice registered nursing includes:
(a) maintenance and promotion of health and prevention of disease;
(b) diagnosis, treatment, correction, consultation, and referral for common health problems;
(c) prescription or administration of prescription drugs or devices including:
(i) local anesthesia;
(ii) schedule IV-V controlled substances; and
(iii) schedule II-III controlled substances in accordance with a consultation and referral plan; or
(d) the provision of preoperative, intraoperative, and postoperative anesthesia care and related services upon the request of a licensed health care professional by an advanced practice registered nurse specializing as a certified registered nurse anesthetist, including:
(i) preanesthesia preparation and evaluation including:
(A) performing a preanesthetic assessment of the patient;
(B) ordering and evaluating appropriate lab and other studies to determine the health of the patient; and
(C) selecting, ordering, or administering appropriate medications;
(ii) anesthesia induction, maintenance, and emergence, including:
(A) selecting and initiating the planned anesthetic technique;
(B) selecting and administering anesthetics and adjunct drugs and fluids; and
(C) administering general, regional, and local anesthesia;
(iii) postanesthesia follow-up care, including:
(A) evaluating the patient's response to anesthesia and implementing corrective actions; and
(B) selecting, ordering, or administering the medications and studies listed in Subsection (13)(d); and
(iv) other related services within the scope of practice of a certified registered nurse anesthetist, including:
(A) emergency airway management;
(B) advanced cardiac life support; and
(C) the establishment of peripheral, central, and arterial invasive lines; and
(v) for purposes of Subsection (13)(d), "upon the request of a licensed health care professional":
(A) means a health care professional practicing within the scope of the health care professional's license, requests anesthesia services for a specific patient; and
(B) does not require an advanced practice registered nurse specializing as a certified registered nurse anesthetist to enter into a consultation and referral plan or obtain additional authority to select, administer, or provide preoperative, intraoperative, or postoperative anesthesia care and services.
(14) "Practice of nursing" means assisting individuals or groups to maintain or attain optimal health, implementing a strategy of care to accomplish defined goals and evaluating responses to care and treatment. The practice of nursing requires substantial specialized or general knowledge, judgment, and skill based upon principles of the biological, physical, behavioral, and social sciences, and includes:
(a) initiating and maintaining comfort measures;
(b) promoting and supporting human functions and responses;
(c) establishing an environment conducive to well-being;
(d) providing health counseling and teaching;
(e) collaborating with health care professionals on aspects of the health care regimen;
(f) performing delegated procedures only within the education, knowledge, judgment, and skill of the licensee; and
(g) delegating nurse interventions that may be performed by others and are not in conflict with this chapter.
(15) "Practice of practical nursing" means the performance of nursing acts in the generally recognized scope of practice of licensed practical nurses as defined by rule and as provided in this Subsection (15) by a person licensed under this chapter as a licensed practical nurse and under the direction of a registered nurse, licensed physician, or other specified health care professional as defined by rule. Practical nursing acts include:
(a) contributing to the assessment of the health status of individuals and groups;
(b) participating in the development and modification of the strategy of care;
(c) implementing appropriate aspects of the strategy of care;
(d) maintaining safe and effective nursing care rendered to a patient directly or indirectly; and
(e) participating in the evaluation of responses to interventions.
(16) "Practice of registered nursing" means performing acts of nursing as provided in this Subsection (16) by a person licensed under this chapter as a registered nurse within the generally recognized scope of practice of registered nurses as defined by rule. Registered nursing acts include:
(a) assessing the health status of individuals and groups;
(b) identifying health care needs;
(c) establishing goals to meet identified health care needs;
(d) planning a strategy of care;
(e) prescribing nursing interventions to implement the strategy of care;
(f) implementing the strategy of care;
(g) maintaining safe and effective nursing care that is rendered to a patient directly or indirectly;
(h) evaluating responses to interventions;
(i) teaching the theory and practice of nursing; and
(j) managing and supervising the practice of nursing.
(17) "Routine medications":
(a) means established medications administered to a medically stable individual as determined by a licensed health care practitioner or in consultation with a licensed medical practitioner; and
(b) is limited to medications that are administered by the following routes:
(i) oral;
(ii) sublingual;
(iii) buccal;
(iv) eye;
(v) ear;
(vi) nasal;
(vii) rectal;
(viii) vaginal;
(ix) skin ointments, topical including patches and transdermal;
(x) gastronomy or jejunostomy tubes;
(xi) premeasured medication delivered by aerosol/nebulizer; and
(xii) medications delivered by metered hand-held inhalers.
(18) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-31b-501.
(19) "Unlicensed assistive personnel" means any unlicensed person, regardless of title, to whom tasks are delegated by a licensed nurse as permitted by rule and in accordance with the standards of the profession.
(20) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-31b-502 and as may be further defined by rule.
Section 867. Section 58-31b-301.6 is amended to read:
58-31b-301.6
. Medication aide certified pilot program.(1) (a) The division shall establish a medication aide certified pilot program, limited to adult patients only, to determine the safety and efficiency of regulating medication aides certified.
(b) The pilot program begins on January 1, 2007, and sunsets in accordance with Section [63-55b-158] 63I-2-258.
(c) The division shall collect data regarding the safety and efficiency of medication aides certified and shall make the data available to the public.
(d) If the Legislature does not reauthorize the medication aides certified in accordance with Section [63-55b-158] 63I-2-258, all certifications will automatically expire on the sunset date.
(2) If at any time the division determines the certification pilot program has become a threat, or potential threat to the public health, safety, or welfare, the division may authorize emergency rules to place the certification program in abeyance until the next legislative session.
Section 868. Section 58-31b-302 is amended to read:
58-31b-302
. Qualifications for licensure or certification -- Criminal background checks.(1) An applicant for certification as a medication aide shall:
(a) submit an application to the division on a form prescribed by the division;
(b) pay a fee to the division as determined under Section [63-38-3.2] 63J-1-303;
(c) have a high school diploma or its equivalent;
(d) have a current certification as a nurse aide, in good standing, from the Department of Health;
(e) have a minimum of 2,000 hours of experience within the two years prior to application, working as a certified nurse aide in a long-term care facility;
(f) obtain letters of recommendation from a long-term care facility administrator and one licensed nurse familiar with the applicant's work practices as a certified nurse aide;
(g) be in a condition of physical and mental health that will permit the applicant to practice safely as a medication aide certified;
(h) have completed an approved education program or an equivalent as determined by the division in collaboration with the board;
(i) have passed the examinations as required by division rule made in collaboration with the board; and
(j) meet with the board, if requested, to determine the applicant's qualifications for certification.
(2) An applicant for licensure as a licensed practical nurse shall:
(a) submit to the division an application in a form prescribed by the division;
(b) pay to the division a fee determined under Section [63-38-3.2] 63J-1-303;
(c) have a high school diploma or its equivalent;
(d) be in a condition of physical and mental health that will permit the applicant to practice safely as a licensed practical nurse;
(e) have completed an approved practical nursing education program or an equivalent as determined by the board;
(f) have passed the examinations as required by division rule made in collaboration with the board; and
(g) meet with the board, if requested, to determine the applicant's qualifications for licensure.
(3) An applicant for licensure as a registered nurse shall:
(a) submit to the division an application form prescribed by the division;
(b) pay to the division a fee determined under Section [63-38-3.2] 63J-1-303;
(c) have a high school diploma or its equivalent;
(d) be in a condition of physical and mental health that will allow the applicant to practice safely as a registered nurse;
(e) have completed an approved registered nursing education program;
(f) have passed the examinations as required by division rule made in collaboration with the board; and
(g) meet with the board, if requested, to determine the applicant's qualifications for licensure.
(4) Applicants for licensure as an advanced practice registered nurse shall:
(a) submit to the division an application on a form prescribed by the division;
(b) pay to the division a fee determined under Section [63-38-3.2] 63J-1-303;
(c) be in a condition of physical and mental health which will allow the applicant to practice safely as an advanced practice registered nurse;
(d) hold a current registered nurse license in good standing issued by the state or be qualified at the time for licensure as a registered nurse;
(e) (i) have earned a graduate degree in:
(A) an advanced practice registered nurse nursing education program; or
(B) a related area of specialized knowledge as determined appropriate by the division in collaboration with the board; or
(ii) have completed a nurse anesthesia program in accordance with Subsection (4)(f)(ii);
(f) have completed:
(i) course work in patient assessment, diagnosis and treatment, and pharmacotherapeutics from an education program approved by the division in collaboration with the board; or
(ii) a nurse anesthesia program which is approved by the Council on Accreditation of Nurse Anesthesia Educational Programs;
(g) have successfully completed clinical practice in psychiatric and mental health nursing, including psychotherapy as defined by division rule, after completion of the masters degree required for licensure, to practice within the psychiatric and mental health nursing specialty;
(h) have passed the examinations as required by division rule made in collaboration with the board;
(i) be currently certified by a program approved by the division in collaboration with the board and submit evidence satisfactory to the division of the certification; and
(j) meet with the board, if requested, to determine the applicant's qualifications for licensure.
(5) For each applicant for licensure or certification under this chapter:
(a) the applicant shall:
(i) submit fingerprint cards in a form acceptable to the division at the time the application is filed; and
(ii) consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the Federal Bureau of Investigation regarding the application; and
(b) the division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check through the national criminal history system (NCIC) or any successor system.
(6) For purposes of conducting the criminal background checks required in Subsection (5), the division shall have direct access to criminal background information maintained pursuant to Title 53, Chapter 10, Part 2, Bureau of Criminal Identification.
(7) (a) (i) Any new nurse license or certification issued under this section shall be conditional, pending completion of the criminal background check.
(ii) If the criminal background check discloses the applicant has failed to accurately disclose a criminal history, the license or certification shall be immediately and automatically revoked.
(b) (i) Any person whose conditional license or certification has been revoked under Subsection (7)(a) shall be entitled to a postrevocation hearing to challenge the revocation.
(ii) The hearing shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(8) (a) If a person has been charged with a violent felony, as defined in Subsection 76-3-203.5(1)(c), and, as a result, the person has been convicted, entered a plea of guilty or nolo contendere, or entered a plea of guilty or nolo contendere held in abeyance pending the successful completion of probation:
(i) the person is disqualified for licensure under this chapter; and
(ii) (A) if the person is licensed under this chapter, the division:
(I) shall act upon the license as required under Section 58-1-401; and
(II) may not renew or subsequently issue a license to the person under this chapter; and
(B) if the person is not licensed under this chapter, the division may not issue a license to the person under this chapter.
(b) If a person has been charged with a felony other than a violent felony, as defined in Subsection 76-3-203.5(1)(c), and, as a result, the person has been convicted, entered a plea of guilty or nolo contendere, or entered a plea of guilty or nolo contendere held in abeyance pending the successful completion of probation:
(i) if the person is licensed under this chapter, the division shall determine whether the felony disqualifies the person for licensure under this chapter and act upon the license, as required, in accordance with Section 58-1-401; and
(ii) if the person is not licensed under this chapter, the person may not file an application for licensure under this chapter any sooner than five years after having completed the conditions of the sentence or plea agreement.
Section 869. Section 58-31b-304 is amended to read:
58-31b-304
. Qualifications for admission to the examinations.(1) To be admitted to the examinations required for certification as a medication aide certified, a person shall:
(a) submit an application on a form prescribed by the division;
(b) pay a fee as determined by the division under Section [63-38-3.2] 63J-1-303; and
(c) meet all requirements of Subsection 58-31b-302(1), except the passing of the examination.
(2) To be admitted to the examinations required for licensure as a practical nurse, a person shall:
(a) submit an application form prescribed by the division;
(b) pay a fee as determined by the division under Section [63-38-3.2] 63J-1-303; and
(c) meet all requirements of Subsection 58-31b-302(2), except Subsection (2)(f).
(3) To be admitted to the examinations required for licensure as a registered nurse, a person shall:
(a) submit an application form prescribed by the division;
(b) pay a fee as determined by the division under Section [63-38-3.2] 63J-1-303; and
(c) meet all the requirements of Subsection 58-31b-302(3), except Subsection (3)(f).
Section 870. Section 58-31b-305 is amended to read:
58-31b-305
. Term of license -- Expiration -- Renewal.(1) The division shall issue each license or certification under this chapter in accordance with a two-year renewal cycle established by rule. The division may by rule extend or shorten a renewal period by as much as one year to stagger the renewal cycles it administers.
(2) At the time of renewal, the licensee or person certified under this chapter shall show satisfactory evidence of each of the following renewal requirements:
(a) complete and submit an application for renewal in a form prescribed by the division and pay the renewal fee determined under Section [63-38-3.2] 63J-1-303; and
(b) meet continuing competency requirements as established by rule, which shall include continuing education requirements for medication aide certified established by the board and adopted by the division by rule.
(3) In addition to the renewal requirements under Subsection (2), a person licensed as a advanced practice registered nurse shall be currently certified by a program approved by the division in collaboration with the board and submit evidence satisfactory to the division of that qualification or if licensed prior to July 1, 1992, meet the requirements established by rule.
(4) Each license or certification automatically expires on the expiration date shown on the license or certification unless renewed in accordance with Section 58-1-308.
Section 871. Section 58-31b-401 is amended to read:
58-31b-401
. Grounds for denial of licensure or certification and disciplinary proceedings.(1) Grounds for refusal to issue a license to an applicant, for refusal to renew the license of a licensee, to revoke, suspend, restrict, or place on probation the license of a licensee, to issue a public or private reprimand to a licensee, and to issue cease and desist orders shall be in accordance with Section 58-1-401.
(2) If a court of competent jurisdiction determines a nurse is an incapacitated person as defined in Section 75-1-201 or that he is mentally ill as defined in Section 62A-15-602, and unable to safely engage in the practice of nursing, the director shall immediately suspend the license of the nurse upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the nurse in writing of the suspension.
(3) (a) If the division and the majority of the board find reasonable cause to believe a nurse who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing nursing with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the nurse with a notice of hearing on the sole issue of the capacity of the nurse to competently, safely engage in the practice of nursing.
(b) The hearing shall be conducted under Section 58-1-109 and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every nurse who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting to an immediate mental or physical examination, at the nurse's expense and by a division-approved practitioner selected by the nurse when directed in writing by the division and a majority of the board to do so; and
(ii) the admissibility of the reports of the examining practitioner's testimony or examination, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the nurse is mentally ill or incapacitated or otherwise unable to practice nursing with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the nurse's patients or the general public.
(c) (i) Failure of a nurse to submit to the examination ordered under this section is a ground for the division's immediate suspension of the nurse's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the nurse and was not related directly to the illness or incapacity of the nurse.
(5) (a) A nurse whose license is suspended under Subsection (2), (3), or (4)(c) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this Subsection (5) shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the nurse's patients or the general public.
(6) A nurse whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the nurse, under procedures established by division rule, regarding any change in the nurse's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of nursing; and
(b) he is qualified to have his license to practice under this chapter restored completely or in part.
(7) Nothing in Section [63-2-206] 63G-2-206 may be construed as limiting the authority of the division to report current significant investigative information to the coordinated licensure information system for transmission to party states as required of the division by Article VII of the Nurse Licensure Compact in Section 58-31c-102.
(8) For purposes of this section and Section 58-31b-402:
(a) "licensed" or "license" includes "certified" or "certification" under this chapter; and
(b) any terms or conditions applied to the word "nurse" in this section or Section 58-31b-402 also apply to a medication aide certified.
Section 872. Section 58-31b-402 is amended to read:
58-31b-402
. Authority to assess penalty.(1) After a proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose an administrative penalty of up to $10,000 for unprofessional or unlawful conduct under this chapter in accordance with a fine schedule established by rule.
(2) The assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
(3) The division may impose an administrative penalty of up to $500 for any violation of Subsection 58-31b-501(1)(a) or (b), consistent with Section 58-31b-503.
Section 873. Section 58-31b-601 is amended to read:
58-31b-601
. Minimum standards for nursing programs -- Medication aide training.(1) A nursing education program shall be affiliated with an accredited institution of higher education in order to be approved by the division.
(2) The minimum standards a nursing program shall meet to qualify graduates for licensure under this chapter shall be defined by division rule.
(3) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules defining the minimum standards for a medication aide certified training program to qualify a person for certification under this chapter as a medication aide certified.
(b) A medication aide certified training program shall include a minimum of 40 hours of classroom and 20 hours of practical training.
Section 874. Section 58-37-2 is amended to read:
58-37-2
. Definitions.(1) As used in this chapter:
(a) "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
(i) a practitioner or, in his presence, by his authorized agent; or
(ii) the patient or research subject at the direction and in the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or practitioner but does not include a motor carrier, public warehouseman, or employee of any of them.
(c) "Consumption" means ingesting or having any measurable amount of a controlled substance in a person's body, but this Subsection (1)(c) does not include the metabolite of a controlled substance.
(d) "Continuing criminal enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or groups of individuals associated in fact although not a legal entity, and includes illicit as well as licit entities created or maintained for the purpose of engaging in conduct which constitutes the commission of episodes of activity made unlawful by Title 58, Chapters 37, 37a, 37b, 37c, or 37d, which episodes are not isolated, but have the same or similar purposes, results, participants, victims, methods of commission, or otherwise are interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate continuing unlawful conduct and be related either to each other or to the enterprise.
(e) "Control" means to add, remove, or change the placement of a drug, substance, or immediate precursor under Section 58-37-3.
(f) (i) "Controlled substance" means a drug or substance included in Schedules I, II, III, IV, or V of Section 58-37-4, and also includes a drug or substance included in Schedules I, II, III, IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled substance analog.
(ii) "Controlled substance" does not include:
(A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title 32A, Alcoholic Beverage Control Act, regarding tobacco or food;
(B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred, or furnished as an over-the-counter medication without prescription; or
(C) dietary supplements, vitamins, minerals, herbs, or other similar substances including concentrates or extracts, which are not otherwise regulated by law, which may contain naturally occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(g) (i) "Controlled substance analog" means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance listed in Schedules I and II of Section 58-37-4, or in Schedules I and II of the federal Controlled Substances Act, Title II, P.L. 91-513:
(A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled substances in the schedules set forth in Subsection (1)(f); or
(B) which, with respect to a particular individual, is represented or intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled substances in the schedules set forth in this Subsection (1).
(ii) "Controlled substance analog" does not include:
(A) a controlled substance currently scheduled in Schedules I through V of Section 58-37-4;
(B) a substance for which there is an approved new drug application;
(C) a substance with respect to which an exemption is in effect for investigational use by a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 366, to the extent the conduct with respect to the substance is permitted by the exemption;
(D) any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance;
(E) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred, or furnished as an over-the-counter medication without prescription; or
(F) dietary supplements, vitamins, minerals, herbs, or other similar substances including concentrates or extracts, which are not otherwise regulated by law, which may contain naturally occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(h) "Conviction" means a determination of guilt by verdict, whether jury or bench, or plea, whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a, 37b, 37c, or 37d, or for any offense under the laws of the United States and any other state which, if committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b, 37c, or 37d.
(i) "Counterfeit substance" means:
(i) any substance or container or labeling of any substance that without authorization bears the trademark, trade name, or other identifying mark, imprint, number, device, or any likeness of them, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed the substance which falsely purports to be a controlled substance distributed by, any other manufacturer, distributor, or dispenser; or
(ii) any substance that is represented to be a controlled substance.
(j) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not an agency relationship exists.
(k) "Department" means the Department of Commerce.
(l) "Depressant or stimulant substance" means:
(i) a drug which contains any quantity of barbituric acid or any of the salts of barbituric acid;
(ii) a drug which contains any quantity of:
(A) amphetamine or any of its optical isomers;
(B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
(C) any substance which the Secretary of Health and Human Services or the Attorney General of the United States after investigation has found and by regulation designated habit-forming because of its stimulant effect on the central nervous system;
(iii) lysergic acid diethylamide; or
(iv) any drug which contains any quantity of a substance which the Secretary of Health and Human Services or the Attorney General of the United States after investigation has found to have, and by regulation designated as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.
(m) "Dispense" means the delivery of a controlled substance by a pharmacist to an ultimate user pursuant to the lawful order or prescription of a practitioner, and includes distributing to, leaving with, giving away, or disposing of that substance as well as the packaging, labeling, or compounding necessary to prepare the substance for delivery.
(n) "Dispenser" means a pharmacist who dispenses a controlled substance.
(o) "Distribute" means to deliver other than by administering or dispensing a controlled substance or a listed chemical.
(p) "Distributor" means a person who distributes controlled substances.
(q) "Division" means the Division of Occupational and Professional Licensing created in Section 58-1-103.
(r) "Drug" means:
(i) articles recognized in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of them;
(ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
(iii) articles, other than food, intended to affect the structure or function of man or other animals; and
(iv) articles intended for use as a component of any articles specified in Subsection (1)(r)(i), (ii), or (iii); but does not include devices or their components, parts, or accessories.
(s) "Drug dependent person" means any individual who unlawfully and habitually uses any controlled substance to endanger the public morals, health, safety, or welfare, or who is so dependent upon the use of controlled substances as to have lost the power of self-control with reference to his dependency.
(t) "Food" means:
(i) any nutrient or substance of plant, mineral, or animal origin other than a drug as specified in this chapter, and normally ingested by human beings; and
(ii) foods for special dietary uses as exist by reason of a physical, physiological, pathological, or other condition including but not limited to the conditions of disease, convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and overweight; uses for supplying a particular dietary need which exist by reason of age including but not limited to the ages of infancy and childbirth, and also uses for supplementing and for fortifying the ordinary or unusual diet with any vitamin, mineral, or other dietary property for use of a food. Any particular use of a food is a special dietary use regardless of the nutritional purposes.
(u) "Immediate precursor" means a substance which the Attorney General of the United States has found to be, and by regulation designated as being, the principal compound used or produced primarily for use in the manufacture of a controlled substance, or which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the controlled substance.
(v) "Indian" means a member of an Indian tribe.
(w) "Indian religion" means any religion:
(i) the origin and interpretation of which is from within a traditional Indian culture or community; and
(ii) which is practiced by Indians.
(x) "Indian tribe" means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village, which is legally recognized as eligible for and is consistent with the special programs, services, and entitlements provided by the United States to Indians because of their status as Indians.
(y) "Manufacture" means the production, preparation, propagation, compounding, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis.
(z) "Manufacturer" includes any person who packages, repackages, or labels any container of any controlled substance, except pharmacists who dispense or compound prescription orders for delivery to the ultimate consumer.
(aa) "Marijuana" means all species of the genus cannabis and all parts of the genus, whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from them, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. Any synthetic equivalents of the substances contained in the plant cannabis sativa or any other species of the genus cannabis which are chemically indistinguishable and pharmacologically active are also included.
(bb) "Money" means officially issued coin and currency of the United States or any foreign country.
(cc) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(i) opium, coca leaves, and opiates;
(ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates;
(iii) opium poppy and poppy straw; or
(iv) a substance, and any compound, manufacture, salt, derivative, or preparation of the substance, which is chemically identical with any of the substances referred to in Subsection (1)(cc)(i), (ii), or (iii), except narcotic drug does not include decocainized coca leaves or extracts of coca leaves which do not contain cocaine or ecgonine.
(dd) "Negotiable instrument" means documents, containing an unconditional promise to pay a sum of money, which are legally transferable to another party by endorsement or delivery.
(ee) "Opiate" means any drug or other substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability.
(ff) "Opium poppy" means the plant of the species papaver somniferum L., except the seeds of the plant.
(gg) "Person" means any corporation, association, partnership, trust, other institution or entity or one or more individuals.
(hh) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(ii) "Possession" or "use" means the joint or individual ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing, injection, or consumption, as distinguished from distribution, of controlled substances and includes individual, joint, or group possession or use of controlled substances. For a person to be a possessor or user of a controlled substance, it is not required that he be shown to have individually possessed, used, or controlled the substance, but it is sufficient if it is shown that the person jointly participated with one or more persons in the use, possession, or control of any substances with knowledge that the activity was occurring, or the controlled substance is found in a place or under circumstances indicating that the person had the ability and the intent to exercise dominion and control over it.
(jj) "Practitioner" means a physician, dentist, veterinarian, pharmacist, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis a controlled substance in the course of professional practice or research in this state.
(kk) "Prescribe" means to issue a prescription orally or in writing.
(ll) "Prescription" means an order issued by a licensed practitioner, in the course of that practitioner's professional practice, for a controlled substance, other drug, or device which it dispenses or administers for use by a patient or an animal. The order may be issued by word of mouth, written document, telephone, facsimile transmission, computer, or other electronic means of communication as defined by rule.
(mm) "Production" means the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
(nn) "Securities" means any stocks, bonds, notes, or other evidences of debt or of property.
(oo) "State" means the state of Utah.
(pp) "Ultimate user" means any person who lawfully possesses a controlled substance for his own use, for the use of a member of his household, or for administration to an animal owned by him or a member of his household.
(2) If a term used in this chapter is not defined, the definition and terms of Title 76, Utah Criminal Code, shall apply.
Section 875. Section 58-37-6 is amended to read:
58-37-6
. License to manufacture, produce, distribute, dispense, administer, or conduct research -- Issuance by division -- Denial, suspension, or revocation -- Records required -- Prescriptions.(1) (a) The division may adopt rules relating to the licensing and control of the manufacture, distribution, production, prescription, administration, dispensing, conducting of research with, and performing of laboratory analysis upon controlled substances within this state.
(b) The division may assess reasonable fees to defray the cost of issuing original and renewal licenses under this chapter pursuant to Section [63-38-3.2] 63J-1-303.
(2) (a) (i) Every person who manufactures, produces, distributes, prescribes, dispenses, administers, conducts research with, or performs laboratory analysis upon any controlled substance in Schedules II through V within this state, or who proposes to engage in manufacturing, producing, distributing, prescribing, dispensing, administering, conducting research with, or performing laboratory analysis upon controlled substances included in Schedules II through V within this state shall obtain a license issued by the division.
(ii) The division shall issue each license under this chapter in accordance with a two-year renewal cycle established by rule. The division may by rule extend or shorten a renewal period by as much as one year to stagger the renewal cycles it administers.
(b) Persons licensed to manufacture, produce, distribute, prescribe, dispense, administer, conduct research with, or perform laboratory analysis upon controlled substances in Schedules II through V within this state may possess, manufacture, produce, distribute, prescribe, dispense, administer, conduct research with, or perform laboratory analysis upon those substances to the extent authorized by their license and in conformity with this chapter.
(c) The following persons are not required to obtain a license and may lawfully possess controlled substances under this section:
(i) an agent or employee, except a sales representative, of any registered manufacturer, distributor, or dispenser of any controlled substance, if the agent or employee is acting in the usual course of his business or employment; however, nothing in this subsection shall be interpreted to permit an agent, employee, sales representative, or detail man to maintain an inventory of controlled substances separate from the location of his employer's registered and licensed place of business;
(ii) a motor carrier or warehouseman, or an employee of a motor carrier or warehouseman, who possesses any controlled substance in the usual course of his business or employment; and
(iii) an ultimate user, or any person who possesses any controlled substance pursuant to a lawful order of a practitioner.
(d) The division may enact rules waiving the license requirement for certain manufacturers, producers, distributors, prescribers, dispensers, administrators, research practitioners, or laboratories performing analysis if consistent with the public health and safety.
(e) A separate license is required at each principal place of business or professional practice where the applicant manufactures, produces, distributes, dispenses, conducts research with, or performs laboratory analysis upon controlled substances.
(f) The division may enact rules providing for the inspection of a licensee or applicant's establishment, and may inspect the establishment according to those rules.
(3) (a) Upon proper application, the division shall license a qualified applicant to manufacture, produce, distribute, conduct research with, or perform laboratory analysis upon controlled substances included in Schedules I through V, unless it determines that issuance of a license is inconsistent with the public interest. The division shall not issue a license to any person to prescribe, dispense, or administer a Schedule I controlled substance. In determining public interest, the division shall consider whether or not the applicant has:
(i) maintained effective controls against diversion of controlled substances and any Schedule I or II substance compounded from any controlled substance into other than legitimate medical, scientific, or industrial channels;
(ii) complied with applicable state and local law;
(iii) been convicted under federal or state laws relating to the manufacture, distribution, or dispensing of substances;
(iv) past experience in the manufacture of controlled dangerous substances;
(v) established effective controls against diversion; and
(vi) complied with any other factors that the division establishes that promote the public health and safety.
(b) Licenses granted under Subsection (3)(a) do not entitle a licensee to manufacture, produce, distribute, conduct research with, or perform laboratory analysis upon controlled substances in Schedule I other than those specified in the license.
(c) (i) Practitioners shall be licensed to administer, dispense, or conduct research with substances in Schedules II through V if they are authorized to administer, dispense, or conduct research under the laws of this state.
(ii) The division need not require a separate license for practitioners engaging in research with nonnarcotic controlled substances in Schedules II through V where the licensee is already licensed under this act in another capacity.
(iii) With respect to research involving narcotic substances in Schedules II through V, or where the division by rule requires a separate license for research of nonnarcotic substances in Schedules II through V, a practitioner shall apply to the division prior to conducting research.
(iv) Licensing for purposes of bona fide research with controlled substances by a practitioner considered qualified may be denied only on a ground specified in Subsection (4), or upon evidence that the applicant will abuse or unlawfully transfer or fail to safeguard adequately his supply of substances against diversion from medical or scientific use.
(v) Practitioners registered under federal law to conduct research in Schedule I substances may conduct research in Schedule I substances within this state upon furnishing the division evidence of federal registration.
(d) Compliance by manufacturers, producers, and distributors with the provisions of federal law respecting registration, excluding fees, entitles them to be licensed under this chapter.
(e) The division shall initially license those persons who own or operate an establishment engaged in the manufacture, production, distribution, dispensation, or administration of controlled substances prior to April 3, 1980, and who are licensed by the state.
(4) (a) Any license pursuant to Subsection (2) or (3) may be denied, suspended, placed on probation, or revoked by the division upon finding that the applicant or licensee has:
(i) materially falsified any application filed or required pursuant to this chapter;
(ii) been convicted of an offense under this chapter or any law of the United States, or any state, relating to any substance defined as a controlled substance;
(iii) been convicted of a felony under any other law of the United States or any state within five years of the date of the issuance of the license;
(iv) had a federal license denied, suspended, or revoked by competent federal authority and is no longer authorized to engage in the manufacturing, distribution, or dispensing of controlled substances;
(v) had his license suspended or revoked by competent authority of another state for violation of laws or regulations comparable to those of this state relating to the manufacture, distribution, or dispensing of controlled substances;
(vi) violated any division rule that reflects adversely on the licensee's reliability and integrity with respect to controlled substances;
(vii) refused inspection of records required to be maintained under this chapter by a person authorized to inspect them; or
(viii) prescribed, dispensed, administered, or injected an anabolic steroid for the purpose of manipulating human hormonal structure so as to:
(A) increase muscle mass, strength, or weight without medical necessity and without a written prescription by any practitioner in the course of his professional practice; or
(B) improve performance in any form of human exercise, sport, or game.
(b) The division may limit revocation or suspension of a license to a particular controlled substance with respect to which grounds for revocation or suspension exist.
(c) (i) Proceedings to deny, revoke, or suspend a license shall be conducted pursuant to this section and in accordance with the procedures set forth in Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, and conducted in conjunction with the appropriate representative committee designated by the director of the department.
(ii) Nothing in this Subsection (4)(c) gives the Division of Occupational and Professional Licensing exclusive authority in proceedings to deny, revoke, or suspend licenses, except where the division is designated by law to perform those functions, or, when not designated by law, is designated by the executive director of the Department of Commerce to conduct the proceedings.
(d) (i) The division may suspend any license simultaneously with the institution of proceedings under this section if it finds there is an imminent danger to the public health or safety.
(ii) Suspension shall continue in effect until the conclusion of proceedings, including judicial review, unless withdrawn by the division or dissolved by a court of competent jurisdiction.
(e) (i) If a license is suspended or revoked under this Subsection (4), all controlled substances owned or possessed by the licensee may be placed under seal in the discretion of the division.
(ii) Disposition may not be made of substances under seal until the time for taking an appeal has lapsed, or until all appeals have been concluded, unless a court, upon application, orders the sale of perishable substances and the proceeds deposited with the court.
(iii) If a revocation order becomes final, all controlled substances shall be forfeited.
(f) The division shall notify promptly the Drug Enforcement Administration of all orders suspending or revoking a license and all forfeitures of controlled substances.
(5) (a) Persons licensed under Subsection (2) or (3) shall maintain records and inventories in conformance with the record keeping and inventory requirements of federal and state law and any additional rules issued by the division.
(b) (i) Every physician, dentist, veterinarian, practitioner, or other person who is authorized to administer or professionally use a controlled substance shall keep a record of the drugs received by him and a record of all drugs administered, dispensed, or professionally used by him otherwise than by a prescription.
(ii) A person using small quantities or solutions or other preparations of those drugs for local application has complied with this Subsection (5)(b) if he keeps a record of the quantity, character, and potency of those solutions or preparations purchased or prepared by him, and of the dates when purchased or prepared.
(6) Controlled substances in Schedules I through V may be distributed only by a licensee and pursuant to an order form prepared in compliance with division rules or a lawful order under the rules and regulations of the United States.
(7) (a) A person may not write or authorize a prescription for a controlled substance unless he is:
(i) a practitioner authorized to prescribe drugs and medicine under the laws of this state or under the laws of another state having similar standards; and
(ii) licensed under this chapter or under the laws of another state having similar standards.
(b) A person other than a pharmacist licensed under the laws of this state, or his licensed intern, as required by Sections 58-17b-303 and 58-17b-304, may not dispense a controlled substance.
(c) (i) A controlled substance may not be dispensed without the written prescription of a practitioner, if the written prescription is required by the federal Controlled Substances Act.
(ii) That written prescription shall be made in accordance with Subsection (7)(a) and in conformity with Subsection (7)(d).
(iii) In emergency situations, as defined by division rule, controlled substances may be dispensed upon oral prescription of a practitioner, if reduced promptly to writing on forms designated by the division and filed by the pharmacy.
(iv) Prescriptions reduced to writing by a pharmacist shall be in conformity with Subsection (7)(d).
(d) Except for emergency situations designated by the division, a person may not issue, fill, compound, or dispense a prescription for a controlled substance unless the prescription is signed by the prescriber in ink or indelible pencil or is signed with an electronic signature of the prescriber as authorized by division rule, and contains the following information:
(i) the name, address, and registry number of the prescriber;
(ii) the name, address, and age of the person to whom or for whom the prescription is issued;
(iii) the date of issuance of the prescription; and
(iv) the name, quantity, and specific directions for use by the ultimate user of the controlled substance.
(e) A prescription may not be written, issued, filled, or dispensed for a Schedule I controlled substance.
(f) Except when administered directly to an ultimate user by a licensed practitioner, controlled substances are subject to the following restrictions:
(i) (A) A prescription for a Schedule II substance may not be refilled.
(B) A Schedule II controlled substance may not be filled in a quantity to exceed a one-month's supply, as directed on the daily dosage rate of the prescriptions.
(ii) A Schedule III or IV controlled substance may be filled only within six months of issuance, and may not be refilled more than six months after the date of its original issuance or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
(iii) All other controlled substances in Schedule V may be refilled as the prescriber's prescription directs, but they may not be refilled one year after the date the prescription was issued unless renewed by the practitioner.
(iv) Any prescription for a Schedule II substance may not be dispensed if it is not presented to a pharmacist for dispensing by a pharmacist or a pharmacy intern within 30 days after the date the prescription was issued, or 30 days after the dispensing date, if that date is specified separately from the date of issue.
(v) A practitioner may issue more than one prescription at the same time for the same Schedule II controlled substance, but only under the following conditions:
(A) no more than three prescriptions for the same Schedule II controlled substance may be issued at the same time;
(B) no one prescription may exceed a 30-day supply;
(C) a second or third prescription shall include the date of issuance and the date for dispensing; and
(D) unless the practitioner determines there is a valid medical reason to the contrary, the date for dispensing a second or third prescription may not be fewer than 30 days from the dispensing date of the previous prescription.
(vi) Each prescription for a controlled substance may contain only one controlled substance per prescription form and may not contain any other legend drug or prescription item.
(g) An order for a controlled substance in Schedules II through V for use by an inpatient or an outpatient of a licensed hospital is exempt from all requirements of this Subsection (7) if the order is:
(i) issued or made by a prescribing practitioner who holds an unrestricted registration with the federal Drug Enforcement Administration, and an active Utah controlled substance license in good standing issued by the division under this section, or a medical resident who is exempted from licensure under Subsection 58-1-307(1)(c);
(ii) authorized by the prescribing practitioner treating the patient and the prescribing practitioner designates the quantity ordered;
(iii) entered upon the record of the patient, the record is signed by the prescriber affirming his authorization of the order within 48 hours after filling or administering the order, and the patient's record reflects the quantity actually administered; and
(iv) filled and dispensed by a pharmacist practicing his profession within the physical structure of the hospital, or the order is taken from a supply lawfully maintained by the hospital and the amount taken from the supply is administered directly to the patient authorized to receive it.
(h) A practitioner licensed under this chapter may not prescribe, administer, or dispense a controlled substance to a child, without first obtaining the consent required in Section 78-14-5 of a parent, guardian, or person standing in loco parentis of the child except in cases of an emergency. For purposes of this Subsection (7)(h), "child" has the same meaning as defined in Section 78-3a-103, and "emergency" means any physical condition requiring the administration of a controlled substance for immediate relief of pain or suffering.
(i) A practitioner licensed under this chapter may not prescribe or administer dosages of a controlled substance in excess of medically recognized quantities necessary to treat the ailment, malady, or condition of the ultimate user.
(j) A practitioner licensed under this chapter may not prescribe, administer, or dispense any controlled substance to another person knowing that the other person is using a false name, address, or other personal information for the purpose of securing the controlled substance.
(k) A person who is licensed under this chapter to manufacture, distribute, or dispense a controlled substance may not manufacture, distribute, or dispense a controlled substance to another licensee or any other authorized person not authorized by this license.
(l) A person licensed under this chapter may not omit, remove, alter, or obliterate a symbol required by this chapter or by a rule issued under this chapter.
(m) A person licensed under this chapter may not refuse or fail to make, keep, or furnish any record notification, order form, statement, invoice, or information required under this chapter.
(n) A person licensed under this chapter may not refuse entry into any premises for inspection as authorized by this chapter.
(o) A person licensed under this chapter may not furnish false or fraudulent material information in any application, report, or other document required to be kept by this chapter or willfully make any false statement in any prescription, order, report, or record required by this chapter.
(8) (a) (i) Any person licensed under this chapter who is found by the division to have violated any of the provisions of Subsections (7)(k) through (7)(o) is subject to a penalty not to exceed $5,000. The division shall determine the procedure for adjudication of any violations in accordance with Sections 58-1-106 and 58-1-108.
(ii) The division shall deposit all penalties collected under Subsection (8)(a)(i) in the General Fund as a dedicated credit to be used by the division under Subsection 58-37-7.7(1).
(b) Any person who knowingly and intentionally violates Subsections (7)(h) through (7)(j) is:
(i) upon first conviction, guilty of a class B misdemeanor;
(ii) upon second conviction, guilty of a class A misdemeanor; and
(iii) on third or subsequent conviction, guilty of a third degree felony.
(c) Any person who knowingly and intentionally violates Subsections (7)(k) through (7)(o) shall upon conviction be guilty of a third degree felony.
(9) Any information communicated to any licensed practitioner in an attempt to unlawfully procure, or to procure the administration of, a controlled substance is not considered to be a privileged communication.
Section 876. Section 58-37-21 is amended to read:
58-37-21
. Admissibility of Utah State Crime Laboratory documents -- Drug analysis in criminal pretrial proceedings.The commissioner of the Department of Public Safety shall establish standards for administration and interpretation of chemical and forensic analysis in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, of:
(1) controlled substances as provided in Title 58, Chapter 37;
(2) drug paraphernalia as provided in Title 58, Chapter 37a;
(3) imitation controlled substances as provided in Title 58, Chapter 37b; and
(4) controlled substance precursors as provided in Title 58, Chapter 37d.
Section 877. Section 58-37c-3 is amended to read:
58-37c-3
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Board" means the Controlled Substance Precursor Advisory Board created in Section 58-37c-4.
(2) "Controlled substance precursor" includes a chemical reagent and means any of the following:
(a) Phenyl-2-propanone;
(b) Methylamine;
(c) Ethylamine;
(d) D-lysergic acid;
(e) Ergotamine and its salts;
(f) Diethyl malonate;
(g) Malonic acid;
(h) Ethyl malonate;
(i) Barbituric acid;
(j) Piperidine and its salts;
(k) N-acetylanthranilic acid and its salts;
(l) Pyrrolidine;
(m) Phenylacetic acid and its salts;
(n) Anthranilic acid and its salts;
(o) Morpholine;
(p) Ephedrine;
(q) Pseudoephedrine;
(r) Norpseudoephedrine;
(s) Phenylpropanolamine;
(t) Benzyl cyanide;
(u) Ergonovine and its salts;
(v) 3,4-Methylenedioxyphenyl-2-propanone;
(w) propionic anhydride;
(x) Insosafrole;
(y) Safrole;
(z) Piperonal;
(aa) N-Methylephedrine;
(bb) N-ethylephedrine;
(cc) N-methylpseudoephedrine;
(dd) N-ethylpseudoephedrine;
(ee) Hydriotic acid;
(ff) gamma butyrolactone (GBL), including butyrolactone, 1,2 butanolide, 2-oxanolone, tetrahydro-2-furanone, dihydro-2(3H)-furanone, and tetramethylene glycol, but not including gamma aminobutric acid (GABA);
(gg) 1,4 butanediol;
(hh) any salt, isomer, or salt of an isomer of the chemicals listed in Subsections (2)(a) through (gg);
(ii) Crystal iodine;
(jj) Iodine at concentrations greater than 1.5% by weight in a solution or matrix;
(kk) Red phosphorous, except as provided in Section 58-37c-19.7;
(ll) anhydrous ammonia, except as provided in Section 58-37c-19.9;
(mm) any controlled substance precursor listed under the provisions of the Federal Controlled Substances Act which is designated by the director under the emergency listing provisions set forth in Section 58-37c-14; and
(nn) any chemical which is designated by the director under the emergency listing provisions set forth in Section 58-37c-14.
(3) "Deliver," "delivery," "transfer," or "furnish" means the actual, constructive, or attempted transfer of a controlled substance precursor.
(4) "Matrix" means something, as a substance, in which something else originates, develops, or is contained.
(5) "Person" means any individual, group of individuals, proprietorship, partnership, joint venture, corporation, or organization of any type or kind.
(6) "Practitioner" means a physician, dentist, podiatric physician, veterinarian, pharmacist, scientific investigator, pharmacy, hospital, pharmaceutical manufacturer, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, administer, or use in teaching, or chemical analysis a controlled substance in the course of professional practice or research in this state.
(7) (a) "Regulated distributor" means a person within the state who provides, sells, furnishes, transfers, or otherwise supplies a listed controlled substance precursor chemical in a regulated transaction.
(b) "Regulated distributor" does not include any person excluded from regulation under this chapter.
(8) (a) "Regulated purchaser" means any person within the state who receives a listed controlled substance precursor chemical in a regulated transaction.
(b) "Regulated purchaser" does not include any person excluded from regulation under this chapter.
(9) "Regulated transaction" means any actual, constructive or attempted:
(a) transfer, distribution, delivery, or furnishing by a person within the state to another person within or outside of the state of a threshold amount of a listed precursor chemical; or
(b) purchase or acquisition by any means by a person within the state from another person within or outside the state of a threshold amount of a listed precursor chemical.
(10) "Retail distributor" means a grocery store, general merchandise store, drug store, or other entity or person whose activities as a distributor are limited almost exclusively to sales for personal use:
(a) in both number of sales and volume of sales; and
(b) either directly to walk-in customers or in face-to-face transactions by direct sales.
(11) "Threshold amount of a listed precursor chemical" means any amount of a controlled substance precursor or a specified amount of a controlled substance precursor in a matrix; however, the division may exempt from the provisions of this chapter a specific controlled substance precursor in a specific amount and in certain types of transactions which provisions for exemption shall be defined by the division by rule adopted pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(12) "Unlawful conduct" as defined in Section 58-1-501 includes knowingly and intentionally:
(a) engaging in a regulated transaction without first being appropriately licensed or exempted from licensure under this chapter;
(b) acting as a regulated distributor and selling, transferring, or in any other way conveying a controlled substance precursor to a person within the state who is not appropriately licensed or exempted from licensure as a regulated purchaser, or selling, transferring, or otherwise conveying a controlled substance precursor to a person outside of the state and failing to report the transaction as required;
(c) acting as a regulated purchaser and purchasing or in any other way obtaining a controlled substance precursor from a person within the state who is not a licensed regulated distributor, or purchasing or otherwise obtaining a controlled substance precursor from a person outside of the state and failing to report the transaction as required;
(d) engaging in a regulated transaction and failing to submit reports and keep required records of inventories required under the provisions of this chapter or rules adopted pursuant to this chapter;
(e) making any false statement in any application for license, in any record to be kept, or on any report submitted as required under this chapter;
(f) with the intent of causing the evasion of the recordkeeping or reporting requirements of this chapter and rules related to this chapter, receiving or distributing any listed controlled substance precursor chemical in any manner designed so that the making of records or filing of reports required under this chapter is not required;
(g) failing to take immediate steps to comply with licensure, reporting, or recordkeeping requirements of this chapter because of lack of knowledge of those requirements, upon becoming informed of the requirements;
(h) presenting false or fraudulent identification where or when receiving or purchasing a listed controlled substance precursor chemical;
(i) creating a chemical mixture for the purpose of evading any licensure, reporting or recordkeeping requirement of this chapter or rules related to this chapter, or receiving a chemical mixture created for that purpose;
(j) if the person is at least 18 years of age, employing, hiring, using, persuading, inducing, enticing, or coercing another person under 18 years of age to violate any provision of this chapter, or assisting in avoiding detection or apprehension for any violation of this chapter by any federal, state, or local law enforcement official; and
(k) obtaining or attempting to obtain or to possess any controlled substance precursor or any combination of controlled substance precursors knowing or having a reasonable cause to believe that the controlled substance precursor is intended to be used in the unlawful manufacture of any controlled substance.
(13) "Unprofessional conduct" as defined in Section 58-1-102 and as may be further defined by rule includes the following:
(a) violation of any provision of this chapter, the Controlled Substance Act of this state or any other state, or the Federal Controlled Substance Act; and
(b) refusing to allow agents or representatives of the division or authorized law enforcement personnel to inspect inventories or controlled substance precursors or records or reports relating to purchases and sales or distribution of controlled substance precursors as such records and reports are required under this chapter.
Section 878. Section 58-37c-6 is amended to read:
58-37c-6
. Division duties.The division shall be responsible for the licensing and reporting provisions of this chapter and those duties shall include:
(1) providing for a system of licensure of regulated distributors and regulated purchasers;
(2) refusing to renew a license or revoking, suspending, restricting, placing on probation, issuing a private or public letter of censure or reprimand, or imposing other appropriate action against a license;
(3) with respect to the licensure and reporting provisions of this chapter, investigating or causing to be investigated any violation of this chapter by any person and to cause, when necessary, appropriate administrative action with respect to the license of that person;
(4) presenting evidence obtained from investigations conducted by appropriate county attorneys and the Office of the Attorney General for civil or criminal prosecution or for administrative action against a licensee;
(5) conducting hearings for the purpose of revoking, suspending, placing on probation, or imposing other appropriate administrative action against the license of regulated distributors or regulated purchasers in accordance with the provisions of Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(6) assisting all other law enforcement agencies of the state in enforcing all laws regarding controlled substance precursors;
(7) specifying reports, frequency of reports, and conditions under which reports are to be submitted and to whom reports are to be submitted by regulated distributors and regulated purchasers with respect to transactions involving threshold amounts of controlled substance precursors; and
(8) performing all other functions necessary to fulfill division duties and responsibilities as outlined under this chapter or rules adopted pursuant to this chapter.
Section 879. Section 58-37c-8 is amended to read:
58-37c-8
. License -- Exceptions from licensure or regulation.(1) Any person engaged in a regulated transaction must be appropriately licensed under this chapter as a regulated distributor and regulated purchaser unless excepted from licensure under this chapter.
(2) The division shall:
(a) establish the form of application for a license, the requirements for licensure, and fees for initial licensure and renewal; and
(b) identify required information to be contained in the application as a condition of licensure.
(3) A practitioner who holds a Utah Controlled Substance License and a Controlled Substance Registration issued by the Drug Enforcement Administration of the U.S. Government is excepted from licensure under this chapter.
(4) Any purchase, sale, transfer, furnishing, or receipt of any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine, if the drug is lawfully purchased, sold, transferred, or furnished as an over-the-counter medication without prescription pursuant to the federal Food, Drug and Cosmetic Act, 21 USC, Sec. 301 et seq., or regulations adopted under that act, are excepted from licensure, reporting, and recordkeeping under this chapter, except that products containing ephedrine, pseudoephedrine, or phenylpropanolamine are subject to Section 58-37c-20.5.
(5) Any purchase, sale, transfer, receipt, or manufacture of any dietary supplement, vitamins, minerals, herbs, or other similar substances, including concentrates or extracts, which are not otherwise prohibited by law, and which may contain naturally occurring amounts of chemicals or substances listed in this chapter, or in rules adopted pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, are exempt from licensure under this chapter.
(6) A purchaser of two ounces or less of crystal iodine in a single transaction is not required to be licensed as a regulated purchaser if the transaction complies with Section 58-37c-18.
(7) Any purchase, sale, transfer, receipt, or manufacture of any product that contains any precursor chemical listed in Subsection 58-37c-3(2)(ff) or (gg) and that is not intended for human consumption is exempt from licensure or regulation and is not subject to criminal penalties under this chapter.
Section 880. Section 58-37c-14 is amended to read:
58-37c-14
. Emergency listing provision.(1) Upon a written finding of cause by the director that the listing of a chemical as a controlled substance precursor is necessary to protect the public health, safety, or welfare, the director may make an emergency listing of that chemical as a controlled substance precursor by adopting a rule pursuant to the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Such listing shall have effect until the close of the next immediately succeeding regular session of the Legislature. In the event the Legislature adopts the chemical as a controlled precursor by amendment to this chapter, the chemical shall remain listed under emergency provisions until the effective date of the amendment.
(3) Any violation of this chapter dealing with a controlled substance precursor listed under the emergency listing provisions of this section shall constitute a violation subject only to civil or administrative penalties.
Section 881. Section 58-39a-5 is amended to read:
58-39a-5
. Qualifications for certification.Applicants for certification as an alternative dispute resolution provider shall:
(1) submit an application in a form as prescribed by the division;
(2) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character; and
(4) complete a program of education or training, or both, in ADR or have demonstrated sufficient experience in ADR, as determined by the division in collaboration with the board.
Section 882. Section 58-40-5 is amended to read:
58-40-5
. License requirements.(1) The division shall issue a license to practice as a master therapeutic recreational specialist to any applicant who:
(a) (i) has completed an approved graduate degree in therapeutic recreation or a graduate degree with an approved emphasis in therapeutic recreation; and
(ii) has completed 4,000 hours of paid experience, as defined by division rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as a licensed therapeutic recreational specialist or as a certified therapeutic recreational specialist certified by the National Council for Therapeutic Recreation Certification;
(b) is of good moral character;
(c) submits an application;
(d) pays the required fee; and
(e) passes an approved examination.
(2) The division shall issue a license to practice as a therapeutic recreational specialist to any applicant who:
(a) has completed an approved bachelor's or graduate degree in therapeutic recreation, a bachelor's or graduate degree with an approved emphasis in therapeutic recreation, or a bachelor's or graduate degree with approved additional course work in therapeutic recreation after graduation;
(b) has completed an approved practicum;
(c) is of good moral character;
(d) submits an application;
(e) pays the required fee; and
(f) passes an approved examination.
(3) The division shall issue a license to practice as a therapeutic recreational technician to any applicant who:
(a) has received a high school diploma or GED equivalent;
(b) has completed:
(i) an approved educational course in therapeutic recreation taught by a licensed master therapeutic recreational specialist; or
(ii) six semester hours or nine quarter hours in therapeutic recreation from an accredited college or university;
(c) has completed an approved practicum under the supervision of a licensed master therapeutic recreational specialist or an on-site, full-time employed therapeutic recreational specialist;
(d) is of good moral character;
(e) submits an application;
(f) pays the required fee; and
(g) passes an approved examination.
Section 883. Section 58-40a-302 is amended to read:
58-40a-302
. Qualifications for licensure.The division shall issue a license to practice as an athletic trainer to an applicant who:
(1) has obtained a bachelor's or advanced degree from an accredited four-year college or university and meets the minimum athletic training curriculum requirement established by the board by rule;
(2) has successfully completed the certification examination administered by the Board of Certification Inc. or equivalent examination approved or recognized by the board;
(3) is in good standing with and provides documentation of current certification by the Board of Certification Inc. or a nationally recognized credentialing agency approved by the board;
(4) submits an application to the division on a form prescribed by the division; and
(5) pays the required licensing fee as determined by the department under Section [63-38-3.2] 63J-1-303.
Section 884. Section 58-40a-304 is amended to read:
58-40a-304
. Term of license -- Expiration -- Renewal.(1) (a) The division shall issue each license for an athletic trainer in accordance with a two-year renewal cycle established by rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The division may, by rule, extend or shorten a renewal period by as much as one year to stagger the renewal cycles it administers.
(2) Each license automatically expires on the expiration date shown on the license unless the licensee renews it in accordance with Section 58-1-308.
Section 885. Section 58-41-5 is amended to read:
58-41-5
. Licensure requirements.To obtain and maintain a license as a speech-language pathologist or audiologist, the applicant must:
(1) submit a completed application in the form and content prescribed by the division and pay a fee to the department in accordance with Section [63-38-3.2] 63J-1-303;
(2) be of good moral character;
(3) provide the committee with verification:
(a) from the educational institutions involved, that the applicant is the legal holder of a doctor's or master's degree or its equivalent in the area of speech-language pathology, speech science, or audiology, from an accredited university or college, based on a program of studies primarily in the field of speech-language pathology, speech sciences, or audiology; and
(b) that he has had training and experience in treating and managing the major communication disabilities identified in speech-language pathology or audiology;
(4) be in compliance with the regulations of conduct and codes of ethics for the profession of speech-language pathology and audiology;
(5) submit to the board certified evidence of having completed at least one year of professional experience (at least 30 hours per week for an academic year) of direct clinical experience in treatment and management of patients. That treatment and management shall be supervised and attested by one holding a license under this chapter, the CCC, or their full equivalent;
(6) submit transcripts to the board from the educational institutions involved, indicating a doctor's or master's degree from an accredited program or satisfactory completion of at least 90 quarter hours in speech or hearing disorders, of which at least 50 shall be for graduate level credit. No less than nine and no more than 12 quarter hours shall be in basic and clinical audiology for persons applying for the license in speech-language pathology. No less than nine and no more than 12 quarter hours shall be in basic and functional speech-language pathology for persons applying for a license in audiology. No more than three-quarter hours shall be in thesis or student research; and
(7) pass a nationally standardized examination in speech-language pathology or audiology which is the same as or equivalent to the examination required for the CCC and with pass-fail criteria equivalent to current ASHA standards. The board may, in its discretion, require an applicant to pass an acceptable practical demonstration of clinical skills to an examining committee of licensed speech-language pathologists appointed by the board.
Section 886. Section 58-41-13 is amended to read:
58-41-13
. Fees.The department shall set fees in cooperation with the board and in accordance with Section [63-38-3.2] 63J-1-303 and shall collect all fees.
Section 887. Section 58-42a-302 is amended to read:
58-42a-302
. Qualifications for licensure.(1) All applicants for licensure as an occupational therapist shall:
(a) submit an application in a form as prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character as it relates to the functions and responsibilities of the practice of occupational therapy;
(d) graduate with a bachelors or graduate degree in occupational therapy from a program accredited by the Accreditation Council for Occupational Therapy Education; and
(e) be certified by the National Board for Certification in Occupational Therapy as an occupational therapist registered.
(2) All applicants for licensure as an occupational therapist assistant shall:
(a) submit an application in a form as prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character as it relates to the functions and responsibilities of the practice of occupational therapy;
(d) graduate with a two-year associate degree in occupational therapy from a program accredited by the Accreditation Council for Occupational Therapy Education; and
(e) be certified by the National Board for Certification in Occupational Therapy as a certified occupational therapist assistant.
Section 888. Section 58-44a-102 is amended to read:
58-44a-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct in accordance with a fine schedule established by rule and as a result of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) "Board" means the Certified Nurse Midwife Board created in Section 58-44a-201.
(3) "Consultation and Referral Plan" means a written plan jointly developed by a certified nurse midwife, as defined in Subsection (6), and a consulting physician that permits the certified nurse midwife to prescribe schedule II-III controlled substances in consultation with the consulting physician.
(4) "Consulting physician" means a physician and surgeon or osteopathic physician:
(a) licensed as a physician;
(b) qualified by education, training, and current practice in obstetrics, gynecology, or both to act as a consulting physician to a nurse midwife practicing under this chapter and providing intrapartum care or prescribing Schedule II-III controlled substances; and
(c) who has agreed under a practice plan to be available to consult with a nurse midwife, which plan does not include the consulting physician's being present at the time or place the nurse midwife is engaged in practice.
(5) "Individual" means a natural person.
(6) "Nurse midwife" means a person licensed under this chapter to engage in practice as a certified nurse midwife.
(7) "Physician" means a physician and surgeon or osteopathic surgeon licensed under Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68, Utah Osteopathic Medical Practice Act.
(8) "Practice as a certified nurse midwife" means:
(a) practice as a registered nurse as defined in Section 58-31b-102, and as consistent with the education, training, experience, and current competency of the licensee; and
(b) practice of nursing within the generally recognized scope and standards of nurse midwifery as defined by rule and consistent with professionally recognized preparations and educational standards of a certified nurse midwife by a person licensed under this chapter, which practice includes the authority to:
(i) elicit and record a patient's complete health information, including physical examination, history, and laboratory findings commonly used in providing obstetrical, gynecological, and well infant services to a patient;
(ii) assess findings and upon abnormal findings from the history, physical examination, or laboratory findings, manage the treatment of the patient, collaborate with the consulting physician or another qualified physician, or refer the patient to the consulting physician or to another qualified physician as appropriate;
(iii) diagnose, plan, and implement appropriate patient care, including the administration and prescribing of:
(A) prescription drugs;
(B) schedule IV-V controlled substances; and
(C) schedule II-III controlled substances in accordance with a consultation and referral plan;
(iv) evaluate the results of patient care;
(v) consult as is appropriate regarding patient care and the results of patient care;
(vi) manage the intrapartum period according to accepted standards of nurse midwifery practice and a written practice and referral plan, including performance of routine episiotomy and repairs, and administration of anesthesia, including local, pudendal, or paracervical block anesthesia, but not including general anesthesia and major conduction anesthesia;
(vii) manage the postpartum period;
(viii) provide gynecological services;
(ix) provide noncomplicated newborn and infant care to the age of one year; and
(x) represent or hold oneself out as a certified nurse midwife, or nurse midwife, or use the title certified nurse midwife, nurse midwife, or the initials C.N.M., N.M., or R.N.
(9) "Practice and referral plan" means a written plan entered into with a consulting physician and detailing guidelines by which a certified nurse midwife consults, collaborates, and refers patients.
(10) "Unlawful conduct" is defined in Sections 58-1-501 and 58-44a-501.
(11) "Unlicensed assistive personnel" means any unlicensed person, regardless of title, to whom tasks are delegated by a licensed certified nurse midwife in accordance with the standards of the profession as defined by rule.
(12) "Unprofessional conduct" is defined in Sections 58-1-501 and 58-44a-502 and as may be further defined by rule.
Section 889. Section 58-44a-302 is amended to read:
58-44a-302
. Qualifications for licensure.(1) An applicant for licensure as a nurse midwife shall:
(a) submit an application in a form as prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) at the time of application for licensure hold a license in good standing as a registered nurse in Utah, or be at that time qualified for a license as a registered nurse under Title 58, Chapter 31b, Nurse Practice Act;
(e) have completed:
(i) a certified nurse midwifery education program accredited by the American College of Nurse Midwives and approved by the division; or
(ii) a nurse midwifery education program located outside of the United States which is approved by the division and is equivalent to a program accredited by the American College of Nurse Midwives, as demonstrated by a graduate's being accepted to sit for the national certifying examination administered by the American College of Nurse Midwives or its designee; and
(f) have passed examinations established by the division rule in collaboration with the board within two years after completion of the approved education program required under Subsection (1)(e).
(2) For purposes of Subsection (1)(e), as of January 1, 2010, the accredited education program or it's equivalent must grant a graduate degree, including post-master's certificate, in nurse midwifery.
Section 890. Section 58-44a-402 is amended to read:
58-44a-402
. Authority to assess penalty.(1) After a proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose an administrative penalty of up to $10,000 for unprofessional or unlawful conduct under this chapter in accordance with a fine schedule established by rule.
(2) The assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
(3) The division may impose an administrative penalty of up to $500 for any violation of Subsection 58-44a-501(2), (3), or (4), consistent with Section 58-44a-503.
Section 891. Section 58-46a-302 is amended to read:
58-46a-302
. Qualifications for licensure.(1) Each applicant for licensure as a hearing instrument specialist shall:
(a) submit to the division an application in a form prescribed by the division;
(b) pay a fee as determined by the division pursuant to Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) (i) have successfully completed 4,000 hours of practice as a hearing instrument intern within the state under supervision by a supervising hearing instrument specialist in accordance with Section 58-46a-302.5 or an equivalent as approved by the division; or
(ii) demonstrate successful practice for the equivalent of two years of full-time practice as a licensed hearing instrument specialist in another state requiring licensure and practice in conformity with defined lawful and professional standards of practice;
(e) have qualified for and currently hold board certification by the National Board for Certification - Hearing Instrument Sciences, or an equivalent certification approved by the division in collaboration with the board;
(f) have passed the Utah Law and Rules Examination for Hearing Instrument Specialists; and
(g) if the applicant holds a hearing instrument intern license, surrender the hearing instrument intern license at the time of licensure as a hearing instrument specialist.
(2) Each applicant for licensure as a hearing instrument intern shall:
(a) submit to the division an application in a form prescribed by the division;
(b) pay a fee as determined by the division pursuant to Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) have passed the Utah Law and Rules Examination for Hearing Instrument Specialists; and
(e) present evidence acceptable to the division and the board that the applicant, when licensed, will practice as a hearing instrument intern only under supervision of a supervising hearing instrument specialist as required under Subsection (1)(d).
Section 892. Section 58-47b-302 is amended to read:
58-47b-302
. License classifications -- Qualifications for licensure.(1) The division shall issue licenses under this chapter in the classifications of:
(a) massage therapist; and
(b) massage apprentice.
(2) Each applicant for licensure as a massage therapist shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) be 18 years of age or older;
(e) have either:
(i) (A) graduated from a school of massage having a curriculum which meets standards established by division rule made in collaboration with the board; or
(B) completed equivalent education and training in compliance with division rule; or
(ii) completed a massage apprenticeship program consisting of a minimum of 1,000 hours of supervised training over a minimum of 12 months and in accordance with standards established by the division by rule made in collaboration with the board; and
(f) pass examinations established by rule by the division in collaboration with the board.
(3) Each applicant for licensure as a massage apprentice shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) be 18 years of age or older;
(e) provide satisfactory evidence to the division that the individual will practice as a massage apprentice only under the direct supervision of a licensed massage therapist in good standing and who has engaged in the lawful practice of massage therapy as a licensed massage therapist for not less than 6,000 hours; and
(f) successfully complete an examination as required by division rule.
(4) (a) Any new massage therapist or massage apprentice applicant shall submit fingerprint cards in a form acceptable to the division at the time the license application is filed and shall consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the Federal Bureau of Investigation regarding the application.
(b) The division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check for each new massage therapist or apprentice applicant through the national criminal history system (NCIC) or any successor system.
(c) The cost of the background check and the fingerprinting shall be borne by the applicant.
(5) (a) Any new massage therapist or massage apprentice license issued under this section shall be conditional, pending completion of the criminal background check. If the criminal background check discloses the applicant has failed to accurately disclose a criminal history, the license shall be immediately and automatically revoked.
(b) Any person whose conditional license has been revoked under Subsection (5)(a) shall be entitled to a post-revocation hearing to challenge the revocation. The hearing shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(6) An applicant who successfully completes a fingerprint background check under Subsection (4) may not be required by any other state or local government body to submit to a second fingerprint background check as a condition of lawfully practicing massage therapy in this state.
Section 893. Section 58-53-103 is amended to read:
58-53-103
. Education and enforcement fund.(1) There is created a restricted special revenue fund known as the "Landscape Architects Education and Enforcement Fund."
(2) The fund consists of monies from:
(a) a surcharge placed on application fees for initial, renewal, and reinstatement licensure under this chapter, in an amount established by the division with the collaboration of the board in accordance with Section [63-38-3.2] 63J-1-303, not to exceed 50% of the respective fee; and
(b) administrative penalties collected pursuant to this chapter.
(3) The fund shall earn interest, and all interest earned on fund monies shall be deposited into the fund.
(4) The director may, with concurrence of the board, make distributions from the fund for the following purposes:
(a) education and training of licensees under this chapter;
(b) education and training of the public or other interested persons in matters concerning landscape architectural laws and practices; and
(c) enforcement of this chapter by:
(i) investigating unprofessional or unlawful conduct; and
(ii) providing legal representation to the division when the division takes legal action against a person engaging in unprofessional or unlawful conduct.
(5) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess shall be transferred to the General Fund.
(6) The division shall report annually to the appropriate appropriations subcommittee of the Legislature concerning the fund.
Section 894. Section 58-53-302 is amended to read:
58-53-302
. Qualifications for licensure.(1) Each applicant for licensure as a landscape architect shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) provide satisfactory evidence of good moral character;
(d) (i) have graduated and received an earned bachelors or masters degree from a landscape architecture program meeting criteria established by rule by the division in collaboration with the board; or
(ii) have completed not less than eight years of supervised practical experience in landscape architecture which meets the requirements established by rule by the division in collaboration with the board; and
(e) have successfully passed examinations established by rule by the division in collaboration with the board.
(2) Satisfactory completion of each year of a landscape architectural program described in Subsection (1)(d)(i) is equivalent to one year of experience for purposes of Subsection (1)(d)(ii).
Section 895. Section 58-53-502 is amended to read:
58-53-502
. Citations -- Penalty for unlawful conduct.(1) (a) If upon inspection or investigation, the division concludes that a person has violated Subsections 58-1-501(1)(a) through (d), Section 58-53-501, or Section 58-53-603 or any rule or order issued with respect to Section 58-53-501, and that disciplinary action is appropriate, the director or his designee from within the division for each alternative respectively, shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who violates Subsections 58-1-501(1)(a) through (d) or Section 58-53-501 or any rule or order issued with respect to Section 58-53-501, as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to Subsection (1)(i) and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsections 58-1-501(1)(a) through (d) or Section 58-53-501 or any rule or order issued with respect to Section 58-53-501.
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-53-401 may not be assessed through a citation.
(b) A citation shall:
(i) be in writing;
(ii) describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated;
(iii) clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(iv) clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(c) The division may issue a notice in lieu of a citation.
(d) Each citation issued under this section, or a copy of each citation, may be served upon any person whom a summons may be served in accordance with the Utah Rules of Civil Procedure and may be made personally or upon his agent by a division investigator or by any person specially designated by the director or by mail.
(e) If within 20 calendar days from the service of the citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review. The period to contest a citation may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(h) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(i) The director or his designee shall assess fines according to the following:
(i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000; and
(iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to $2,000 for each day of continued offense.
(2) An action initiated for a first or second offense which has not yet resulted in a final order of the division does not preclude initiation of any subsequent action for a second or subsequent offense during the pendency of any preceding action. The final order on a subsequent action shall be considered a second or subsequent offense, respectively, provided the preceding action resulted in a first or second offense, respectively.
(3) Any penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located. Any county attorney or the attorney general of the state shall provide legal assistance and advice to the director in any action to collect the penalty. In any action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded to the division.
Section 896. Section 58-54-2 is amended to read:
58-54-2
. Definitions.In addition to the definition in Section 58-1-102, as used in this chapter:
(1) "Board" means the Radiology Technologist Licensing Board established under this chapter.
(2) "Practice of radiologic technology" means using radiation from a radioactive substance, radiology equipment, or any other source, in amounts beyond normal background levels, for diagnostic or therapeutic purposes on humans.
(3) "Radiologist" means a physician certified by the American Board of Radiology, the American Osteopathic Board of Radiology, the British Royal College of Radiology, or the Canadian College of Physicians and Surgeons.
(4) "Radiology equipment" means any medical radiation device that emits ionizing or nonionizing radiation or detects that radiation for the purpose or intended purpose of:
(a) diagnosing disease or other medical conditions in humans; or
(b) treating, curing, mitigating, or preventing disease in humans.
(5) "Radiology practical technician" means a person licensed under this chapter to engage in a practice of radiologic technology performing limited diagnostic radiology procedures:
(a) as defined and permitted by rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(b) under the supervision of a radiologist or radiology practitioner.
(6) "Radiology practitioner" means any person or individual licensed in this state as a physician and surgeon, osteopathic physician, podiatric physician, chiropractic physician, dentist, dental hygienist, or a physician's assistant, nurse practitioner, or nurse specialist practicing under the supervision of an approved supervising physician and in accordance with an approved protocol and utilization plan.
(7) "Radiology technologist" means a person licensed under this chapter to engage in the practice of radiology technology under the supervision of a radiologist or radiology practitioner including the administration of parenteral contrast media, radionucleides, and other medications incidental to radiology procedures provided the administrations are under the direct supervision of a qualified physician and the technologist is currently certified in cardiopulmonary resuscitation (CPR) and appropriate patient care procedures.
(8) "Unlawful conduct" as defined in Section 58-1-501 includes:
(a) using any of the following titles if not licensed as a radiology technologist under this chapter:
(i) radiology practical technician;
(ii) radiology technologist;
(iii) medical radiographer;
(iv) radiation therapist; or
(v) nuclear medicine technologist; and
(b) using the title "radiology practical technician" if not licensed as a radiology practical technician under this chapter.
(9) "Unprofessional conduct" as defined in Section 58-1-501 and as may be further defined by rule includes:
(a) any act or omission by a person licensed under this chapter that is contrary to the instructions of the radiologist or radiology practitioner responsible for supervising the licensee and which does or reasonably could pose a threat to the health, safety, or welfare of a patient or any other person;
(b) operating any radiology equipment that is known to be unsafe or not in compliance with all applicable state requirements regulating radiology equipment;
(c) permitting any person to operate any radiology equipment who is not permitted to do so under provisions of law or who is incompetent to operate radiology equipment for any reason;
(d) revealing to any unauthorized person any information considered confidential or privileged regarding any patient;
(e) the use of any controlled substance as defined by the statutes of this state except to the extent the controlled substance is lawfully prescribed to the licensee and used in accordance with the instructions of the prescribing practitioner; and
(f) willfully and intentionally or negligently making any false statement or entry on any patient record or upon any record used to facilitate payment for radiology services.
Section 897. Section 58-54-5 is amended to read:
58-54-5
. Requirements for licensure.(1) Each applicant for licensure as a radiology technologist or radiology practical technician shall:
(a) submit an application in a form prescribed by the division in collaboration with the board;
(b) pay a fee as determined by the department pursuant to Section [63-38-3.2] 63J-1-303; and
(c) be of good moral character.
(2) Each applicant for licensure as a radiology technologist shall, in addition to the requirements of Subsection (1):
(a) be a graduate of an accredited educational program in radiology technology or certified by the American Registry of Radiologic Technologists or any equivalent educational program approved by the division in collaboration with the board; and
(b) have passed an examination approved by the division in collaboration with the board.
(3) Each applicant for licensure as a radiology practical technician shall, in addition to the requirements of Subsection (1), have passed a basic examination and one or more specialty examinations that are competency based, using a task analysis of the scope of practice of radiology practical technicians in the state. The basic examination and the speciality examination shall be approved by the division in collaboration with the board and the licensing board of the profession within which the radiology practical technician will be practicing.
(4) The division shall provide for administration of the radiology practical technician examination not less than monthly at offices designated by the division and located:
(a) in Salt Lake City; and
(b) within each local health department jurisdictional area.
Section 898. Section 58-55-103 is amended to read:
58-55-103
. Construction Services Commission created -- Functions -- Appointment -- Qualifications and terms of members -- Vacancies -- Expenses -- Meetings.(1) (a) There is created within the division the Construction Services Commission.
(b) The commission shall:
(i) with the concurrence of the director, make reasonable rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer and enforce this chapter which are consistent with this chapter including:
(A) licensing of various licensees;
(B) examination requirements and administration of the examinations, to include approving and establishing a passing score for applicant examinations;
(C) standards of supervision for students or persons in training to become qualified to obtain a license in the trade they represent; and
(D) standards of conduct for various licensees;
(ii) approve or disapprove fees adopted by the division under Section [63-38-3.2] 63J-1-303;
(iii) except where the boards conduct them, conduct all administrative hearings not delegated to an administrative law judge relating to the licensing of any applicant;
(iv) except as otherwise provided in Sections 38-11-207 and 58-55-503, with the concurrence of the director, impose sanctions against licensees and certificate holders with the same authority as the division under Section 58-1-401;
(v) advise the director on the administration and enforcement of any matters affecting the division and the construction industry;
(vi) advise the director on matters affecting the division budget;
(vii) advise and assist trade associations in conducting construction trade seminars and industry education and promotion; and
(viii) perform other duties as provided by this chapter.
(2) (a) Initially the commission shall be comprised of the five members of the Contractors Licensing Board and two of the three chair persons from the Plumbers Licensing Board, the Alarm System Security and Licensing Board, and the Electricians Licensing Board.
(b) The terms of office of the commission members who are serving on the Contractors Licensing Board shall continue as they serve on the commission.
(c) Beginning July 1, 2004, the commission shall be comprised of nine members appointed by the executive director with the approval of the governor from the following groups:
(i) one member shall be a licensed general engineering contractor;
(ii) one member shall be a licensed general building contractor;
(iii) two members shall be licensed residential and small commercial contractors;
(iv) three members shall be the three chair persons from the Plumbers Licensing Board, the Alarm System Security and Licensing Board, and the Electricians Licensing Board; and
(v) two members shall be from the general public, provided, however that the certified public accountant on the Contractors Licensing Board will continue to serve until the current term expires, after which both members under this Subsection (2)(c)(v) shall be appointed from the general public.
(3) (a) Except as required by Subsection (3)(b), as terms of current commission members expire, the executive director with the approval of the governor shall appoint each new member or reappointed member to a four-year term ending June 30.
(b) Notwithstanding the requirements of Subsection (3)(a), the executive director with the approval of the governor shall, at the time of appointment or reappointment, adjust the length of terms to stagger the terms of commission members so that approximately 1/2 of the commission members are appointed every two years.
(c) A commission member may not serve more than two consecutive terms.
(4) The commission shall elect annually one of its members as chair, for a term of one year.
(5) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(6) (a) Members may not receive compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the members' official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
(7) (a) The commission shall meet at least monthly unless the director determines otherwise.
(b) The director may call additional meetings at the director's discretion, upon the request of the chair, or upon the written request of four or more commission members.
(8) (a) Five members constitute a quorum for the transaction of business.
(b) If a quorum is present when a vote is taken, the affirmative vote of commission members present is the act of the commission.
(9) The commission shall comply with the procedures and requirements of Title 13, Chapter 1, Department of Commerce, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in all of its adjudicative proceedings.
Section 899. Section 58-55-302 is amended to read:
58-55-302
. Qualifications for licensure.(1) Each applicant for a license under this chapter shall:
(a) submit an application prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) (i) meet the examination requirements established by rule by the commission with the concurrence of the director, except for the classifications of apprentice plumber, residential apprentice plumber, and apprentice electrician for whom no examination is required; or
(ii) if required in Section 58-55-304, the individual qualifier must pass the required examination if the applicant is a business entity;
(d) if an apprentice, identify the proposed supervisor of the apprenticeship;
(e) if an applicant for a contractor's license:
(i) produce satisfactory evidence of financial responsibility, except for a construction trades instructor for whom evidence of financial responsibility is not required;
(ii) produce satisfactory evidence of knowledge and experience in the construction industry and knowledge of the principles of the conduct of business as a contractor, reasonably necessary for the protection of the public health, safety, and welfare; and
(iii) be a licensed master electrician if an applicant for an electrical contractor's license or a licensed master residential electrician if an applicant for a residential electrical contractor's license; or
(iv) be a journeyman plumber or residential journeyman plumber if an applicant for a plumbing contractor's license; and
(f) if an applicant for a construction trades instructor license, satisfy any additional requirements established by rule.
(2) After approval of an applicant for a contractor's license by the applicable board and the division, the applicant shall file the following with the division before the division issues the license:
(a) proof of workers' compensation insurance which covers employees of the applicant in accordance with applicable Utah law;
(b) proof of public liability insurance in coverage amounts and form established by rule except for a construction trades instructor for whom public liability insurance is not required; and
(c) proof of registration as required by applicable law with the:
(i) Utah Department of Commerce;
(ii) Division of Corporations and Commercial Code;
(iii) Unemployment Insurance Division in the Department of Workforce Services, for purposes of Title 35A, Chapter 4, Employment Security Act;
(iv) State Tax Commission; and
(v) Internal Revenue Service.
(3) In addition to the general requirements for each applicant in Subsection (1), applicants shall comply with the following requirements to be licensed in the following classifications:
(a) A journeyman plumber applicant shall produce satisfactory evidence of:
(i) successful completion of the equivalent of at least four years of full-time training and instruction as a licensed apprentice plumber under supervision of a licensed journeyman plumber and in accordance with a planned program of training approved by the division;
(ii) at least eight years of full-time experience approved by the division in collaboration with the Plumbers Licensing Board; or
(iii) satisfactory evidence of meeting the qualifications determined by the board to be equivalent to Subsection (3)(a)(i) or (a)(ii).
(b) A residential journeyman plumber shall produce satisfactory evidence of:
(i) completion of the equivalent of at least three years of full-time training and instruction as a licensed apprentice plumber under the supervision of a licensed residential journeyman plumber or licensed journeyman plumber in accordance with a planned program of training approved by the division;
(ii) completion of at least six years of full-time experience in a maintenance or repair trade involving substantial plumbing work; or
(iii) meeting the qualifications determined by the board to be equivalent to Subsection (3)(b)(i) or (b)(ii).
(c) The conduct of licensed apprentice plumbers and their licensed supervisors shall be in accordance with the following:
(i) while engaging in the trade of plumbing, a licensed apprentice plumber shall be under the immediate supervision of a licensed journeyman plumber or a licensed residential journeyman plumber; and
(ii) a licensed plumbing apprentice in the fourth through tenth year of training may work without supervision for a period not to exceed eight hours in any 24-hour period, but if the apprentice does not become a licensed journeyman plumber or licensed residential journeyman plumber by the end of the tenth year of apprenticeship, this nonsupervision provision no longer applies.
(d) (i) A master electrician applicant shall produce satisfactory evidence that the applicant:
(A) is a graduate electrical engineer of an accredited college or university approved by the division and has one year of practical electrical experience as a licensed apprentice electrician;
(B) is a graduate of an electrical trade school, having received an associate of applied sciences degree following successful completion of a course of study approved by the division, and has two years of practical experience as a licensed journeyman electrician;
(C) has four years of practical experience as a journeyman electrician; or
(D) meets the qualifications determined by the board to be equivalent to Subsection (3)(d)(i)(A), (B), or (C).
(ii) (A) An individual holding a valid Utah license as a master electrician, based on at least eight years of practical experience as a licensed apprentice under the supervision of a licensed journeyman or master electrician, in effect immediately prior to May 3, 2004, is on and after May 3, 2004, considered to hold a current license under this chapter and satisfies the requirements of this Subsection (3)(d) for the purpose of renewal or reinstatement of that license under Section 58-55-303.
(B) An individual who has less than four years of practical experience as a licensed apprentice under the supervision of a licensed journeyman or master electrician prior to May 3, 2004, shall complete the education requirements of Subsection (3)(d)(i)(A) or (B) to qualify for licensing as a master electrician.
(C) An individual who has more than four but less than six years of practical experience as a licensed apprentice under the supervision of a licensed journeyman or master electrician prior to May 3, 2004, may satisfy the education requirements of Subsection (3)(d)(i)(A) or (B) by successfully passing a competency placement test approved by the board and administered at a Utah state institution of higher education.
(D) An individual who has more than six but less than eight years of practical experience as a licensed apprentice under the supervision of a licensed journeyman or master electrician prior to May 3, 2004, satisfies the education requirements of this Subsection (3)(d) by completing the eight-year term of practical experience within a reasonable time frame subsequent to May 3, 2004, as established by board rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(e) A master residential electrician applicant shall produce satisfactory evidence that the applicant:
(i) has at least two years of practical experience as a residential journeyman electrician; or
(ii) meets the qualifications determined by the board to be equivalent to this practical experience.
(f) (i) A journeyman electrician applicant shall produce satisfactory evidence that the applicant:
(A) has successfully completed at least four years of full-time training and instruction as a licensed apprentice electrician under the supervision of a master electrician or journeyman electrician and in accordance with a planned training program approved by the division;
(B) has at least eight years of full-time experience approved by the division in collaboration with the Electricians Licensing Board; or
(C) meets the qualifications determined by the board to be equivalent to Subsection (3)(f)(i)(A) or (B).
(ii) An individual holding a valid Utah license as a journeyman electrician, based on at least six years of full-time experience approved by the division in collaboration with the Electricians Licensing Board in effect immediately prior to May 3, 2004, is on and after May 3, 2004, considered to hold a current license under this chapter and satisfies the requirements of Subsection (3)(f)(i)(B) for the purpose of renewal or reinstatement of that license under Section 58-55-303.
(iii) An individual who has more than six but less than eight years of full-time experience approved by the division in collaboration with the Electricians Licensing Board prior to May 3, 2004, satisfies the requirements of Subsection (3)(f)(i) by completing the eight-year term of practical experience within a reasonable time frame subsequent to May 3, 2004, as established by board rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(g) A residential journeyman electrician applicant shall produce satisfactory evidence that the applicant:
(i) has successfully completed two years of training in an electrical training program approved by the division;
(ii) has four years of practical experience in wiring, installing, and repairing electrical apparatus and equipment for light, heat, and power under the supervision of a licensed master, journeyman, residential master, or residential journeyman electrician; or
(iii) meets the qualifications determined by the division and applicable board to be equivalent to Subsection (3)(g)(i) or (ii).
(h) The conduct of licensed apprentice electricians and their licensed supervisors shall be in accordance with the following:
(i) A licensed apprentice electrician shall be under the immediate supervision of a licensed master, journeyman, residential master, or residential journeyman electrician. An apprentice in the fourth year of training may work without supervision for a period not to exceed eight hours in any 24-hour period.
(ii) A licensed master, journeyman, residential master, or residential journeyman electrician may have under immediate supervision on a residential project up to three licensed apprentice electricians.
(iii) A licensed master or journeyman electrician may have under immediate supervision on nonresidential projects only one licensed apprentice electrician.
(i) An alarm company applicant shall:
(i) have a qualifying agent who is an officer, director, partner, proprietor, or manager of the applicant who:
(A) demonstrates 6,000 hours of experience in the alarm company business;
(B) demonstrates 2,000 hours of experience as a manager or administrator in the alarm company business or in a construction business; and
(C) passes an examination component established by rule by the commission with the concurrence of the director;
(ii) if a corporation, provide:
(A) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of all corporate officers, directors, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state; and
(B) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of all shareholders owning 5% or more of the outstanding shares of the corporation, except this shall not be required if the stock is publicly listed and traded;
(iii) if a limited liability company, provide:
(A) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of all company officers, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state; and
(B) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of all individuals owning 5% or more of the equity of the company;
(iv) if a partnership, the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of all general partners, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state;
(v) if a proprietorship, the names, addresses, dates of birth, Social Security numbers, and fingerprint cards of the proprietor, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state;
(vi) be of good moral character in that officers, directors, shareholders described in Subsection (3)(i)(ii)(B), partners, proprietors, and responsible management personnel have not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of an alarm company is considered by the board to indicate that the best interests of the public are served by granting the applicant a license;
(vii) document that none of the applicant's officers, directors, shareholders described in Subsection (3)(i)(ii)(B), partners, proprietors, and responsible management personnel have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(viii) document that none of the applicant's officers, directors, shareholders described in Subsection (3)(i)(ii)(B), partners, proprietors, and responsible management personnel are currently suffering from habitual drunkenness or from drug addiction or dependence;
(ix) file and maintain with the division evidence of:
(A) comprehensive general liability insurance in form and in amounts to be established by rule by the commission with the concurrence of the director;
(B) workers' compensation insurance that covers employees of the applicant in accordance with applicable Utah law; and
(C) registration as is required by applicable law with the:
(I) Division of Corporations and Commercial Code;
(II) Unemployment Insurance Division in the Department of Workforce Services, for purposes of Title 35A, Chapter 4, Employment Security Act;
(III) State Tax Commission; and
(IV) Internal Revenue Service; and
(x) meet with the division and board.
(j) Each applicant for licensure as an alarm company agent shall:
(i) submit an application in a form prescribed by the division accompanied by fingerprint cards;
(ii) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(iii) be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of an alarm company agent is considered by the board to indicate that the best interests of the public are served by granting the applicant a license;
(iv) not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(v) not be currently suffering from habitual drunkenness or from drug addiction or dependence; and
(vi) meet with the division and board if requested by the division or the board.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules establishing when Federal Bureau of Investigation records shall be checked for applicants as an alarm company or alarm company agent.
(5) To determine if an applicant meets the qualifications of Subsections (3)(i)(vi) and (3)(j)(iii), the division shall provide an appropriate number of copies of fingerprint cards to the Department of Public Safety with the division's request to:
(a) conduct a search of records of the Department of Public Safety for criminal history information relating to each applicant for licensure as an alarm company or alarm company agent and each applicant's officers, directors, shareholders described in Subsection (3)(i)(ii)(B), partners, proprietors, and responsible management personnel; and
(b) forward to the Federal Bureau of Investigation a fingerprint card of each applicant requiring a check of records of the F.B.I. for criminal history information under this section.
(6) The Department of Public Safety shall send to the division:
(a) a written record of criminal history, or certification of no criminal history record, as contained in the records of the Department of Public Safety in a timely manner after receipt of a fingerprint card from the division and a request for review of Department of Public Safety records; and
(b) the results of the F.B.I. review concerning an applicant in a timely manner after receipt of information from the F.B.I.
(7) (a) The division shall charge each applicant for licensure as an alarm company or alarm company agent a fee, in accordance with Section [63-38-3.2] 63J-1-303, equal to the cost of performing the records reviews under this section.
(b) The division shall pay the Department of Public Safety the costs of all records reviews, and the Department of Public Safety shall pay the F.B.I. the costs of records reviews under this section.
(8) Information obtained by the division from the reviews of criminal history records of the Department of Public Safety and the F.B.I. shall be used or disseminated by the division only for the purpose of determining if an applicant for licensure as an alarm company or alarm company agent is qualified for licensure.
(9) (a) An application for licensure under this chapter shall be denied if:
(i) the applicant has had a previous license, which was issued under this chapter, suspended or revoked within one year prior to the date of the applicant's application;
(ii) (A) the applicant is a partnership, corporation, or limited liability company; and
(B) any corporate officer, director, shareholder holding 25% or more of the stock in the applicant, partner, member, agent acting as a qualifier, or any person occupying a similar status, performing similar functions, or directly or indirectly controlling the applicant has served in any similar capacity with any person or entity which has had a previous license, which was issued under this chapter, suspended or revoked within one year prior to the date of the applicant's application; or
(iii) (A) the applicant is an individual or sole proprietorship; and
(B) any owner or agent acting as a qualifier has served in any capacity listed in Subsection (9)(a)(ii)(B) in any entity which has had a previous license, which was issued under this chapter, suspended or revoked within one year prior to the date of the applicant's application.
(b) An application for licensure under this chapter shall be reviewed by the appropriate licensing board prior to approval if:
(i) the applicant has had a previous license, which was issued under this chapter, suspended or revoked more than one year prior to the date of the applicant's application;
(ii) (A) the applicant is a partnership, corporation, or limited liability company; and
(B) any corporate officer, director, shareholder holding 25% or more of the stock in the applicant, partner, member, agent acting as a qualifier, or any person occupying a similar status, performing similar functions, or directly or indirectly controlling the applicant has served in any similar capacity with any person or entity which has had a previous license, which was issued under this chapter, suspended or revoked more than one year prior to the date of the applicant's application; or
(iii) (A) the applicant is an individual or sole proprietorship; and
(B) any owner or agent acting as a qualifier has served in any capacity listed in Subsection (9)(b)(ii)(B) in any entity which has had a previous license, which was issued under this chapter, suspended or revoked more than one year prior to the date of the applicant's application.
Section 900. Section 58-55-307 is amended to read:
58-55-307
. Confidentiality of records and reports.(1) Credit reports, financial statements, and other information submitted to the division by or at the request and direction of an applicant or licensee for the purpose of supporting a representation of financial responsibility constitute protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the records described in Subsection (1) are not open for public inspection and are not subject to discovery in civil or administrative proceedings.
Section 901. Section 58-55-308 is amended to read:
58-55-308
. Scope of practice -- Installation, repair, maintenance, cleaning, or replacement of gas appliance or combustion system -- Rules.(1) (a) The commission, with the concurrence of the director, may adopt reasonable rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to define and limit the scope of practice and operating standards of the classifications and subclassifications licensed under this chapter in a manner consistent with established practice in the relevant industry.
(b) The commission and the director may limit the field and scope of operations of a licensee under this chapter in accordance with the rules and the public health, safety, and welfare, based on the licensee's education, training, experience, knowledge, and financial responsibility.
(2) (a) The work and scope of practice covered by this Subsection (2) is the installation, repair, maintenance, cleaning, or replacement of a residential or commercial gas appliance or combustion system.
(b) The provisions of this Subsection (2) apply to any:
(i) licensee under this chapter whose license authorizes the licensee to perform the work described in Subsection (2)(a); and
(ii) person exempt from licensure under Subsection 58-55-305(1)(h).
(c) Any person described in Subsection (2)(b) that performs work described in Subsection (2)(a):
(i) must first receive training and certification as specified in rules adopted by the division; and
(ii) shall ensure that any employee authorized under other provisions of this chapter to perform work described in Subsection (2)(a) has first received training and certification as specified in rules adopted by the division.
(d) The division may exempt from the training requirements adopted under Subsection (2)(c) a person that has adequate experience, as determined by the division.
(3) The division may exempt the following individuals from the certification requirements adopted under Subsection (2)(c):
(a) a person who has passed a test equivalent to the level of testing required by the division for certification, or has completed an apprenticeship program that teaches the installation of gas line appliances and is approved by the Federal Bureau of Apprenticeship Training; and
(b) a person working under the immediate one-to-one supervision of a certified natural gas technician or a person exempt from certification.
(4) This section does not prohibit a licensed specialty contractor from accepting and entering into a contract involving the use of two or more crafts or trades if the performance of the work in the crafts or trades, other than that in which the contractor is licensed, is incidental and supplemental to the work for which the contractor is licensed.
Section 902. Section 58-55-503 is amended to read:
58-55-503
. Penalty for unlawful conduct -- Citations.(1) (a) (i) A person who violates Subsection 58-55-308(2), Subsection 58-55-501(1), (2), (3), (4), (5), (6), (7), (9), (10), (12), (14), or (15), or Subsection 58-55-504(2), or who fails to comply with a citation issued under this section after it is final, is guilty of a class A misdemeanor.
(ii) As used in this section in reference to Subsection 58-55-504(2), "person" means an individual and does not include a sole proprietorship, joint venture, corporation, limited liability company, association, or organization of any type.
(b) A person who violates the provisions of Subsection 58-55-501(8) may not be awarded and may not accept a contract for the performance of the work.
(2) A person who violates the provisions of Subsection 58-55-501(13) is guilty of an infraction unless the violator did so with the intent to deprive the person to whom money is to be paid of the money received, in which case the violator is guilty of theft, as classified in Section 76-6-412.
(3) Grounds for immediate suspension of the licensee's license by the division and the commission include the issuance of a citation for violation of Subsection 58-55-308(2), Section 58-55-501, or Subsection 58-55-504(2), or the failure by a licensee to make application to, report to, or notify the division with respect to any matter for which application, notification, or reporting is required under this chapter or rules adopted under this chapter, including applying to the division for a new license to engage in a new specialty classification or to do business under a new form of organization or business structure, filing with the division current financial statements, notifying the division concerning loss of insurance coverage, or change in qualifier.
(4) (a) If upon inspection or investigation, the division concludes that a person has violated the provisions of Subsection 58-55-308(2) or Subsections 58-55-501(1), (2), (3), (9), (10), (12), (14), (19), (21), or Subsection 58-55-504(2), or any rule or order issued with respect to these subsections, and that disciplinary action is appropriate, the director or the director's designee from within the division shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who is in violation of the provisions of Subsection 58-55-308(2), Subsection 58-55-501(1), (2), (3), (9), (10), (12), (14), (19), or (21), or Subsection 58-55-504(2), as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (4) and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsection 58-55-308(2), Subsection 58-55-501(1), (2), (3), (9), (10), (12), (14), (19), or (21), or Subsection 58-55-504(2).
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-55-401 may not be assessed through a citation.
(iii) (A) A person who receives a citation or is fined for violating Subsection 58-55-501(21) may also be issued a cease and desist order from engaging in work to be performed by a contractor licensed under this chapter unless the person meets the continuing education requirement within 30 days after receipt of the citation or fine.
(B) The order, if issued, shall be removed upon the person's completion of the continuing education requirement.
(C) This Subsection (4)(a)(iii) is repealed effective July 1, 2010.
(b) (i) Each citation shall be in writing and describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated.
(ii) The citation shall clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(iii) The citation shall clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(c) Each citation issued under this section, or a copy of each citation, may be served upon a person upon whom a summons may be served:
(i) in accordance with the Utah Rules of Civil Procedure;
(ii) personally or upon the person's agent by a division investigator or by a person specially designated by the director; or
(iii) by mail.
(d) (i) If within 20 calendar days from the service of a citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review.
(ii) The period to contest a citation may be extended by the division for cause.
(e) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(f) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(g) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(h) Fines shall be assessed by the director or the director's designee according to the following:
(i) for a first offense handled pursuant to Subsection (4)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (4)(a), a fine of up to $2,000; and
(iii) for any subsequent offense handled pursuant to Subsection (4)(a), a fine of up to $2,000 for each day of continued offense.
(i) (i) For purposes of issuing a final order under this section and assessing a fine under Subsection (4)(i), an offense constitutes a second or subsequent offense if:
(A) the division previously issued a final order determining that a person committed a first or second offense in violation of Subsection 58-55-308(2), Subsection 58-55-501(1), (2), (3), (9), (10), (12), (14), or (19), or Subsection 58-55-504(2); or
(B) (I) the division initiated an action for a first or second offense;
(II) no final order has been issued by the division in the action initiated under Subsection (4)(i)(i)(B)(I);
(III) the division determines during an investigation that occurred after the initiation of the action under Subsection (4)(i)(i)(B)(I) that the person committed a second or subsequent violation of the provisions of Subsection 58-55-308(2), Subsection 58-55-501(1), (2), (3), (9), (10), (12), (14), or (19), or Subsection 58-55-504(2); and
(IV) after determining that the person committed a second or subsequent offense under Subsection (4)(i)(i)(B)(III), the division issues a final order on the action initiated under Subsection (4)(i)(i)(B)(I).
(ii) In issuing a final order for a second or subsequent offense under Subsection (4)(i)(i), the division shall comply with the requirements of this section.
(5) (a) A penalty imposed by the director under Subsection (4)(h) shall be deposited into the Commerce Service Fund.
(b) A penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located.
(c) A county attorney or the attorney general of the state is to provide legal assistance and advice to the director in any action to collect the penalty.
(d) In an action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded.
Section 903. Section 58-56-4 is amended to read:
58-56-4
. Definitions -- Adoption of building codes -- Amendments -- Approval of other codes -- Exemptions.(1) As used in this section:
(a) "agricultural use" means a use that relates to the tilling of soil and raising of crops, or keeping or raising domestic animals;
(b) "not for human occupancy" means use of a structure for purposes other than protection or comfort of human beings, but allows people to enter the structure for:
(i) maintenance and repair; and
(ii) the care of livestock, crops, or equipment intended for agricultural use which are kept there; and
(c) "residential area" means land that is not used for an agricultural use and is:
(i) (A) within the boundaries of a city or town; and
(B) less than five contiguous acres;
(ii) (A) within a subdivision for which the county has approved a subdivision plat under Title 17, Chapter 27a, Part 6, Subdivisions; and
(B) less than two contiguous acres; or
(iii) not located in whole or in part in an agricultural protection area created under Title 17, Chapter 41, Agriculture Protection Area.
(2) (a) Subject to the provisions of Subsections (4) and (5), the following codes, each of which must be promulgated by a nationally recognized code authority, shall be adopted, in the manner described in Subsection (2)(b), as the construction codes which the state and each political subdivision of the state shall follow in the circumstances described in Subsection (3):
(i) a building code;
(ii) the National Electrical Code promulgated by the National Fire Protection Association;
(iii) a residential one and two family dwelling code;
(iv) a plumbing code;
(v) a mechanical code;
(vi) a fuel gas code;
(vii) an energy conservation code; and
(viii) a manufactured housing installation standard code.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division, in collaboration with the commission, shall adopt by rule specific editions of the codes described in Subsection (2)(a), and may adopt by rule successor editions of any adopted code.
(c) The division, in collaboration with the commission, may, in accordance with Section 58-56-7, adopt amendments to the codes adopted under Subsection (2)(a), to be applicable to the entire state or within one or more political subdivisions.
(3) Subject to the provisions of Subsections (4) and (5), the codes and amendments adopted under Subsection (2) shall be followed when:
(a) new construction is involved;
(b) the owner of an existing building, or the owner's agent, is voluntarily engaged in:
(i) the repair, renovation, remodeling, alteration, enlargement, rehabilitation, conservation, or reconstruction of the building; or
(ii) changing the character or use of the building in a manner which increases the occupancy loads, other demands, or safety risks of the building.
(4) (a) The division, in collaboration with the commission, has discretion to approve, without adopting, certain codes in addition to those described in Subsection (2)(a), including specific editions of the codes, for use by a compliance agency.
(b) If the applicable code is one which the division has approved under Subsection (4)(a), a compliance agency has the discretion to:
(i) adopt an ordinance requiring removal, demolition, or repair of a building, according to a code;
(ii) adopt, by ordinance or rule, a dangerous building code; or
(iii) adopt, by ordinance or rule, a building rehabilitation code.
(5) (a) Except in a residential area, a structure used solely in conjunction with agriculture use, and not for human occupancy, is exempted from the permit requirements of any code adopted by the division.
(b) Notwithstanding Subsection (5)(a), unless otherwise exempted, plumbing, electrical, and mechanical permits may be required when that work is included in the structure.
Section 904. Section 58-56-7 is amended to read:
58-56-7
. Code amendments -- Commission recommendations -- Division duties and responsibilities.(1) The division, with the commission, shall establish by rule the procedure and manner under which requests for amendments to codes under Subsection 58-56-4(2)(c) shall be:
(a) filed with the division; and
(b) recommended or declined for adoption.
(2) The division shall accept from any local regulators, state regulators, state agencies involved with the construction and design of buildings, the contractors, plumbers, or electricians licensing boards, or from recognized construction-related associations a request for amendment to the codes under Subsection 58-56-4(2)(c).
(3) The division may make recommendations to the commission for amendments to codes under Subsection 58-56-4(2)(c). The commission may also consider amendments on its own initiative.
(4) On May 15 and November 15 of each calendar year, or the first government working day thereafter if either date falls on a weekend or government holiday, the division shall convene a public hearing, as a part of the rulemaking process, before the commission concerning requests for amendment of the codes, recommended by the division and commission to be adopted by rule. The hearing shall be conducted in accordance with the rules of the commission.
(5) Within 15 days following completion of the hearing under Subsection (4), the commission shall provide to the division a written recommendation concerning each amendment.
(6) The division shall consider the recommendations and promulgate amendments by rule in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act and as prescribed by the director.
(7) The decision of the division to accept or reject the recommendation of the commission shall be made within 15 days after receipt of the recommendation.
(8) All decisions of the division pertaining to adoption of a code edition or amendments to any code, which are contrary to recommendations of the commission, may be overridden by a two-thirds vote of the commission according to a procedure to be established by rule.
(9) (a) Amendments with statewide application:
(i) shall be effective on the January 1 or July 1 following the public hearing or as soon after that date as the requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, are met; or
(ii) may be effective prior to the dates in Subsection (9)(a)(i) if designated by the division and the commission as necessary for the public health, safety, and welfare.
(b) Amendments with local application only shall be effective on a date to be determined by the division and the commission.
(c) In making rules required by this chapter, the division shall comply with the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. The provisions of that chapter shall have control over this section in case of any conflict.
Section 905. Section 58-56-9.3 is amended to read:
58-56-9.3
. Unprofessional conduct.Unprofessional conduct is as defined in Subsection 58-1-501(2) and includes:
(1) knowingly failing to inspect or issue correction notices for code violations which when left uncorrected would constitute a hazard to the public health and safety and knowingly failing to require that correction notices are complied with as a building inspector;
(2) the use of alcohol or the illegal use of drugs while performing duties as a building inspector or at any time to the extent that the inspector is physically or mentally impaired and unable to effectively perform the duties of an inspector;
(3) gross negligence in the performance of official duties as a building inspector;
(4) the personal use of information or knowingly revealing information to unauthorized persons when that information has been obtained by a building inspector as a result of the inspector's employment, work, or position as an inspector;
(5) unlawful acts or practices which are clearly unethical under generally recognized standards of conduct of a building inspector;
(6) engaging in fraud or knowingly misrepresenting a fact relating to the performance of duties and responsibilities as a building inspector;
(7) a building inspector knowingly failing to require that all plans, specifications, drawings, documents, and reports be stamped by architects, professional engineers, or both as established by law;
(8) a building inspector knowingly failing to report to the division an act or omission of a licensee under Title 58, Chapter 55, Utah Construction Trades Licensing Act, which when left uncorrected constitutes a hazard to public health and safety;
(9) a building inspector knowingly failing to report to the division unlicensed practice persons who are required to be licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act;
(10) a building inspector's approval of work which materially varies from approved documents that have been stamped by an architect, professional engineer, or both unless authorized by the licensed architect, professional engineer, or both;
(11) a building inspector failing to produce verification of current licensure and current certifications for the codes adopted under rules of the division upon request of the division, a compliance agency, or a contractor or property owner whose work is being inspected;
(12) nondelivery of goods or services by a registered dealer which constitutes a breach of contract by the dealer;
(13) the failure of a registered dealer to pay a subcontractor or supplier any amounts to which that subcontractor or supplier is legally entitled; and
(14) any other activity which is defined as unprofessional conduct by division rule in accordance with the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 906. Section 58-56-9.5 is amended to read:
58-56-9.5
. Penalty for unlawful conduct -- Citations.(1) A person who violates a provision of Section 58-56-9.1 or who fails to comply with a citation issued under this section after it is final is guilty of a class A misdemeanor.
(2) Grounds for immediate suspension of a licensee's license by the division under this chapter include:
(a) the issuance of a citation for violation of a provision of Section 58-56-9.1; and
(b) failure by a licensee to make application to, report to, or notify the division with respect to a matter for which application, notification, or reporting is required under this chapter or rules made under this chapter by the division.
(3) (a) If upon inspection or investigation, the division concludes that a person has violated a provision of Section 58-56-9.1, or a rule or order issued with respect to that section, and that disciplinary action is appropriate, the director or the director's designee from within the division shall:
(i) promptly issue a citation to the person according to this chapter and any pertinent rules;
(ii) attempt to negotiate a stipulated settlement; or
(iii) notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) (i) A person who violates a provision of Section 58-56-9.1, as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine under this Subsection (3)(b) and may, in addition to or instead of the fine, be ordered by the division to cease from violating the provision.
(ii) Except as otherwise provided in Subsection (2)(a), the division may not assess licensure sanctions referred to in Subsection 58-56-9(1)(c) through a citation.
(c) (i) Each citation shall be in writing and describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated.
(ii) The citation shall clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(iii) The citation shall clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(d) Each citation issued under this section, or a copy of each citation, may be served upon any person upon whom a summons may be served:
(i) in accordance with the Utah Rules of Civil Procedure;
(ii) personally or upon the person's agent by a division investigator or by any person specially designated by the director; or
(iii) by mail.
(e) (i) If within 20 calendar days from the service of a citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review.
(ii) The period to contest a citation may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of a license.
(h) No citation may be issued under this section after the expiration of six months following the occurrence of the violation.
(i) The director or the director's designee may assess fines for violations of Section 58-56-9.1 as follows:
(i) for a first offense determined under this Subsection (3), a fine of up to $1,000;
(ii) for a second offense, a fine of up to $2,000; and
(iii) for any subsequent offense, a fine of up to $2,000 for each day of continued offense.
(j) For the purposes of issuing a final order under this section and assessing a fine under Subsection (3)(i), an offense constitutes a second or subsequent offense if:
(i) the division previously issued a final order determining that a person committed a first or second offense in violation of a provision of Section 58-56-9.1; or
(ii) (A) the division initiated an action for a first or second offense;
(B) no final order has been issued by the division in the action initiated under Subsection (3)(j)(ii)(A);
(C) the division determines during an investigation that occurred after the initiation of the action under Subsection (3)(j)(ii)(A) that the person committed a second or subsequent violation of a provision of Section 58-56-9.1; and
(D) after determining that the person committed a second or subsequent offense under Subsection (3)(j)(ii)(C), the division issues a final order on the action initiated under Subsection (3)(j)(ii)(A).
(k) In issuing a final order for a second or subsequent offense under Subsection (3)(j), the division shall comply with the requirements of this section.
(4) (a) Proceeds from a fine imposed under Subsection (3)(i) shall be deposited in the Commerce Service Fund.
(b) The director may collect an unpaid fine by:
(i) referring the matter to a collection agency; or
(ii) bringing an action in the district court of the county in which the person resides or in the county where the director's office is located.
(c) (i) The state's attorney general or a county attorney shall provide legal assistance and advice to the director in an action brought under Subsection (4)(b).
(ii) Reasonable attorney's fees and costs shall be awarded in an action brought to enforce the provisions of this section.
Section 907. Section 58-56-16 is amended to read:
58-56-16
. Registration of dealers -- Bonding requirements -- Renewal -- Exemptions -- Discipline.(1) Each person engaged in the sale of factory built housing in the state, except as provided in Subsection (4), shall register with the division as a dealer.
(2) Each applicant for registration under this section shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303; and
(c) provide the division with a registration bond in accordance with rules established by the division.
(3) (a) The division shall issue each registration under this section in accordance with a two-year renewal cycle established by rule.
(b) The division may by rule extend or shorten a renewal cycle by as much as one year to stagger the renewal cycles it administers.
(c) Each registration under this section automatically expires on the expiration date on the certificate of registration unless the registrant renews it in accordance with Section 58-1-308.
(4) Subsection (1) does not apply to:
(a) a person not regularly engaged in the sale of factory built housing who is selling a unit he owns for his own account;
(b) a principal broker licensed under Title 61, Chapter 2, Division of Real Estate; or
(c) a sales agent or associate broker licensed under Title 61, Chapter 2, Division of Real Estate, who sells factory built housing as an agent for, and under the supervision, of the licensed principal broker with whom he is affiliated.
(5) Grounds for refusing to issue a registration, for refusing to renew a registration, for revoking, suspending, restricting, or placing on probation a registration, for issuing a public or private reprimand to a registrant, and for issuing a cease and desist order shall be in accordance with Section 58-1-401.
Section 908. Section 58-57-4 is amended to read:
58-57-4
. Qualifications for a license.(1) The division shall issue a respiratory care practitioner license to an applicant who meets the requirements specified in this section.
(2) An applicant seeking licensure as a respiratory care practitioner shall:
(a) submit an application on a form prescribed by the division;
(b) pay a fee as determined by the department pursuant to Section [63-38-3.2] 63J-1-303;
(c) show evidence of good moral character;
(d) possess a high school education or its equivalent, as determined by the division in collaboration with the board;
(e) have completed a respiratory care practitioner educational program that is accredited by a nationally accredited organization acceptable to the division as defined by rule; and
(f) pass an examination approved by the division in collaboration with the board.
Section 909. Section 58-57-14 is amended to read:
58-57-14
. Unlawful conduct -- Penalty.(1) Beginning January 1, 2007, "unlawful conduct" includes:
(a) using the following titles, names, or initials, if the user is not properly licensed under this chapter:
(i) respiratory care practitioner;
(ii) respiratory therapist; and
(iii) respiratory technician; and
(b) using any other name, title, or initials that would cause a reasonable person to believe the user is licensed under this chapter if the user is not properly licensed under this chapter.
(2) Any person who violates the unlawful conduct provision specifically defined in Subsection 58-1-501(1)(a) is guilty of a third degree felony.
(3) Any person who violates any of the unlawful conduct provisions specifically defined in Subsections 58-1-501(1)(b) through (f) and Subsection (1) of this section is guilty of a class A misdemeanor.
(4) After a proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may assess administrative penalties for acts of unprofessional or unlawful conduct or any other appropriate administrative action.
Section 910. Section 58-59-302 is amended to read:
58-59-302
. Registration process.(1) A person engaged in practice as a professional employer organization shall register under this chapter. A person registering or renewing a registration as a professional employer organization shall:
(a) (i) submit an application in a form prescribed by the division; or
(ii) file a certification in accordance with Subsection (2); and
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303.
(2) (a) A person may comply with Subsection (1) by filing with the division:
(i) a certification that an assurance organization certifies the qualifications of the PEO;
(ii) the information required by Subsections 58-59-303.5(1)(a) through (c); and
(iii) any changes to the information required by Subsection (2)(a)(ii) within 30 days of the day on which the information changes.
(b) A PEO that meets the requirements of Subsection (1) by complying with this Subsection (2) is not required:
(i) to renew its registration until the day on which the assurance organization no longer certifies the qualifications of the PEO; and
(ii) to provide the information in Subsections 58-59-303.5(1)(d) through (f).
(c) If a PEO that meets the requirements of Subsection (1) by complying with Subsection (2) receives a new or renewed certification by the assurance organization, the PEO shall file with the division a new certification within 30 days from the day on which the PEO receives the new or renewed certification from the assurance organization.
(d) This Subsection (2) does not modify the division's authority or responsibility to accept, renew, or terminate a registration.
(e) (i) If a PEO authorizes an assurance organization to act on behalf of the PEO for purposes of registration under this Subsection (2), the division shall accept the assurance organization's filing of the information required by Subsection (2)(a)(ii), (2)(a)(iii), or (2)(b) if the information otherwise complies with this Subsection (2) and division rules.
(ii) Notwithstanding Subsection (2)(e)(i), if the assurance organization fails to make a required filing under this Subsection (2), the PEO's registration may be not accepted, not renewed, or terminated.
(3) (a) Any two or more professional employer organizations held under the common control of any other person or persons acting in concert may be registered as a professional employer organization group.
(b) A professional employer organization group may satisfy any reporting and financial requirements under this chapter on a consolidated basis.
(4) An organization engaged in the business of providing professional employer services is subject to registration under this chapter regardless of its use of the term:
(a) "professional employer organization";
(b) "PEO";
(c) "staff leasing company";
(d) "registered staff leasing company";
(e) "employee leasing company"; or
(f) any other name.
Section 911. Section 58-59-302.5 is amended to read:
58-59-302.5
. Assurance organization.(1) The division shall designate one or more assurance organizations by rule:
(a) consistent with this section; and
(b) made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) The division shall require that an assurance organization designated by the division be licensed by one or more states other than Utah to certify the qualifications of a PEO.
(3) The qualifications certified by an assurance organization designated by the division shall include at a minimum that a PEO:
(a) ensure that each controlling person of the PEO:
(i) be competent to manage a PEO;
(ii) be responsible in the controlling person's finances; and
(iii) not have a history of or be engaged in unlawful activities;
(b) have a history that is verifiable that the PEO:
(i) complies with regulatory requirements; and
(ii) engages in financially responsible conduct;
(c) has or is able to obtain audited financial statements;
(d) has an adjusted net worth equal to or in excess of the greater of:
(i) $100,000; or
(ii) 5% of total adjusted liabilities;
(e) has liquid assets that are sufficient to pay short-term liabilities as demonstrated by a ratio determined by dividing current assets by current liabilities or a similar formula;
(f) has on its books adequate financial reserves for all local, state, and federal self-insurance and any insurance policy or plan in which the final cost of coverage is affected by claim losses;
(g) operates in conformity with all applicable laws and regulations including those laws and regulations in addition to this chapter;
(h) does not engage in deceptive trade practices or misrepresentations of an employer's obligation or liability;
(i) has a written professional employer agreement with each client;
(j) has or is willing to obtain a written acknowledgment, as part of an existing form or separately, from each covered employee stating that the covered employee understands and accepts the nature, terms, and conditions of the coemployment relationship;
(k) establishes and maintains a coemployment relationship by assuming key employer attributes with respect to covered employees as demonstrated by the professional employer agreement and employment forms, policies, and procedures;
(l) provides all covered employees with a written copy of the PEO's employment policies and procedures;
(m) ensures that all covered employees are covered in a regulatory compliant manner by workers' compensation insurance;
(n) does not knowingly use the coemployment relationship to assist a client to evade or avoid the client's obligations under:
(i) the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq.;
(ii) the federal Railway Labor Act, 45 U.S.C. Sec. 151 et seq.; or
(iii) any collective bargaining agreement;
(o) except through a licensed insurance agent, does not:
(i) represent or imply that it can sell insurance;
(ii) attempt to sell insurance; or
(iii) sell insurance;
(p) markets and provides, or is willing to market and provide professional employer organization services under a separate and distinct trade name from any affiliated PEO that is not certified by the assurance organization;
(q) does not allow any person not certified by the assurance organization to use the PEO's trade name in the sale or delivery of the PEO's professional employer organization services;
(r) does not guarantee, participate in, transfer between, or otherwise share liabilities with any other PEO that is not certified by the assurance organization:
(i) in the employment of covered employees; or
(ii) in any employee benefit or insurance policy or plan that is not fully insured and fully funded; and
(s) has the ability to provide a regulatory agency or insurance carrier upon request with:
(i) a client's name, address, and tax identification number;
(ii) payroll data by:
(A) client;
(B) (I) client SIC Code of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget; or
(II) client classification under the 2002 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget; and
(C) workers' compensation classification;
(iii) the names of covered employees by:
(A) the worksite of a client; and
(B) workers' compensation classification; and
(iv) workers' compensation certificates of insurance.
Section 912. Section 58-59-303 is amended to read:
58-59-303
. Term of registration -- Expiration -- Renewal.(1) The division shall issue each registration under this chapter in accordance with a one-year renewal cycle established by rule.
(2) The division may by rule, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, extend or shorten a renewal period by as much as six months to stagger the renewal cycles it administers.
Section 913. Section 58-59-308 is amended to read:
58-59-308
. No guarantee.By registering and regulating professional employer organizations under this chapter, the state:
(1) does not guarantee any right, claim, or defense of any professional employer organization, client company, coemployee, or other person;
(2) does not guarantee the financial responsibility or solvency of any professional employer organization; and
(3) does not waive any right, claim, or defense of immunity that it may have under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, or other law.
Section 914. Section 58-60-115 is amended to read:
58-60-115
. License by endorsement.The division shall issue a license by endorsement under this chapter to a person who:
(1) submits an application on a form provided by the division;
(2) pays a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(3) provides documentation of current licensure in good standing in any state, district, or territory of the United States to practice in the profession in which licensure is being sought;
(4) provides documentation of having been actively engaged in the legal practice of his profession, including, but not limited to, mental health therapy, for not less than 4,000 hours during the three years immediately preceding the date of application for licensure in Utah;
(5) has passed the profession specific jurisprudence examination if required of a new applicant; and
(6) is of good moral character and professional standing, and has no disciplinary action pending or in effect against the applicant's license in any jurisdiction.
Section 915. Section 58-60-117 is amended to read:
58-60-117
. Externship licenses.(1) The division shall issue a temporary license under Part 2, 3, or 4 of this chapter to a person who:
(a) submits an application for licensure under Part 2, 3, or 4;
(b) pays a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) holds an earned doctoral degree or master's degree in a discipline that is a prerequisite for practice as a mental health therapist;
(d) has one or more deficiencies in course work, experience, or training;
(e) provides mental health therapy as an employee of a public or private organization, which provides mental health therapy, while under the supervision of a person licensed under this chapter; and
(f) is of good moral character and has no disciplinary action pending or in effect against the applicant in connection with the practice of mental health therapy, in any jurisdiction.
(2) A temporary license issued under this section shall expire upon the earlier of:
(a) issuance of the license applied for; or
(b) three years from the date the temporary license was issued.
(3) The temporary license issued under this section is an externship license.
Section 916. Section 58-60-205 is amended to read:
58-60-205
. Qualifications for licensure or certification as a clinical or certified social worker, certified social worker intern, and social service worker.(1) An applicant for licensure as a clinical social worker shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts from an accredited institution of higher education recognized by the division in collaboration with the board verifying satisfactory completion of an education and earned degree as follows:
(i) an earned master's degree in social work resulting from completion of an education program accredited by the Council on Social Work Education; or
(ii) an earned doctoral degree in social work that results from successful completion of a clinical concentration and practicum approved by the division and defined by rule under Section 58-1-203;
(e) have completed a minimum of 4,000 hours of clinical social work training as defined by division rule under Section 58-1-203 in not less than two years and under the supervision of a clinical social worker supervisor approved by the division in collaboration with the board;
(f) document successful completion of not less than 1,000 hours of supervised training in mental health therapy obtained after completion of the education requirement in Subsection (1)(d), which training may be included as part of the 4,000 hours of training in Subsection (1)(e), and of which documented evidence demonstrates not less than 100 of the hours were obtained under the direct personal face to face supervision of a clinical social worker approved by the division in collaboration with the board;
(g) have completed a case work, group work, or family treatment course sequence with a clinical practicum in content as defined by rule under Section 58-1-203; and
(h) pass the examination requirement established by rule under Section 58-1-203.
(2) An applicant for licensure as a certified social worker shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts from an accredited institution of higher education recognized by the division in collaboration with the Social Worker Licensing Board verifying satisfactory completion of an education and an earned degree as follows:
(i) a social work education program accredited by the Council on Social Work Education and an earned master's degree resulting from completion of that program; or
(ii) an education program that contains approved clinical social work concentration and practicum in content as defined by rule under Section 58-1-203 and an earned doctorate resulting from completion of that program; and
(e) pass the examination requirement established by rule under Section 58-1-203.
(3) (a) An applicant for certification as a certified social worker intern shall meet the requirements of Subsections (2)(a), (b), (c), and (d).
(b) Certification under Subsection (3)(a) is limited to the time necessary to pass the examination required under Subsection (2)(e) or six months, whichever occurs first.
(c) A certified social worker intern may provide mental health therapy under the general supervision of a clinical social worker.
(4) An applicant for licensure as a social service worker shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts from an accredited institution of higher education recognized by the division in collaboration with the Social Worker Licensing Board verifying satisfactory completion of an earned degree resulting from education as follows:
(i) a bachelor's degree in a social work program accredited by the Council on Social Work Education;
(ii) a master's degree in a field approved by the division in collaboration with the social worker board; or
(iii) a bachelor's degree in sociology, psychology, family sciences, or other field approved by the division in collaboration with the Social Worker Licensing Board and also documentation of 2,000 hours of supervised social work activity approved by the division in collaboration with the board, which is performed after completing bachelor's degree requirements under this Subsection (4);
(iv) a bachelor's degree in any field, if the applicant has completed:
(A) the equivalent of three credit hours of course work or other approved training in full-life human growth behavior, abnormal psychology, social work values and ethics, social welfare, or social welfare policy;
(B) an approved social work practice methods course; and
(C) one year of qualifying experience under the supervision of a licensed certified or clinical social worker, which experience is approved by the division in collaboration with the Social Worker Licensing Board, and which is performed after completion of the requirements to obtain the bachelor's degree required under this Subsection (4); or
(v) successful completion of the first academic year of a Council on Social Work Education approved master's of social work curriculum and practicum; and
(e) pass the examination requirement established by rule under Section 58-1-203.
Section 917. Section 58-60-305 is amended to read:
58-60-305
. Qualifications for licensure.(1) All applicants for licensure as marriage and family therapists shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts evidencing completion of a masters or doctorate degree in marriage and family therapy from:
(i) a program accredited by the Commission on Accreditation for Marriage and Family Therapy Education; or
(ii) an accredited institution meeting criteria for approval established by rule under Section 58-1-203;
(e) have completed a minimum of 4,000 hours of marriage and family therapy training as defined by division rule under Section 58-1-203, in not less than two years, under the supervision of a marriage and family therapist supervisor who meets the requirements of Section 58-60-307, and obtained after completion of the education requirement in Subsection (1)(d);
(f) document successful completion of not less than 1,000 hours of supervised training in mental health therapy obtained after completion of the education requirement described in Subsection (1)(d)(i) or (1)(d)(ii), which training may be included as part of the 4,000 hours of training described in Subsection (1)(e), and of which documented evidence demonstrates not less than 100 of the supervised hours were obtained during direct, personal, face-to-face supervision by a marriage and family therapist supervisor qualified under Section 58-60-307; and
(g) pass the examination requirement established by division rule under Section 58-1-203.
(2) (a) All applicants for certification as a marriage and family therapist intern shall comply with the provisions of Subsections (1)(a), (b), (c), and (d).
(b) An individual's certification as a marriage and family therapist intern is limited to the period of time necessary to complete clinical training as described in Subsections (1)(e) and (f) and extends not more than one year from the date the minimum requirement for training is completed, unless the individual presents satisfactory evidence to the division and the appropriate board that the individual is making reasonable progress toward passing of the qualifying examination for that profession or is otherwise on a course reasonably expected to lead to licensure, but the period of time under this Subsection (2)(b) may not exceed two years past the date the minimum supervised clinical training requirement has been completed.
Section 918. Section 58-60-405 is amended to read:
58-60-405
. Qualifications for licensure.(1) All applicants for licensure as a professional counselor shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts from an accredited institution of higher education recognized by the division in collaboration with the board verifying satisfactory completion of:
(i) an education and degree in an education program in counseling with a core curriculum defined by division rule under Section 58-1-203 preparing one to competently engage in mental health therapy; and
(ii) an earned doctoral or master's degree resulting from that education program;
(e) have completed a minimum of 4,000 hours of professional counselor training as defined by division rule under Section 58-1-203, in not less than two years, under the supervision of a professional counselor, psychiatrist, psychologist, clinical social worker, registered psychiatric mental health nurse specialist, or marriage and family therapist supervisor approved by the division in collaboration with the board, and obtained after completion of the education requirement in Subsection (1)(d);
(f) document successful completion of not less than 1,000 hours of supervised training in mental health therapy obtained after completion of the education requirement in Subsection (1)(d), which training may be included as part of the 4,000 hours of training in Subsection (1)(e), and of which documented evidence demonstrates not less than 100 of the hours were obtained under the direct personal face to face supervision of a mental health therapist approved by the division in collaboration with the board; and
(g) pass the examination requirement established by division rule under Section 58-1-203.
(2) (a) All applicants for certification as a professional counselor intern shall comply with the provisions of Subsections (1)(a), (b), (c), and (d).
(b) An individual's certification as a professional counselor intern is limited to the period of time necessary to complete clinical training as described in Subsections (1)(e) and (f) and extends not more than one year from the date the minimum requirement for training is completed, unless the individual presents satisfactory evidence to the division and the appropriate board that the individual is making reasonable progress toward passing of the qualifying examination for that profession or is otherwise on a course reasonably expected to lead to licensure, but the period of time under this Subsection (2)(b) may not exceed two years past the date the minimum supervised clinical training requirement has been completed.
Section 919. Section 58-60-506 is amended to read:
58-60-506
. Qualifications for licensure on and after July 1, 2007.(1) An applicant for licensure under this part on and after July 1, 2007, must meet the following qualifications:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) satisfy the requirements of Subsection (2), (3), (4), or (5) respectively; and
(e) except for licensure as a certified substance abuse counselor intern, satisfy the examination requirement established by rule under Section 58-1-203.
(2) An applicant for licensure as a licensed substance abuse counselor shall meet one of the following:
(a) The applicant shall produce:
(i) certified transcripts from an accredited institution of higher education meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree in behavioral or social sciences;
(ii) documentation of the applicant's completion of a substance abuse education program; and
(iii) documentation of the applicant's completion of 2,000 hours of supervised experience in substance abuse treatment:
(A) meeting standards established by the division in collaboration with the board; and
(B) performed within a two-year period after the applicant's completion of the substance abuse education program described in Subsection (2)(a)(ii).
(b) The applicant shall produce:
(i) certified transcripts from an accredited institution meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree or a high school diploma or equivalent;
(ii) documentation of the applicant's completion of a substance abuse education program; and
(iii) documentation of the applicant's completion of 4,000 hours of supervised experience in substance abuse treatment:
(A) meeting standards established by the division in collaboration with the board; and
(B) performed within a four-year period after the applicant's completion of the substance abuse education program described in Subsection (2)(b)(ii).
(c) Before January 1, 2009, the applicant shall produce:
(i) certified transcripts from an accredited institution of higher education meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree in behavioral or social sciences; and
(ii) documentation of the applicant's completion of 4,000 hours of supervised experience in substance abuse treatment:
(A) meeting standards established by the division in collaboration with the board; and
(B) performed within a four-year period.
(d) Before January 1, 2009, the applicant shall produce:
(i) certified transcripts from an accredited institution meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree or a high school diploma or equivalent; and
(ii) documentation of the applicant's completion of 6,000 hours of supervised experience in substance abuse treatment:
(A) meeting standards established by the division in collaboration with the board; and
(B) performed within a six-year period.
(3) An applicant for licensure as a certified substance abuse counselor shall meet one of the following:
(a) The applicant shall produce:
(i) certified transcripts from an accredited institution of higher education meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree in behavioral or social sciences; and
(ii) documentation of the applicant's completion of a substance abuse education program.
(b) The applicant shall produce:
(i) certified transcripts from an accredited institution meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree or a high school diploma or equivalent; and
(ii) documentation of the applicant's completion of a substance abuse education program.
(c) Before January 1, 2009, the applicant shall produce certified transcripts from an accredited institution of higher education meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree in behavioral or social sciences.
(d) Before January 1, 2009, the applicant shall produce certified transcripts from an accredited institution meeting standards established by the division by rule in collaboration with the board verifying satisfactory completion of a baccalaureate or graduate degree or a high school diploma or equivalent.
(4) (a) An applicant for licensure as a certified substance abuse counselor intern shall meet the requirements for licensure as a certified substance abuse counselor under Subsection (3).
(b) A certified substance abuse counselor intern license expires at the earlier of:
(i) the licensee passing the examination required for licensure as a certified substance abuse counselor; or
(ii) six months after the certified substance abuse counselor intern license is issued.
(5) (a) An applicant for licensure as a certified substance abuse counselor extern shall meet the requirements of Subsection (2)(a)(iii) or (2)(b)(iii).
(b) A certified substance abuse counselor extern license is valid for two years from the day on which it is issued or until January 1, 2010, whichever comes first.
(c) A certified substance abuse counselor extern whose license expires before the licensee completes a substance abuse education program under Subsection (2)(a)(ii) or (2)(b)(ii) may not practice under this part until the licensee meets the requirements of Subsection (2) or (3).
Section 920. Section 58-61-304 is amended to read:
58-61-304
. Qualifications for licensure by examination or endorsement.(1) An applicant for licensure as a psychologist based upon education, clinical training, and examination shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) produce certified transcripts of credit verifying satisfactory completion of a doctoral degree in psychology that includes specific core course work established by division rule under Section 58-1-203, from an institution of higher education whose doctoral program, at the time the applicant received the doctoral degree, met approval criteria established by division rule made in consultation with the board;
(e) have completed a minimum of 4,000 hours of psychology training as defined by division rule under Section 58-1-203 in not less than two years and under the supervision of a psychologist supervisor approved by the division in collaboration with the board;
(f) to be qualified to engage in mental health therapy, document successful completion of not less than 1,000 hours of supervised training in mental health therapy obtained after completion of a master's level of education in psychology, which training may be included as part of the 4,000 hours of training required in Subsection (1)(e), and for which documented evidence demonstrates not less than one hour of supervision for each 40 hours of supervised training was obtained under the direct personal face to face supervision of a psychologist approved by the division in collaboration with the board;
(g) pass the examination requirement established by division rule under Section 58-1-203; and
(h) meet with the board, upon request for good cause, for the purpose of evaluating the applicant's qualifications for licensure.
(2) An applicant for licensure as a psychologist by endorsement based upon licensure in another jurisdiction shall:
(a) submit an application on a form provided by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character and professional standing, and not have any disciplinary action pending or in effect against the applicant's psychologist license in any jurisdiction;
(d) have passed the Utah Psychologist Law and Ethics Examination established by division rule;
(e) provide satisfactory evidence the applicant is currently licensed in another state, district, or territory of the United States, or in any other jurisdiction approved by the division in collaboration with the board;
(f) provide satisfactory evidence the applicant has actively practiced psychology in that jurisdiction for not less than 2,000 hours or one year, whichever is greater;
(g) provide satisfactory evidence that:
(i) the education, supervised experience, examination, and all other requirements for licensure in that jurisdiction at the time the applicant obtained licensure were substantially equivalent to the licensure requirements for a psychologist in Utah at the time the applicant obtained licensure in the other jurisdiction; or
(ii) the applicant is:
(A) a current holder of diplomate status in good standing from the American Board of Professional Psychology;
(B) currently credentialed as a health service provider in psychology by the National Register of Health Service Providers in Psychology; or
(C) currently holds a Certificate of Professional Qualification (CPQ) granted by the Association of State and Provincial Psychology Boards; and
(h) meet with the board, upon request for good cause, for the purpose of evaluating the applicant's qualifications for licensure.
(3) (a) An applicant for certification as a psychology resident shall comply with the provisions of Subsections (1)(a), (b), (c), (d), and (h).
(b) (i) An individual's certification as a psychology resident is limited to the period of time necessary to complete clinical training as described in Subsections (1)(e) and (f) and extends not more than one year from the date the minimum requirement for training is completed, unless the individual presents satisfactory evidence to the division and the Psychologist Licensing Board that the individual is making reasonable progress toward passing the qualifying examination or is otherwise on a course reasonably expected to lead to licensure as a psychologist.
(ii) The period of time under Subsection (3)(b)(i) may not exceed two years past the date the minimum supervised clinical training requirement has been completed.
Section 921. Section 58-63-302 is amended to read:
58-63-302
. Qualifications for licensure.(1) Each applicant for licensure as a contract security company shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) have a qualifying agent who is a resident of the state and an officer, director, partner, proprietor, or manager of the applicant who:
(i) passes an examination component established by rule by the division in collaboration with the board; and
(ii) (A) demonstrates 6,000 hours of experience as a manager, supervisor, or administrator of a contract security company; or
(B) demonstrates 6,000 hours of supervisory experience acceptable to the division in collaboration with the board with a federal, United States military, state, county, or municipal law enforcement agency;
(d) if a corporation, provide:
(i) the names, addresses, dates of birth, and Social Security numbers of all corporate officers, directors, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state; and
(ii) the names, addresses, dates of birth, and Social Security numbers, of all shareholders owning 5% or more of the outstanding shares of the corporation, except this may not be required if the stock is publicly listed and traded;
(e) if a limited liability company, provide:
(i) the names, addresses, dates of birth, and Social Security numbers of all company officers, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state; and
(ii) the names, addresses, dates of birth, and Social Security numbers of all individuals owning 5% or more of the equity of the company;
(f) if a partnership, the names, addresses, dates of birth, and Social Security numbers of all general partners, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state;
(g) if a proprietorship, the names, addresses, dates of birth, and Social Security numbers of the proprietor, and those responsible management personnel employed within the state or having direct responsibility for managing operations of the applicant within the state;
(h) be of good moral character in that officers, directors, shareholders described in Subsection (1)(d)(ii), partners, proprietors, and responsible management personnel have not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of a contract security company is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(i) document that none of the applicant's officers, directors, shareholders described in Subsection (1)(d)(ii), partners, proprietors, and responsible management personnel:
(i) have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored; and
(ii) currently suffer from habitual drunkenness or from drug addiction or dependence;
(j) file and maintain with the division evidence of:
(i) comprehensive general liability insurance in form and in amounts to be established by rule by the division in collaboration with the board;
(ii) workers' compensation insurance that covers employees of the applicant in accordance with applicable Utah law;
(iii) registration with the Division of Corporations and Commercial Code; and
(iv) registration as required by applicable law with the:
(A) Unemployment Insurance Division in the Department of Workforce Services, for purposes of Title 35A, Chapter 4, Employment Security Act;
(B) State Tax Commission; and
(C) Internal Revenue Service; and
(k) meet with the division and board if requested by the division or board.
(2) Each applicant for licensure as an armed private security officer shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of an armed private security officer is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(d) not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(e) not be currently suffering from habitual drunkenness or from drug addiction or dependence;
(f) successfully complete basic education and training requirements established by rule by the division in collaboration with the board;
(g) successfully complete firearms training requirements established by rule by the division in collaboration with the board;
(h) pass the examination requirement established by rule by the division in collaboration with the board; and
(i) meet with the division and board if requested by the division or the board.
(3) Each applicant for licensure as an unarmed private security officer shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of an unarmed private security officer is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;
(d) not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(e) not be currently suffering from habitual drunkenness or from drug addiction or dependence;
(f) successfully complete basic education and training requirements established by rule by the division in collaboration with the board;
(g) pass the examination requirement established by rule by the division in collaboration with the board; and
(h) meet with the division and board if requested by the division or board.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules establishing when Federal Bureau of Investigation records shall be checked for applicants.
(5) To determine if an applicant meets the qualifications of Subsections (1)(h), (2)(c), and (3)(c), the division shall provide an appropriate number of copies of fingerprint cards to the Department of Public Safety with the division’s request to:
(a) conduct a search of records of the Department of Public Safety for criminal history information relating to each applicant for licensure under this chapter and each applicant’s officers, directors, shareholders described in Subsection (1)(d)(ii), partners, proprietors, and responsible management personnel; and
(b) forward to the Federal Bureau of Investigation a fingerprint card of each applicant requiring a check of records of the F.B.I. for criminal history information under this section.
(6) The Department of Public Safety shall send to the division:
(a) a written record of criminal history, or certification of no criminal history record, as contained in the records of the Department of Public Safety in a timely manner after receipt of a fingerprint card from the division and a request for review of Department of Public Safety records; and
(b) the results of the F.B.I. review concerning an applicant in a timely manner after receipt of information from the F.B.I.
(7) (a) The division shall charge each applicant a fee, in accordance with Section [63-38-3.2] 63J-1-303, equal to the cost of performing the records reviews under this section.
(b) The division shall pay the Department of Public Safety the costs of all records reviews, and the Department of Public Safety shall pay the F.B.I. the costs of records reviews under this chapter.
(8) Information obtained by the division from the reviews of criminal history records of the Department of Public Safety and the F.B.I. shall be used or disseminated by the division only for the purpose of determining if an applicant for licensure under this chapter is qualified for licensure.
Section 922. Section 58-63-304 is amended to read:
58-63-304
. Exemptions from licensure.(1) In addition to the exemptions from licensure in Section 58-1-307, the following individuals may engage in acts regulated under this chapter without being licensed under this chapter:
(a) a peace officer employed by or licensed as a contract security company; and
(b) a person employed by a contract security company for the sole purpose of operating or staffing security apparatus, including a magnetometer, magnetometer wand, x-ray viewing device, or other device approved by rule of the division.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules approving security apparatus under Subsection (1)(b).
Section 923. Section 58-63-503 is amended to read:
58-63-503
. Penalties.(1) Unless Subsection (2) applies, an individual who commits an act of unlawful conduct under Section 58-63-501 or who fails to comply with a citation issued under this section after it becomes final is guilty of a class A misdemeanor.
(2) The division may immediately suspend a license issued under this chapter of a person who is given a citation for violating Subsection 58-63-501(1) or (3).
(3) (a) If upon inspection or investigation, the division determines that a person has violated Subsection 58-63-501(1) or (3) or any rule made or order issued under those subsections, and that disciplinary action is warranted, the director or the director's designee within the division shall promptly issue a citation to the person and:
(i) attempt to negotiate a stipulated settlement; or
(ii) notify the person to appear for an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) (i) The division may fine a person who is in violation of Subsection 58-63-501(1) or (3), as evidenced by an uncontested citation, a stipulated settlement, or a finding of a violation in an adjudicative proceeding held under Subsection (3)(a)(ii), or order the person to cease and desist from the violation, or do both.
(ii) Except for a cease and desist order, the division may not impose the licensure sanctions listed in Section 58-63-401 through the issuance of a citation under this section.
(c) The citation shall:
(i) be in writing and describe the nature of the violation, including a reference to the statute, rule, or order alleged to have been violated;
(ii) state the recipient must notify the division in writing within 20 calendar days of issuance of the citation if the recipient wants to contest the citation at the adjudicative proceeding referred to in Subsection (3)(a)(ii); and
(iii) explain the consequences of failure to timely contest the citation or to make payment of any fines assessed under the citation with the time specified in the citation.
(d) (i) A citation issued under this section, or a copy of the citation, may be served upon any person upon whom a summons may be served under the Utah Rules of Civil Procedure.
(ii) The individual may be served personally or service may be made upon the individual's agent, and in either case the service can be made by a division investigator, by a person designated by the director, or by mail.
(e) (i) If within 20 days from the service of a citation the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review.
(ii) The division may grant an extension of the 20-day period for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The division may not issue a citation for an alleged violation under this section after the expiration of six months following the occurrence of the alleged violation.
(h) The director or the director's designee may assess fines under this section as follows:
(i) for a first offense under Subsection (3)(a), a fine of up to $1,000;
(ii) for a second offense under Subsection (3)(a), a fine of up to $2,000; and
(iii) for any subsequent offense under Subsection (3)(a), a fine of up to $2,000 for each day of continued violation.
(i) (i) For purposes of issuing a final order under this section and assessing a fine under Subsection (3)(h), an offense is a second or subsequent offense if:
(A) the division previously issued a final order determining that a person committed a first or second offense in violation of Subsection 58-63-501(1) or (3); or
(B) (I) the division initiated an action for a first or second offense;
(II) no final order has been issued by the division in an action initiated under Subsection (3)(i)(i)(B)(I);
(III) the division determines during an investigation that occurred after the initiation of the action under Subsection (3)(i)(i)(B)(I) that the person committed a second or subsequent violation of Subsection 58-63-501(1) or (3); and
(IV) after determining that the person committed a second or subsequent offense under Subsection (3)(i)(i)(B)(III), the division issues a final order on the action initiated under Subsection (3)(i)(i)(B)(I).
(ii) In issuing a final order for a second or subsequent offense under Subsection (3)(i)(i), the division shall comply with the requirements of this section.
(4) (a) A fine imposed by the director under Subsection (3)(h) shall be deposited in the General Fund as dedicated credits to be used by the division for the purposes listed in Section 58-63-103.
(b) The director may collect a Subsection (3)(h) fine which is not paid by:
(i) referring the matter to the Office of State Debt Collection or a collection agency; or
(ii) bringing an action in the district court of the county in which the person resides or in the county where the office of the director is located.
(c) The director may seek legal assistance from the attorney general or the county or district attorney of the district in which the action is brought to collect the fine.
(d) The court shall award reasonable attorney's fees and costs to the division for successful actions under Subsection (4)(b)(ii).
Section 924. Section 58-64-302 is amended to read:
58-64-302
. Qualifications for licensure.(1) Each applicant for licensure as a deception detection examiner shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime which when considered with the duties and responsibilities of a deception detection examiner is considered by the division and the board to indicate that the best interests of the public will not be served by granting the applicant a license;
(d) not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(e) may not be currently suffering from habitual drunkenness or from drug addiction or dependence;
(f) have completed one of the following:
(i) have earned a bachelor's degree from a four year university or college meeting standards established by the division by rule in collaboration with the board;
(ii) have completed not less than 8,000 hours of investigation experience approved by the division in collaboration with the board; or
(iii) have completed a combination of university or college education and investigation experience, as defined by rule by the division in collaboration with the board as being equivalent to the requirements under Subsection (1)(f)(i) or (1)(f)(ii);
(g) have successfully completed a training program in detection deception meeting criteria established by rule by the division in collaboration with the board; and
(h) have performed satisfactorily as a licensed deception detection intern for a period of not less than one year and shall have satisfactorily conducted not less than 100 deception detection examinations under the direct supervision of a licensed deception detection examiner.
(2) Each applicant for licensure as a deception detection intern shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime which when considered with the duties and responsibilities of a deception detection intern is considered by the division and the board to indicate that the best interests of the public will not be served by granting the applicant a license;
(d) not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease and not been restored;
(e) may not be currently suffering from habitual drunkenness or from drug addiction or dependence;
(f) have completed one of the following:
(i) have earned a bachelor's degree from a four year university or college meeting standards established by the division by rule in collaboration with the board;
(ii) have completed not less than 8,000 hours of investigation experience approved by the division in collaboration with the board; or
(iii) have completed a combination of university or college education and investigation experience, as defined by rule by the division in collaboration with the board as being equivalent to the requirements under Subsection (2)(f)(i) or (2)(f)(ii);
(g) have successfully completed a training program in detection deception meeting criteria established by rule by the division in collaboration with the board; and
(h) provide the division with an intern supervision agreement in a form prescribed by the division under which:
(i) a licensed deception detection examiner agrees to directly supervise the intern; and
(ii) the applicant agrees to be directly supervised by that licensed deception detection examiner.
Section 925. Section 58-67-102 is amended to read:
58-67-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "ACGME" means the Accreditation Council for Graduate Medical Education of the American Medical Association.
(2) "Administrative penalty" means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) "Board" means the Physicians Licensing Board created in Section 58-67-201.
(4) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's body, to determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection (4)(a);
(c) to hold oneself out as making or to represent that one is making an examination or determination as described in Subsection (4)(a); or
(d) to make an examination or determination as described in Subsection (4)(a) upon or from information supplied directly or indirectly by another person, whether or not in the presence of the person making or attempting the diagnosis or examination.
(5) "LCME" means the Liaison Committee on Medical Education of the American Medical Association.
(6) "Medical assistant" means an unlicensed individual working under the direct and immediate supervision of a licensed physician and surgeon and engaged in specific tasks assigned by the licensed physician and surgeon in accordance with the standards and ethics of the profession.
(7) "Physician" means both physicians and surgeons licensed under Section 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under Section 58-68-301, Utah Osteopathic Medical Practice Act.
(8) "Practice of medicine" means:
(a) to diagnose, treat, correct, administer anesthesia, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so, by any means or instrumentality, and by an individual in Utah or outside the state upon or for any human within the state, except that conduct described in this Subsection (8)(a) that is performed by a person legally and in accordance with a license issued under another chapter of this title does not constitute the practice of medicine;
(b) when a person not licensed as a physician directs a licensee under this chapter to withhold or alter the health care services that the licensee has ordered, but practice of medicine does not include any conduct under Subsection 58-67-501(2);
(c) to maintain an office or place of business for the purpose of doing any of the acts described in Subsection (8)(a) whether or not for compensation; or
(d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions in any printed material, stationery, letterhead, envelopes, signs, or advertisements, the designation "doctor," "doctor of medicine," "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," or any combination of these designations in any manner which might cause a reasonable person to believe the individual using the designation is a licensed physician and surgeon, and if the party using the designation is not a licensed physician and surgeon, the designation must additionally contain the description of the branch of the healing arts for which the person has a license.
(9) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be dispensed on prescription only or is restricted to use by practitioners only.
(10) "SPEX" means the Special Purpose Examination of the Federation of State Medical Boards.
(11) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-67-501.
(12) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-67-502, and as may be further defined by division rule.
Section 926. Section 58-67-302 is amended to read:
58-67-302
. Qualifications for licensure.(1) An applicant for licensure as a physician and surgeon, except as set forth in Subsection (2), shall:
(a) submit an application in a form prescribed by the division, which may include:
(i) submissions by the applicant of information maintained by practitioner data banks, as designated by division rule, with respect to the applicant; and
(ii) a record of professional liability claims made against the applicant and settlements paid by or on behalf of the applicant;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having successfully completed a program of professional education preparing an individual as a physician and surgeon, as evidenced by having received an earned degree of doctor of medicine from:
(i) an LCME accredited medical school or college; or
(ii) a medical school or college located outside of the United States or its jurisdictions which at the time of the applicant's graduation, met criteria for LCME accreditation;
(e) hold a current certification by the Educational Commission for Foreign Medical Graduates or any successor organization approved by the division in collaboration with the board, if the applicant graduated from a medical school or college located outside of the United States or its jurisdictions;
(f) satisfy the division and board that the applicant:
(i) has successfully completed 24 months of progressive resident training in a program approved by the ACGME, the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada, or any similar body in the United States or Canada approved by the division in collaboration with the board; or
(ii) (A) has successfully completed 12 months of resident training in an ACGME approved program after receiving a degree of doctor of medicine as required under Subsection (1)(d);
(B) has been accepted in and is successfully participating in progressive resident training in an ACGME approved program within Utah, in the applicant's second or third year of postgraduate training; and
(C) has agreed to surrender to the division his license as a physician and surgeon without any proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and has agreed his license as a physician and surgeon will be automatically revoked by the division if the applicant fails to continue in good standing in an ACGME approved progressive resident training program within the state;
(g) pass the licensing examination sequence required by division rule made in collaboration with the board;
(h) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board if requested by the board;
(i) meet with the board and representatives of the division, if requested, for the purpose of evaluating the applicant's qualifications for licensure;
(j) designate:
(i) a contact person for access to medical records in accordance with the federal Health Insurance Portability and Accountability Act; and
(ii) an alternate contact person for access to medical records, in the event the original contact person is unable or unwilling to serve as the contact person for access to medical records; and
(k) establish a method for notifying patients of the identity and location of the contact person and alternate contact person, if the applicant will practice in a location with no other persons licensed under this chapter.
(2) An applicant for licensure as a physician and surgeon by endorsement shall:
(a) be currently licensed with a full unrestricted license in good standing in any state, district, or territory of the United States;
(b) have been actively engaged in the legal practice of medicine in any state, district, or territory of the United States for not less than 6,000 hours during the five years immediately preceding the date of application for licensure in Utah;
(c) not have any action pending against the applicant's license;
(d) not have a license that was suspended or revoked in any state, unless the license was subsequently reinstated as a full unrestricted license in good standing; and
(e) produce satisfactory evidence of the applicant's qualifications, identity, and good standing to the satisfaction of the division in collaboration with the board.
(3) An applicant for licensure by endorsement may engage in the practice of medicine under a temporary license while the applicant's application for licensure is being processed by the division, provided:
(a) the applicant submits a complete application required for temporary licensure to the division;
(b) the applicant submits a written document to the division from:
(i) a health care facility licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, stating that the applicant is practicing under the invitation of the health care facility; or
(ii) two individuals licensed under this chapter, whose license is in good standing and who practice in the same clinical location, both stating that:
(A) the applicant is practicing under the invitation of the individual; and
(B) the applicant will practice at the same clinical location as the individual;
(c) the applicant submits a signed certification to the division that the applicant meets the requirements of Subsection (2);
(d) the applicant does not engage in the practice of medicine until the division has issued a temporary license;
(e) the temporary license is only issued for and may not be extended beyond the duration of one year from issuance; and
(f) the temporary license expires immediately and prior to the expiration of one year from issuance, upon notification from the division that the applicant's application for licensure by endorsement is denied.
(4) The division shall issue a temporary license under Subsection (3) within 15 business days after the applicant satisfies the requirements of Subsection (3).
Section 927. Section 58-67-402 is amended to read:
58-67-402
. Authority to assess penalty.(1) After proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose administrative penalties of up to $10,000 for acts of unprofessional conduct under this chapter.
(2) Assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
Section 928. Section 58-67-601 is amended to read:
58-67-601
. Mentally incompetent or incapacitated physician.(1) As used in this section:
(a) "Incapacitated person" has the same definition as in Section 75-1-201.
(b) "Mentally ill" has the same definition as in Section 62A-15-602.
(2) If a court of competent jurisdiction determines a physician is an incapacitated person or that he is mentally ill and unable to safely engage in the practice of medicine, the director shall immediately suspend the license of the physician upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the physician, in writing, of the suspension.
(3) (a) If the division and a majority of the board find reasonable cause to believe a physician, who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing medicine with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the physician with a notice of hearing on the sole issue of the capacity of the physician to competently and safely engage in the practice of medicine.
(b) The hearing shall be conducted under Section 58-1-109, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every physician who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting at his own expense to an immediate mental or physical examination when directed in writing by the division and a majority of the board to do so; and
(ii) the admissibility of the reports of the examining physician's testimony or examination, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the physician is mentally ill or incapacitated or otherwise unable to practice medicine with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the physician's patients or the general public.
(c) (i) Failure of a physician to submit to the examination ordered under this section is a ground for the division's immediate suspension of the physician's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the physician and was not related directly to the illness or incapacity of the physician.
(5) (a) A physician whose license is suspended under Subsection (2) or (3) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this subsection shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the physician's patients or the general public.
(6) A physician whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the physician, under procedures established by division rule, regarding any change in the physician's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of medicine; and
(b) he is qualified to have his license to practice under this chapter restored completely or in part.
Section 929. Section 58-68-102 is amended to read:
58-68-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "ACGME" means the Accreditation Council for Graduate Medical Education of the American Medical Association.
(2) "Administrative penalty" means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) "AOA" means the American Osteopathic Association.
(4) "Board" means the Osteopathic Physicians Licensing Board created in Section 58-68-201.
(5) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's body, to determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection (5)(a);
(c) to hold oneself out as making or to represent that one is making an examination or determination as described in Subsection (5)(a); or
(d) to make an examination or determination as described in Subsection (5)(a) upon or from information supplied directly or indirectly by another person, whether or not in the presence of the person making or attempting the diagnosis or examination.
(6) "Medical assistant" means an unlicensed individual working under the direct and immediate supervision of a licensed osteopathic physician and surgeon and engaged in specific tasks assigned by the licensed osteopathic physician and surgeon in accordance with the standards and ethics of the profession.
(7) "Physician" means both physicians and surgeons licensed under Section 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under Section 58-68-301, Utah Osteopathic Medical Practice Act.
(8) "Practice of osteopathic medicine" means:
(a) to diagnose, treat, correct, administer anesthesia, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real or imaginary, or to attempt to do so, by any means or instrumentality, which in whole or in part is based upon emphasis of the importance of the musculoskeletal system and manipulative therapy in the maintenance and restoration of health, by an individual in Utah or outside of the state upon or for any human within the state, except that conduct described in this Subsection (8)(a) that is performed by a person legally and in accordance with a license issued under another chapter of this title does not constitute the practice of medicine;
(b) when a person not licensed as a physician directs a licensee under this chapter to withhold or alter the health care services that the licensee has ordered, but practice of medicine does not include any conduct under Subsection 58-68-501(2);
(c) to maintain an office or place of business for the purpose of doing any of the acts described in Subsection (8)(a) whether or not for compensation; or
(d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions, in any printed material, stationery, letterhead, envelopes, signs, or advertisements, the designation "doctor," "doctor of osteopathic medicine," "osteopathic physician," "osteopathic surgeon," "osteopathic physician and surgeon," "Dr.," "D.O.," or any combination of these designations in any manner which might cause a reasonable person to believe the individual using the designation is a licensed osteopathic physician, and if the party using the designation is not a licensed osteopathic physician, the designation must additionally contain the description of the branch of the healing arts for which the person has a license.
(9) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be dispensed on prescription only or is restricted to use by practitioners only.
(10) "SPEX" means the Special Purpose Examination of the Federation of State Medical Boards.
(11) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-68-501.
(12) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-68-502 and as may be further defined by division rule.
Section 930. Section 58-68-302 is amended to read:
58-68-302
. Qualifications for licensure.(1) An applicant for licensure as an osteopathic physician and surgeon, except as set forth in Subsection (2) or (3), shall:
(a) submit an application in a form prescribed by the division, which may include:
(i) submissions by the applicant of information maintained by practitioner data banks, as designated by division rule, with respect to the applicant; and
(ii) a record of professional liability claims made against the applicant and settlements paid by or on behalf of the applicant;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having successfully completed a program of professional education preparing an individual as an osteopathic physician and surgeon, as evidenced by having received an earned degree of doctor of osteopathic medicine from:
(i) an AOA approved medical school or college; or
(ii) an osteopathic medical school or college located outside of the United States or its jurisdictions which at the time of the applicant's graduation, met criteria for accreditation by the AOA;
(e) hold a current certification by the Educational Commission for Foreign Medical Graduates or any successor organization approved by the division in collaboration with the board, if the applicant graduated from a medical school or college located outside of the United States or its jurisdictions;
(f) satisfy the division and board that the applicant:
(i) has successfully completed 24 months of progressive resident training in an ACGME or AOA approved program after receiving a degree of doctor of osteopathic medicine required under Subsection (1)(d); or
(ii) (A) has successfully completed 12 months of resident training in an ACGME or AOA approved program after receiving a degree of doctor of osteopathic medicine as required under Subsection (1)(d);
(B) has been accepted in and is successfully participating in progressive resident training in an ACGME or AOA approved program within Utah, in the applicant's second or third year of postgraduate training; and
(C) has agreed to surrender to the division his license as an osteopathic physician and surgeon without any proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and has agreed his license as an osteopathic physician and surgeon will be automatically revoked by the division if the applicant fails to continue in good standing in an ACGME or AOA approved progressive resident training program within the state;
(g) pass the licensing examination sequence required by division rule, as made in collaboration with the board;
(h) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board, if requested by the board;
(i) meet with the board and representatives of the division, if requested for the purpose of evaluating the applicant's qualifications for licensure;
(j) designate:
(i) a contact person for access to medical records in accordance with the federal Health Insurance Portability and Accountability Act; and
(ii) an alternate contact person for access to medical records, in the event the original contact person is unable or unwilling to serve as the contact person; and
(k) establish a method for notifying patients of the identity and location of the contact person and alternate contact person, if the applicant will practice in a location with no other persons licensed under this chapter.
(2) An applicant for licensure as an osteopathic physician and surgeon qualifying under the endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in good standing in another jurisdiction as set forth in Section 58-1-302;
(b) (i) document having met all requirements for licensure under Subsection (1) except, if an applicant received licensure in another state or jurisdiction based upon only 12 months residency training after graduation from medical school, the applicant may qualify for licensure in Utah by endorsement only if licensed in the other state prior to July 1, 1996; or
(ii) document having obtained licensure in another state or jurisdiction whose licensure requirements were at the time of obtaining licensure equal to licensure requirements at that time in Utah;
(c) have passed the SPEX examination within 12 months preceding the date of application for licensure in Utah if the date on which the applicant passed qualifying examinations for licensure is greater than five years prior to the date of the application for licensure in Utah, or meet medical specialty certification requirements which may be established by division rule made in collaboration with the board;
(d) have been actively engaged in the practice as an osteopathic physician and surgeon for not less than 6,000 hours during the five years immediately preceding the date of application for licensure in Utah;
(e) meet with the board and representatives of the division, if requested for the purpose of evaluating the applicant's qualifications for licensure; and
(f) not have a license that was suspended or revoked in any state, unless the license was subsequently reinstated as a full unrestricted license in good standing.
(3) An applicant for licensure as an osteopathic physician and surgeon, who has been licensed as an osteopathic physician in Utah, who has allowed his license in Utah to expire for nonpayment of license fees, and who is currently licensed in good standing in another state or jurisdiction of the United States shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) have passed the SPEX examination within 12 months preceding the date of application for licensure in Utah if the date on which the applicant passed qualifying examinations for licensure is greater than five years prior to the date of the application for licensure in Utah;
(e) have been actively engaged in the practice as an osteopathic physician for not fewer than 6,000 hours during the five years immediately preceding the date of application for licensure; and
(f) meet with the board and representatives of the division, if requested for the purpose of evaluating the applicant's qualifications for licensure.
(4) An applicant for licensure by endorsement may engage in the practice of medicine under a temporary license while the applicant's application for licensure is being processed by the division, provided:
(a) the applicant submits a complete application required for temporary licensure to the division;
(b) the applicant submits a written document to the division from:
(i) a health care facility licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, stating that the applicant is practicing under the invitation of the health care facility; or
(ii) two individuals licensed under this chapter, whose license is in good standing and who practice in the same clinical location, both stating that:
(A) the applicant is practicing under the invitation of the individual; and
(B) the applicant will practice at the same clinical location as the individual;
(c) the applicant submits a signed certification to the division that the applicant meets the requirements of Subsection (2);
(d) the applicant does not engage in the practice of medicine until the division has issued a temporary license;
(e) the temporary license is only issued for and may not be extended beyond the duration of one year from issuance; and
(f) the temporary license expires immediately and prior to the expiration of one year from issuance, upon notification from the division that the applicant's application for licensure by endorsement is denied.
(5) The division shall issue a temporary license under Subsection (4) within 15 business days after the applicant satisfies the requirements of Subsection (4).
Section 931. Section 58-68-402 is amended to read:
58-68-402
. Authority to assess penalties.(1) After acting in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose administrative penalties of up to $10,000 for each act of unprofessional conduct under this chapter.
(2) Assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
Section 932. Section 58-68-601 is amended to read:
58-68-601
. Mentally incompetent or incapacitated osteopathic physician.(1) As used in this section:
(a) "Incapacitated person" has the same definition as in Section 75-1-201.
(b) "Mentally ill" has the same definition as in Section 62A-15-602.
(2) If a court of competent jurisdiction determines an osteopathic physician and surgeon is an incapacitated person or that he is mentally ill and unable to safely engage in the practice of medicine, the director shall immediately suspend the license of the osteopathic physician and surgeon upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the osteopathic physician and surgeon, in writing, of the suspension.
(3) (a) If the division and a majority of the board find reasonable cause to believe an osteopathic physician and surgeon, who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing osteopathic medicine with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the osteopathic physician and surgeon with a notice of hearing on the sole issue of the capacity of the osteopathic physician and surgeon to competently and safety engage in the practice of medicine.
(b) The hearing shall be conducted under Section 58-1-109, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every osteopathic physician and surgeon who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting at his own expense to an immediate mental or physical examination when directed in writing by the division and a majority of the board to do so; and
(ii) the admissibility of the reports of the examining physician's testimony or examination, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the osteopathic physician and surgeon is mentally ill or incapacitated or otherwise unable to practice medicine with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the osteopathic physician and surgeon's patients or the general public.
(c) (i) Failure of an osteopathic physician and surgeon to submit to the examination ordered under this section is a ground for the division's immediate suspension of the osteopathic physician and surgeon's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the osteopathic physician and surgeon and was not related directly to the illness or incapacity of the osteopathic physician and surgeon.
(5) (a) An osteopathic physician and surgeon whose license is suspended under Subsection (2) or (3) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this subsection shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the osteopathic physician and surgeon's patients or the general public.
(6) An osteopathic physician and surgeon whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the osteopathic physician and surgeon, under procedures established by division rule, regarding any change in the osteopathic physician and surgeon's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of medicine; and
(b) he is qualified to have his license to practice under this chapter restored completely or in part.
Section 933. Section 58-69-302 is amended to read:
58-69-302
. Qualifications for licensure.(1) An applicant for licensure as a dentist, except as set forth in Subsection (2), shall:
(a) submit an application in a form as prescribed by the division;
(b) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having successfully completed a program of professional education preparing an individual as a dentist as evidenced by having received an earned doctor's degree in dentistry from:
(i) a dental school accredited by the Commission on Dental Accreditation of the American Dental Association; or
(ii) a dental school located outside of the United States or its jurisdictions which, at the time the applicant graduated from the dental school, met standards for accreditation by the Commission on Dental Accreditation of the American Dental Association;
(e) pass the National Board Dental Examinations as administered by the Joint Commission on National Dental Examinations of the American Dental Association;
(f) pass any one of the regional dental clinical licensure examinations unless the division, in collaboration with the board, determines that:
(i) the examination is clearly inferior to the Western Regional Examination Board; and
(ii) reliance upon the examination poses an unjustifiable threat to public health and safety;
(g) pass any other examinations regarding applicable law, rules, or ethics as established by division rule made in collaboration with the board;
(h) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board if requested by the board; and
(i) meet with the board if requested by the board or division for the purpose of examining the applicant's qualifications for licensure.
(2) An applicant for licensure as a dentist qualifying under the endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in good standing in another jurisdiction set forth in Section 58-1-302;
(b) (i) document having met all requirements for licensure under Subsection (1) except, an applicant having received licensure in another state or jurisdiction prior to the year when the National Board Dental Examinations were first administered, shall document having passed a state administered examination acceptable to the division in collaboration with the board; or
(ii) document having obtained licensure in another state or jurisdiction upon which licensure by endorsement is based by meeting requirements which were equal to licensure requirements in Utah at the time the applicant obtained licensure in the other state or jurisdiction; and
(c) document having been successfully engaged in practice as a dentist for not less than 6,000 hours in the five years immediately preceding the date of application for licensure.
(3) An applicant for licensure as a dental hygienist, except as set forth in Subsection (4), shall:
(a) submit an application in a form as prescribed by the division;
(b) pay a fee as determined by the department pursuant to Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) be a graduate holding a certificate or degree in dental hygiene from:
(i) a school accredited by the Commission on Dental Accreditation of the American Dental Association; or
(ii) a dental hygiene school located outside of the United States or its jurisdictions which, at the time the applicant graduated from or received certification from the school, met standards for accreditation by the Commission on Dental Accreditation of the American Dental Association;
(e) pass the National Board Dental Hygiene Examination as administered by the Joint Commission on National Dental Examinations of the American Dental Association;
(f) pass an examination consisting of practical demonstrations in the practice of dental hygiene and written or oral examination in the theory and practice of dental hygiene as established by division rule made in collaboration with the board;
(g) pass any other examinations regarding applicable law, rules, and ethics as established by rule by division rule made in collaboration with the board;
(h) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board if requested by the board; and
(i) meet with the board if requested by the board or division for the purpose of examining the applicant's qualifications for licensure.
(4) An applicant for licensure as a dental hygienist qualifying under the endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in another jurisdiction set forth in Section 58-1-302;
(b) (i) document having met all requirements for licensure under Subsection (3) except, an applicant having received licensure in another state or jurisdiction prior to 1962, the year when the National Board Dental Hygiene Examinations were first administered, shall document having passed a state administered examination acceptable to the division in collaboration with the board; or
(ii) document having obtained licensure in another state or jurisdiction upon which licensure by endorsement is based by meeting requirements which were equal to licensure requirements in Utah at the time the applicant obtained licensure in the other state or jurisdiction; and
(c) document having been successfully engaged in practice as a dental hygienist for not less than 2,000 hours in the two years immediately preceding the date of application for licensure.
Section 934. Section 58-69-601 is amended to read:
58-69-601
. Mentally incompetent or incapacitated dentist or dental hygienist.(1) As used in this section:
(a) "Incapacitated person" has the same definition as in Section 75-1-201.
(b) "Mentally ill" has the same definition as in Section 62A-15-602.
(2) If a court of competent jurisdiction determines a dentist or dental hygienist is an incapacitated person or that he is mentally ill and unable to safely engage in the practice of dentistry or dental hygiene, the director shall immediately suspend the license of the dentist or dental hygienist upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the dentist or dental hygienist, in writing, of the suspension.
(3) (a) If the division and a majority of the board find reasonable cause to believe a dentist or dental hygienist, who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing dentistry or dental hygiene with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the dentist or dental hygienist with a notice of hearing on the sole issue of the capacity of the dentist or dental hygienist to competently and safely engage in the practice of dentistry or dental hygiene.
(b) The hearing shall be conducted under Section 58-1-109 and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every dentist or dental hygienist who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting at his own expense to an immediate mental or physical examination when directed in writing by the division and a majority of the board to do so; and
(ii) the admissibility of the reports of the examining practitioner's testimony or examination, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the dentist or dental hygienist is mentally ill or incapacitated or otherwise unable to practice dentistry or dental hygiene with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the dentist's or dental hygienist's patients or the general public.
(c) (i) Failure of a dentist or dental hygienist to submit to the examination ordered under this section is a ground for the division's immediate suspension of the dentist's or dental hygienist's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the dentist or dental hygienist and was not related directly to the illness or incapacity of the dentist or dental hygienist.
(5) (a) A dentist or dental hygienist whose license is suspended under Subsection (2) or (3) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this subsection shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the dentist's or dental hygienist's patients or the general public.
(6) A dentist or dental hygienist whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the dentist or dental hygienist, under procedures established by division rule, regarding any change in the dentist's or dental hygienist's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of dentistry or dental hygiene; and
(b) he is qualified to have his licensure to practice under this chapter restored completely or in part.
Section 935. Section 58-70a-302 is amended to read:
58-70a-302
. Qualifications for licensure.Each applicant for licensure as a physician assistant shall:
(1) submit an application in a form prescribed by the division;
(2) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character;
(4) have successfully completed a physician assistant program accredited by the Commission on Accreditation of Allied Health Education Programs;
(5) have passed the licensing examinations required by division rule made in collaboration with the board;
(6) meet with the board and representatives of the division, if requested, for the purpose of evaluating the applicant's qualifications for licensure; and
(7) (a) if the applicant desires to practice in Utah, complete a form provided by the division indicating:
(i) the applicant has completed a delegation of services agreement signed by the physician assistant, supervising physician, and substitute supervising physicians; and
(ii) the agreement is on file at the Utah practice sites; or
(b) complete a form provided by the division indicating the applicant is not practicing in Utah and, prior to practicing in Utah, the applicant will meet the requirements of Subsection (7)(a).
Section 936. Section 58-71-102 is amended to read:
58-71-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) "Acupuncture" has the same definition as in Section 58-72-102.
(3) "Board" means the Naturopathic Physicians Licensing Board created in Section 58-71-201.
(4) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's body, to determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection (4)(a);
(c) to hold oneself out as making or to represent that one is making an examination or determination as described in Subsection (4)(a); or
(d) to make an examination or determination as described in Subsection (4)(a) upon or from information supplied directly or indirectly by another person, whether or not in the presence of the person making or attempting the diagnosis or examination.
(5) "Local anesthesia" means an agent, whether a natural medicine or prescription drug, which:
(a) is applied topically or by injection in superficial tissues associated with the performance of minor office procedures;
(b) has the ability to produce loss of sensation at the site of minor office procedures; and
(c) does not cause loss of consciousness or produce general sedation.
(6) "Medical naturopathic assistant" means an unlicensed individual working under the direct and immediate supervision of a licensed naturopathic physician and engaged in specific tasks assigned by the licensed naturopathic physician in accordance with the standards and ethics of the profession.
(7) (a) "Minor office procedures" means:
(i) the use of operative, electrical, or other methods for repair and care of superficial lacerations, abrasions, and benign lesions;
(ii) removal of foreign bodies located in the superficial tissues, excluding the eye or ear; and
(iii) the use of antiseptics and local anesthetics in connection with minor office surgical procedures; and
(b) "Minor office procedures" does not include:
(i) general or spinal anesthesia;
(ii) office procedures more complicated or extensive than those set forth in Subsection (7)(a);
(iii) procedures involving the eye; or
(iv) any office procedure involving tendons, nerves, veins, or arteries.
(8) "Natural medicine" means:
(a) food, food extracts, dietary supplements as defined by the federal Food, Drug, and Cosmetics Act, all homeopathic remedies, and plant substances that are not designated as prescription drugs or controlled substances;
(b) over-the-counter medications;
(c) other nonprescription substances, the prescription or administration of which is not otherwise prohibited or restricted under federal or state law; and
(d) prescription drugs:
(i) that are not controlled substances as defined in Section 58-37-2;
(ii) the prescription of which is consistent with the competent practice of naturopathic medicine; and
(iii) the prescription of which is approved by the division in collaboration with the naturopathic formulary advisory peer committee.
(9) (a) "Naturopathic childbirth" means uncomplicated natural childbirth assisted by a naturopathic physician, and includes the use of:
(i) natural medicines; and
(ii) uncomplicated episiotomy.
(b) "Naturopathic childbirth" does not include the use of:
(i) forceps delivery;
(ii) general or spinal anesthesia;
(iii) caesarean section delivery; or
(iv) induced labor or abortion.
(10) "Naturopathic mobilization therapy":
(a) means manually administering mechanical treatment of body structures or tissues for the purpose of restoring normal physiological function to the body by normalizing and balancing the musculoskeletal system of the body;
(b) does not mean manipulation or adjustment of the joints of the human body beyond the elastic barrier; and
(c) does not include manipulation as defined in Title 58, Chapter 73, Chiropractic Physician Practice Act.
(11) "Naturopathic physical medicine" means the use of the physical agents of air, water, heat, cold, sound, light, and electromagnetic nonionizing radiation, and the physical modalities of electrotherapy, biofeedback, acupuncture, diathermy, ultraviolet light, ultrasound, hydrotherapy, naturopathic mobilization therapy, and exercise. Naturopathic medicine does not include the practice of physical therapy or physical rehabilitation.
(12) "Practice of naturopathic medicine" means:
(a) a system of primary health care for the prevention, diagnosis, and treatment of human health conditions, injuries, and diseases that uses education, natural medicines, and natural therapies, to support and stimulate the patient's intrinsic self-healing processes:
(i) using naturopathic childbirth, but only if:
(A) the licensee meets standards of the American College of Naturopathic Obstetricians (ACNO) or its successor as determined by the division in collaboration with the board; and
(B) the licensee follows a written plan for naturopathic physicians practicing naturopathic childbirth approved by the division in collaboration with the board, which includes entering into an agreement with a consulting physician and surgeon or osteopathic physician, in cases where the scope of practice of naturopathic childbirth may be exceeded and specialty care and delivery is indicated, detailing the guidelines by which the naturopathic physician will:
(I) refer patients to the consulting physician; and
(II) consult with the consulting physician;
(ii) using naturopathic mobilization therapy;
(iii) using naturopathic physical medicine;
(iv) using minor office procedures;
(v) prescribing or administering natural medicine;
(vi) prescribing medical equipment and devices, diagnosing by the use of medical equipment and devices, and administering therapy or treatment by the use of medical devices necessary and consistent with the competent practice of naturopathic medicine;
(vii) prescribing barrier devices for contraception;
(viii) using dietary therapy;
(ix) taking and using diagnostic x-rays, electrocardiograms, ultrasound, and physiological function tests;
(x) taking of body fluids for clinical laboratory tests and using the results of the tests in diagnosis;
(xi) taking of a history from and conducting of a physical examination upon a human patient; and
(xii) prescribing and administering natural medicines and medical devices, except a naturopathic physician may only administer:
(A) a prescription drug, as defined in Section 58-17b-102, in accordance with Subsection (8)(d); and
(B) local anesthesia that is not a controlled substance, and only in the performance of minor office procedures;
(b) to maintain an office or place of business for the purpose of doing any of the acts described in Subsection (12)(a), whether or not for compensation; or
(c) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions, in any printed material, stationery, letterhead, envelopes, signs, or advertisements, the designation "naturopathic physician," "naturopathic doctor," "naturopath," "doctor of naturopathic medicine," "doctor of naturopathy," "naturopathic medical doctor," "naturopathic medicine," "naturopathic health care," "naturopathy," "N.D.," "N.M.D.," or any combination of these designations in any manner that might cause a reasonable person to believe the individual using the designation is a licensed naturopathic physician.
(13) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be dispensed on prescription only or is restricted to use by practitioners only.
(14) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-71-501.
(15) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-71-502, and as may be further defined by division rule.
Section 937. Section 58-71-302 is amended to read:
58-71-302
. Qualifications for licensure.(1) An applicant for licensure as a naturopathic physician, except as set forth in Subsection (2), shall:
(a) submit an application in a form prescribed by the division which may include:
(i) submissions by the applicant of information maintained by practitioner data banks, as designated by division rule, with respect to the applicant; and
(ii) a record of professional liability claims made against the applicant and settlements paid by or in behalf of the applicant;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having successfully completed a program of professional education preparing an individual as a naturopathic physician, as evidenced by having received an earned degree of doctor of naturopathic medicine from:
(i) a naturopathic medical school or college accredited by the Council of Naturopathic Medical Education or its successor organization approved by the division;
(ii) a naturopathic medical school or college that is a candidate for accreditation by the Council of Naturopathic Medical Education or its successor organization, and is approved by the division in collaboration with the board, upon a finding there is reasonable expectation the school or college will be accredited; or
(iii) a naturopathic medical school or college which, at the time of the applicant's graduation, met current criteria for accreditation by the Council of Naturopathic Medical Education or its successor approved by the division;
(e) provide satisfactory documentation of having successfully completed, after successful completion of the education requirements set forth in Subsection (1)(d), 12 months of clinical experience in naturopathic medicine in a residency program recognized by the division and associated with an accredited school or college of naturopathic medicine, and under the preceptorship of a licensed naturopathic physician, physician and surgeon, or osteopathic physician;
(f) pass the licensing examination sequence required by division rule established in collaboration with the board;
(g) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board if requested by the board; and
(h) meet with the board and representatives of the division, if requested, for the purpose of evaluating the applicant's qualifications for licensure.
(2) An applicant for licensure as a naturopathic physician qualifying under the endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in good standing in another jurisdiction as set forth in Section 58-1-302;
(b) document having met all requirements for licensure under Subsection (1) except the clinical experience requirement of Subsection (1)(e);
(c) have passed the examination requirements established under Subsection (1)(f) which:
(i) the applicant has not passed in connection with licensure in another state or jurisdiction; and
(ii) are available to the applicant to take without requiring additional professional education;
(d) have been actively engaged in the practice of a naturopathic physician for not less than 6,000 hours during the five years immediately preceding the date of application for licensure in Utah; and
(e) meet with the board and representatives of the division, if requested for the purpose of evaluating the applicant's qualifications for licensure.
Section 938. Section 58-71-402 is amended to read:
58-71-402
. Authority to assess penalty.(1) After proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, the division may impose administrative penalties of up to $10,000 for acts of unprofessional conduct or unlawful conduct under this chapter.
(2) Assessment of a penalty under this section does not affect any other action the division is authorized to take regarding a license issued under this chapter.
Section 939. Section 58-71-601 is amended to read:
58-71-601
. Mentally incompetent or incapacitated naturopathic physician.(1) As used in this section:
(a) "Incapacitated person" has the same definition as in Section 75-1-201.
(b) "Mentally ill" has the same definition as in Section 62A-15-602.
(2) If a court of competent jurisdiction determines a naturopathic physician is an incapacitated person or that he is mentally ill and unable to safely engage in the practice of medicine, the director shall immediately suspend the license of the naturopathic physician upon the entry of the judgment of the court, without further proceedings under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the court's ruling is pending. The director shall promptly notify the naturopathic physician, in writing, of the suspension.
(3) (a) If the division and a majority of the board find reasonable cause to believe a naturopathic physician, who is not determined judicially to be an incapacitated person or to be mentally ill, is incapable of practicing medicine with reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition, the board shall recommend that the director file a petition with the division, and cause the petition to be served upon the naturopathic physician with a notice of hearing on the sole issue of the capacity of the naturopathic physician to competently and safely engage in the practice of medicine.
(b) The hearing shall be conducted under Section 58-1-109, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, except as provided in Subsection (4).
(4) (a) Every naturopathic physician who accepts the privilege of being licensed under this chapter gives consent to:
(i) submitting at his own expense to an immediate mental or physical examination when directed in writing by the division and a majority of the board to do so; and
(ii) the admissibility of the reports of the examining physician's testimony or examination, and waives all objections on the ground the reports constitute a privileged communication.
(b) The examination may be ordered by the division, with the consent of a majority of the board, only upon a finding of reasonable cause to believe:
(i) the naturopathic physician is mentally ill or incapacitated or otherwise unable to practice medicine with reasonable skill and safety; and
(ii) immediate action by the division and the board is necessary to prevent harm to the naturopathic physician's patients or the general public.
(c) (i) Failure of a naturopathic physician to submit to the examination ordered under this section is a ground for the division's immediate suspension of the naturopathic physician's license by written order of the director.
(ii) The division may enter the order of suspension without further compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to submit to the examination ordered under this section was due to circumstances beyond the control of the naturopathic physician and was not related directly to the illness or incapacity of the naturopathic physician.
(5) (a) A naturopathic physician whose license is suspended under Subsection (2) or (3) has the right to a hearing to appeal the suspension within ten days after the license is suspended.
(b) The hearing held under this subsection shall be conducted in accordance with Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists for the continuance of the order of suspension in order to prevent harm to the naturopathic physician's patients or the general public.
(6) A naturopathic physician whose license is revoked, suspended, or in any way restricted under this section may request the division and the board to consider, at reasonable intervals, evidence presented by the naturopathic physician, under procedures established by division rule, regarding any change in the naturopathic physician's condition, to determine whether:
(a) he is or is not able to safely and competently engage in the practice of medicine; and
(b) he is qualified to have his license to practice under this chapter restored completely or in part.
Section 940. Section 58-72-302 is amended to read:
58-72-302
. Qualification for licensure.Notwithstanding Section 58-1-302, an applicant for licensure as a licensed acupuncturist shall:
(1) submit an application in a form prescribed by the division;
(2) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character;
(4) meet the requirements for current active certification in acupuncture under guidelines established by the National Commission for the Certification of Acupuncture and Oriental Medicine (NCCAOM) as demonstrated through a current certificate or other appropriate documentation;
(5) pass the examination required by the division by rule;
(6) establish procedures, as defined by rule, which shall enable patients to give informed consent to treatment; and
(7) meet with the board, if requested, for the purpose of evaluating the applicant's qualifications for licensure.
Section 941. Section 58-73-302 is amended to read:
58-73-302
. Qualifications for licensure.(1) Each applicant for licensure as a chiropractic physician, other than those applying for a license based on licensure as a chiropractor or chiropractic physician in another jurisdiction, shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) demonstrate satisfactory completion of at least two years of general study in a college or university;
(e) demonstrate having earned a degree of doctor of chiropractic from a chiropractic college or university that at the time the degree was conferred was accredited by the Council on Chiropractic Education, Inc., or an equivalent chiropractic accrediting body recognized by the United States Department of Education and by the division rule made in collaboration with the board;
(f) demonstrate successful completion of:
(i) the National Chiropractic Boards:
(A) Parts I and II;
(B) Written Clinical Competency Examination; and
(C) Physical Therapy;
(ii) the Utah Chiropractic Law and Rules Examination; and
(iii) a practical examination approved by the division in collaboration with the board; and
(g) meet with the board, if requested, for the purpose of reviewing the applicant's qualifications for licensure.
(2) Each applicant for licensure as a chiropractic physician based on licensure as a chiropractor or chiropractic physician in another jurisdiction shall:
(a) submit an application in the form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) demonstrate having obtained licensure as a chiropractor or chiropractic physician in another state under education requirements which were equivalent to the education requirements in this state to obtain a chiropractor or chiropractic physician license at the time the applicant obtained the license in the other state;
(e) demonstrate successful completion of:
(i) the Utah Chiropractic Law and Rules Examination; and
(ii) the Special Purposes Examination for Chiropractic (SPEC) of the National Board of Chiropractic Examiners;
(f) have been actively engaged in the practice of chiropractic for not less than two years immediately preceding application for licensure in this state; and
(g) meet with the board, if requested, for the purpose of reviewing the applicant's qualifications for licensure.
Section 942. Section 58-73-701 is amended to read:
58-73-701
. Persons immune from liability.(1) Employees of the division, members of the board or its committees, and professional consultants serving the division or the board, are not subject to civil damages, when acting under the authority of this chapter for any act or omission performed in good faith within the scope of their functions as an employee of the division or member of the board.
(2) Employees, board members, committee members, and professional consultants are indemnified by the state. The state has full responsibility for providing legal and financial protection for employees, board members, committee members, and consultants to the board or division.
(3) Nothing in this section may be construed to adversely limit any provision of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 943. Section 58-74-302 is amended to read:
58-74-302
. Qualifications for licensure.(1) Each applicant for licensure as a certified court reporter under this chapter shall:
(a) be at least 18 years of age;
(b) be a citizen of the United States;
(c) submit an application in a form prescribed by the division;
(d) pay a fee determined by the department under Subsection [63-38-3] 63J-1-301(2);
(e) possess a high degree of skill and ability in the art of court reporting;
(f) produce satisfactory evidence of good moral character; and
(g) submit evidence that they have completed and passed the Registered Professional Reporter Examination of the National Court Reporters Association or the Certified Verbatim Reporter Examination of the National Verbatim Reporters Association.
(2) Any person granted a certificate to practice as a certified shorthand reporter may use the abbreviation "C.S.R." as long as the person's certificate is current and valid.
(3) Any person granted a certificate to practice as a certified voice reporter may use the abbreviation "C.V.R." as long as the person's certificate is current and valid.
Section 944. Section 58-75-102 is amended to read:
58-75-102
. Definitions.In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Board" means the Genetic Counselors Licensing Board created in Section 58-75-201.
(2) "Genetic counselor" means a person licensed under this chapter to engage in the practice of genetic counseling.
(3) "Practice of genetic counseling" means the communication process which deals with the human problems associated with the occurrence, or the risk of occurrence, of a genetic disorder in a family, including the provision of services to help an individual or family:
(a) comprehend the medical facts, including the diagnosis, probable cause of the disorder, and the available management;
(b) appreciate the way heredity contributes to the disorder and the risk of occurrence in specified relatives;
(c) understand the alternatives for dealing with the risk of occurrence;
(d) choose the course of action which seems appropriate to them in view of their risk, their family goals, and their ethical and religious standards, and to act in accordance with that decision; and
(e) make the best possible psychosocial adjustment to the disorder in an affected family member or to the risk of occurrence of that disorder.
(4) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-75-501.
(5) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-75-502 and as may be further defined by rule by the division in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 945. Section 58-75-302 is amended to read:
58-75-302
. Qualifications for licensure -- Temporary license.(1) Except as provided in Subsection (2), each applicant for licensure as a genetic counselor under this chapter shall:
(a) submit an application in a form prescribed by the division;
(b) pay a fee determined by the department under Section [63-38-3.2] 63J-1-303;
(c) be of good moral character;
(d) provide satisfactory documentation of having earned:
(i) a master's degree from a genetic counseling training program that is accredited by the American Board of Genetic Counseling or an equivalent as determined by the division; or
(ii) a doctoral degree from a medical genetics training program that is accredited by the American Board of Medical Genetics or an equivalent as determined by the division; and
(e) meet the examination requirement for certification as:
(i) a genetic counselor by the American Board of Genetic Counseling or the American Board of Medical Genetics; or
(ii) a medical geneticist by the American Board of Medical Genetics.
(2) The division may issue a temporary license, in accordance with Section 58-1-303 and any other conditions established by rule, to an applicant who meets all of the requirements for licensure except the examination requirement of Subsection (1)(e).
Section 946. Section 58-76-103 is amended to read:
58-76-103
. Education and enforcement fund.(1) There is created within the General Fund a restricted account known as the "Professional Geologist Education and Enforcement Fund."
(2) The account shall be nonlapsing and consist of monies from:
(a) a surcharge fee established by the department in accordance with Section [63-38-3.2] 63J-1-303, placed on initial, renewal, and reinstatement licensure fees under this chapter not to exceed 50% of the respective initial, renewal, or reinstatement licensure fee;
(b) administrative penalties collected pursuant to this chapter; and
(c) interest earned on monies in the account.
(3) Monies in the account may be appropriated by the Legislature for the following purposes:
(a) education and training of licensees under this chapter;
(b) education and training of the public or other interested persons in matters concerning geology laws and practices;
(c) enforcement of this chapter by:
(i) investigating unprofessional or unlawful conduct;
(ii) providing legal representation to the division when legal action is taken against a person engaging in unprofessional or unlawful conduct; and
(iii) monitoring compliance of renewal requirements; and
(d) education and training of board members.
Section 947. Section 58-76-302 is amended to read:
58-76-302
. Qualifications for licensure.Each applicant for licensure as a professional geologist shall:
(1) submit an application in a form as prescribed by the division;
(2) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character;
(4) provide satisfactory evidence of:
(a) a bachelors or graduate degree in the geosciences granted through an institution of higher education that is accredited by a regional or national accrediting agency with a minimum of 30 semester or 45 quarter hours of course work in the geosciences; or
(b) completion of other equivalent educational requirements as determined by the division in collaboration with the board;
(5) provide satisfactory evidence of:
(a) with a bachelors degree, a specific record of five years of active professional practice in geological work of a character satisfactory to the division, indicating the applicant is competent to be placed in a responsible charge of the work;
(b) with a masters degree, a specific record of three years of active professional practice in geological work of a character satisfactory to the division, indicating the applicant is competent to be placed in a responsible charge of the work; or
(c) with a doctorate degree, a specific record of one year of active professional practice in geological work of a character satisfactory to the division, indicating the applicant is competent to be placed in a responsible charge of the work; and
(6) after January 1, 2004, meet the examination requirement established by rule by the division in collaboration with the board.
Section 948. Section 58-76-502 is amended to read:
58-76-502
. Penalty for unlawful conduct.(1) (a) If, upon inspection or investigation, the division concludes that a person has violated Section 58-76-501 or any rule or order issued with respect to Section 58-76-501, and that disciplinary action is appropriate, the director or his or her designee from within the division shall promptly issue a citation to the person according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative proceeding conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(i) A person who violates Subsections 58-1-501(1)(a) through (d) or Section 58-76-501 or any rule or order issued with respect to Section 58-76-501, as evidenced by an uncontested citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this Subsection (1) and may, in addition to or in lieu of, be ordered to cease and desist from violating Subsections 58-1-501(1)(a) through (d) or Section 58-76-501 or any rule or order issued with respect to this section.
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-76-401 may not be assessed through a citation.
(b) A citation shall:
(i) be in writing;
(ii) describe with particularity the nature of the violation, including a reference to the provision of the chapter, rule, or order alleged to have been violated;
(iii) clearly state that the recipient must notify the division in writing within 20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing conducted under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(iv) clearly explain the consequences of failure to timely contest the citation or to make payment of any fines assessed by the citation within the time specified in the citation.
(c) The division may issue a notice in lieu of a citation.
(d) Each citation issued under this section, or a copy of each citation, may be served upon any person upon whom a summons may be served in accordance with the Utah Rules of Civil Procedure and may be made personally or upon his agent by a division investigator or by any person specially designated by the director or by mail.
(e) If within 20 calendar days from the service of the citation, the person to whom the citation was issued fails to request a hearing to contest the citation, the citation becomes the final order of the division and is not subject to further agency review. The period to contest a citation may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes final is a ground for denial of license.
(h) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(i) The director or his designee shall assess fines according to the following:
(i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000; and
(iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to $2,000 for each day of continued offense.
(2) An action initiated for a first or second offense which has not yet resulted in a final order of the division shall not preclude initiation of any subsequent action for a second or subsequent offense during the pendency of any preceding action. The final order on a subsequent action shall be considered a second or subsequent offense, respectively, provided the preceding action resulted in a first or second offense, respectively.
(3) Any penalty which is not paid may be collected by the director by either referring the matter to a collection agency or bringing an action in the district court of the county in which the person against whom the penalty is imposed resides or in the county where the office of the director is located. Any county attorney or the attorney general of the state shall provide legal assistance and advice to the director in any action to collect the penalty. In any action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded to the division.
Section 949. Section 58-77-302 is amended to read:
58-77-302
. Qualifications for licensure.Each applicant for licensure as a licensed Direct-entry midwife shall:
(1) submit an application in a form prescribed by the division;
(2) pay a fee as determined by the department under Section [63-38-3.2] 63J-1-303;
(3) be of good moral character;
(4) hold a Certified Professional Midwife certificate in good standing with the North American Registry of Midwives or equivalent certification approved by the division in collaboration with the board;
(5) hold current adult and infant CPR and newborn resuscitation certifications through an organization approved by the division in collaboration with the board; and
(6) provide documentation of successful completion of an approved pharmacology course as defined by division rule.
Section 950. Section 59-1-210 (Superseded 01/01/08) is amended to read:
59-1-210 (Superseded 01/01/08)
. General powers and duties.The powers and duties of the commission are as follows:
(1) to sue and be sued in its own name;
(2) to adopt rules and policies consistent with the Constitution and laws of this state to govern the commission, executive director, division directors, and commission employees in the performance of their duties;
(3) to adopt rules and policies consistent with the Constitution and laws of the state, to govern county boards and officers in the performance of any duty relating to assessment, equalization, and collection of taxes;
(4) to prescribe the use of forms relating to the assessment of property for state or local taxation, the equalization of those assessments, the reporting of property or income for state or local taxation purposes, or for the computation of those taxes and the reporting of any information, statistics, or data required by the commission;
(5) to administer and supervise the tax laws of the state;
(6) to prepare and maintain from year to year a complete record of all lands subject to taxation in this state, and all machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims;
(7) to exercise general supervision over assessors and county boards of equalization including the authority to enforce Section 59-2-303.1, and over other county officers in the performance of their duties relating to the assessment of property and collection of taxes, so that all assessments of property are just and equal, according to fair market value, and that the tax burden is distributed without favor or discrimination;
(8) to reconvene any county board of equalization which, when reconvened, may only address business approved by the commission and extend the time for which any county board of equalization may sit for the equalization of assessments;
(9) to confer with, advise, and direct county treasurers, assessors, and other county officers in matters relating to the assessment and equalization of property for taxation and the collection of taxes;
(10) to provide for and hold annually at such time and place as may be convenient a district or state convention of county assessors, auditors, and other county officers to consider and discuss matters relative to taxation, uniformity of valuation, and changes in the law relative to taxation and methods of assessment, to which county assessors and other officers called to attend shall attend at county expense;
(11) to direct proceedings, actions, and prosecutions to enforce the laws relating to the penalties, liabilities, and punishments of public officers, persons, and officers or agents of corporations for failure or neglect to comply with the statutes governing the reporting, assessment, and taxation of property;
(12) to cause complaints to be made in the proper court seeking removal from office of assessors, auditors, members of county boards, and other assessing, taxing, or disbursing officers, who are guilty of official misconduct or neglect of duty;
(13) to require county attorneys to immediately institute and prosecute actions and proceedings in respect to penalties, forfeitures, removals, and punishments for violations of the laws relating to the assessment and taxation of property in their respective counties;
(14) to require any person to furnish any information required by the commission to ascertain the value and the relative burden borne by all kinds of property in the state, and to require from all state and local officers any information necessary for the proper discharge of the duties of the commission;
(15) to examine all records relating to the valuation of property of any person;
(16) to subpoena witnesses to appear and give testimony and produce records relating to any matter before the commission;
(17) to cause depositions of witnesses to be taken as in civil actions at the request of the commission or any party to any matter or proceeding before the commission;
(18) to authorize any member or employee of the commission to administer oaths and affirmations in any matter or proceeding relating to the exercise of the powers and duties of the commission;
(19) to visit periodically each county of the state, to investigate and direct the work and methods of local assessors and other officials in the assessment, equalization, and taxation of property, and to ascertain whether the law requiring the assessment of all property not exempt from taxation, and the collection of taxes, have been properly administered and enforced;
(20) to carefully examine all cases where evasion or violation of the laws for assessment and taxation of property is alleged, to ascertain whether existing laws are defective or improperly administered;
(21) to furnish to the governor from time to time such assistance and information as the governor requires;
(22) to transmit to the governor and to each member of the Legislature recommendations as to legislation which will correct or eliminate defects in the operation of the tax laws and will equalize the burden of taxation within the state;
(23) to correct any error in any assessment made by it at any time before the tax is due and report the correction to the county auditor, who shall enter the corrected assessment upon the assessment roll;
(24) to compile and publish statistics relating to taxation in the state and prepare and submit an annual budget to the governor for inclusion in the state budget to be submitted to the Legislature;
(25) to perform any further duties imposed by law, and exercise all powers necessary in the performance of its duties;
(26) to adopt a schedule of fees assessed for services provided by the commission, unless otherwise provided by statute. The fee shall be reasonable and fair, and shall reflect the cost of services provided. Each fee established in this manner shall be submitted to and approved by the Legislature as part of the commission's annual appropriations request. The commission may not charge or collect any fee proposed in this manner without approval by the Legislature; and
(27) to comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 951. Section 59-1-210 (Effective 01/01/08) is amended to read:
59-1-210 (Effective 01/01/08)
. General powers and duties.The powers and duties of the commission are as follows:
(1) to sue and be sued in its own name;
(2) to adopt rules and policies consistent with the Constitution and laws of this state to govern the commission, executive director, division directors, and commission employees in the performance of their duties;
(3) to adopt rules and policies consistent with the Constitution and laws of the state, to govern county boards and officers in the performance of any duty relating to assessment, equalization, and collection of taxes;
(4) to prescribe the use of forms relating to the assessment of property for state or local taxation, the equalization of those assessments, the reporting of property or income for state or local taxation purposes, or for the computation of those taxes and the reporting of any information, statistics, or data required by the commission;
(5) to administer and supervise the tax laws of the state;
(6) to prepare and maintain from year to year a complete record of all lands subject to taxation in this state, and all machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims;
(7) to exercise general supervision over assessors and county boards of equalization including the authority to enforce Section 59-2-303.1, and over other county officers in the performance of their duties relating to the assessment of property and collection of taxes, so that all assessments of property are just and equal, according to fair market value, and that the tax burden is distributed without favor or discrimination;
(8) to reconvene any county board of equalization which, when reconvened, may only address business approved by the commission and extend the time for which any county board of equalization may sit for the equalization of assessments;
(9) to confer with, advise, and direct county treasurers, assessors, and other county officers in matters relating to the assessment and equalization of property for taxation and the collection of taxes;
(10) to provide for and hold annually at such time and place as may be convenient a district or state convention of county assessors, auditors, and other county officers to consider and discuss matters relative to taxation, uniformity of valuation, and changes in the law relative to taxation and methods of assessment, to which county assessors and other officers called to attend shall attend at county expense;
(11) to direct proceedings, actions, and prosecutions to enforce the laws relating to the penalties, liabilities, and punishments of public officers, persons, and officers or agents of corporations for failure or neglect to comply with the statutes governing the reporting, assessment, and taxation of property;
(12) to cause complaints to be made in the proper court seeking removal from office of assessors, auditors, members of county boards, and other assessing, taxing, or disbursing officers, who are guilty of official misconduct or neglect of duty;
(13) to require county attorneys to immediately institute and prosecute actions and proceedings in respect to penalties, forfeitures, removals, and punishments for violations of the laws relating to the assessment and taxation of property in their respective counties;
(14) to require any person to furnish any information required by the commission to ascertain the value and the relative burden borne by all kinds of property in the state, and to require from all state and local officers any information necessary for the proper discharge of the duties of the commission;
(15) to examine all records relating to the valuation of property of any person;
(16) to subpoena witnesses to appear and give testimony and produce records relating to any matter before the commission;
(17) to cause depositions of witnesses to be taken as in civil actions at the request of the commission or any party to any matter or proceeding before the commission;
(18) to authorize any member or employee of the commission to administer oaths and affirmations in any matter or proceeding relating to the exercise of the powers and duties of the commission;
(19) to visit periodically each county of the state, to investigate and direct the work and methods of local assessors and other officials in the assessment, equalization, and taxation of property, and to ascertain whether the law requiring the assessment of all property not exempt from taxation, and the collection of taxes, have been properly administered and enforced;
(20) to carefully examine all cases where evasion or violation of the laws for assessment and taxation of property is alleged, to ascertain whether existing laws are defective or improperly administered;
(21) to furnish to the governor from time to time such assistance and information as the governor requires;
(22) to transmit to the governor and to each member of the Legislature recommendations as to legislation which will correct or eliminate defects in the operation of the tax laws and will equalize the burden of taxation within the state;
(23) to correct any error in any assessment made by it at any time before the tax is due and report the correction to the county auditor, who shall enter the corrected assessment upon the assessment roll;
(24) to compile and publish statistics relating to taxation in the state and prepare and submit an annual budget to the governor for inclusion in the state budget to be submitted to the Legislature;
(25) to perform any further duties imposed by law, and exercise all powers necessary in the performance of its duties;
(26) to adopt a schedule of fees assessed for services provided by the commission, unless otherwise provided by statute. The fee shall be reasonable and fair, and shall reflect the cost of services provided. Each fee established in this manner shall be submitted to and approved by the Legislature as part of the commission's annual appropriations request. The commission may not charge or collect any fee proposed in this manner without approval by the Legislature;
(27) to comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings; and
(28) to provide data to the executive director of the Department of Health for purposes of the distributions required by Section 26-9-4.
Section 952. Section 59-1-302 is amended to read:
59-1-302
. Penalty for nonpayment of certain taxes -- Jeopardy proceedings.(1) This section applies to the following:
(a) a tax under Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act;
(b) a tax under Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act;
(c) a tax under Chapter 10, Part 4, Withholding of Tax;
(d) (i) except as provided in Subsection (1)(d)(ii), a tax under Chapter 12, Sales and Use Tax Act; and
(ii) notwithstanding Subsection (1)(d)(i), this section does not apply to Chapter 12, Part 9, Sales Tax Refund for Qualified Emergency Food Agencies;
(e) a tax under Chapter 13, Part 2, Motor Fuel;
(f) a tax under Chapter 13, Part 3, Special Fuel; and
(g) a tax under Chapter 13, Part 4, Aviation Fuel.
(2) Any person required to collect, truthfully account for, and pay over any tax listed in Subsection (1) who willfully fails to collect the tax, fails to truthfully account for and pay over the tax, or attempts in any manner to evade or defeat any tax or the payment of the tax, shall be liable for a penalty equal to the total amount of the tax evaded, not collected, not accounted for, or not paid over. This penalty is in addition to other penalties provided by law.
(3) (a) If the commission determines in accordance with Subsection (2) that a person is liable for the penalty, the commission shall notify the taxpayer of the proposed penalty.
(b) The notice of proposed penalty shall:
(i) set forth the basis of the assessment; and
(ii) be mailed by certified mail to the person's last-known address.
(4) Upon receipt of the notice of proposed penalty, the person against whom the penalty is proposed may:
(a) pay the amount of the proposed penalty at the place and time stated in the notice; or
(b) proceed in accordance with the review procedures of Subsection (5).
(5) Any person against whom a penalty has been proposed in accordance with Subsections (2) and (3) may contest the proposed penalty by filing a petition for an adjudicative proceeding with the commission.
(6) If the commission determines that the collection of the penalty is in jeopardy, nothing in this section may prevent the immediate collection of the penalty in accordance with the procedures and requirements for emergency proceedings in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(7) (a) In any hearing before the commission and in any judicial review of the hearing, the commission and the court shall consider any inference and evidence that a person has willfully failed to collect, truthfully account for, or pay over any tax listed in Subsection (1).
(b) It is prima facie evidence that a person has willfully failed to collect, truthfully account for, or pay over any of the taxes listed in Subsection (1) if the commission or a court finds that the person charged with the responsibility of collecting, accounting for, or paying over the taxes:
(i) made a voluntary, conscious, and intentional decision to prefer other creditors over the state government or utilize the tax money for personal purposes;
(ii) recklessly disregarded obvious or known risks, which resulted in the failure to collect, account for, or pay over the tax; or
(iii) failed to investigate or to correct mismanagement, having notice that the tax was not or is not being collected, accounted for, or paid over as provided by law.
(c) The commission or court need not find a bad motive or specific intent to defraud the government or deprive it of revenue to establish willfulness under this section.
(d) (i) If the commission determines that a person is liable for the penalty under Subsection (2), the commission shall assess the penalty and give notice and demand for payment.
(ii) The notice and demand for payment described in Subsection (7)(d)(i) shall be mailed by certified mail to the person's last-known address.
Section 953. Section 59-1-304 is amended to read:
59-1-304
. Definition -- Limitations on maintaining a class action that relates to a tax or fee -- Requirements for a person to be included as a member of a class in a class action -- Rulemaking authority -- Commission report to Revenue and Taxation Interim Committee -- Limitations on recovery by members of a class -- Severability.(1) As used in this section, "tax or fee" means a tax or fee administered by the commission.
(2) A class action that relates to a tax or fee may not be maintained in any court if a claim sought by a representative party seeking to maintain the class action arises as a result of:
(a) a person collecting a tax or fee from the representative party if the representative party is not required by law to pay the tax or fee; or
(b) any of the following that requires a change in the manner in which a tax or fee is required to be collected or paid:
(i) an administrative rule made by the commission;
(ii) a private letter ruling issued by the commission; or
(iii) a decision issued by:
(A) the commission; or
(B) a court of competent jurisdiction.
(3) (a) A person may be included as a member of a class in a class action relating to a tax or fee only if the person:
(i) exhausts all administrative remedies with the commission; and
(ii) requests in writing to be included as a member of the class.
(b) (i) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules to simplify and expedite the administrative remedies a person shall exhaust as required by Subsection (3)(a).
(ii) The rules required by Subsection (3)(b)(i) may include rules providing for:
(A) expedited filing procedures and forms;
(B) consolidation of hearings procedures as may be reasonably needed to accommodate potential inclusion of similarly situated persons; and
(C) the designation of test or sample cases to avoid multiple hearings.
(iii) The commission shall report to the Revenue and Taxation Interim Committee on the status of the rules required by this Subsection (3)(b) on or before the October 2004 interim meeting.
(4) Subject to Subsection (5), in a class action brought under this section against the state or its political subdivisions in which members of the class are awarded a refund or credit of a tax or fee by a court of competent jurisdiction, the total amount that may be recovered by members of the class may not exceed the difference between:
(a) the sum of:
(i) the amount of the refund or credit awarded to members of the class; and
(ii) interest as provided in Section 59-1-402; and
(b) if awarded in accordance with Subsection (5), the sum of:
(i) reasonable costs; and
(ii) reasonable attorneys' fees.
(5) (a) For purposes of Subsection (4), at the discretion of the court, the court may award:
(i) reasonable costs as determined by the court; and
(ii) reasonable attorneys' fees determined under Subsection (5)(b).
(b) Reasonable attorneys' fees awarded in a class action may not exceed a reasonable hourly rate for work actually performed:
(i) as determined by the court; and
(ii) taking into account all facts and circumstances that the court considers reasonable.
(6) If any provision of this section, or the application of any provision of this section to any person or circumstance is held unconstitutional or invalid by a court of competent jurisdiction, the remainder of the section shall be given effect without the invalid provision or application.
Section 954. Section 59-1-305 is amended to read:
59-1-305
. Convenience fee to cover the costs of electronic payments.(1) As used in this section:
(a) "Electronic payment" has the same meaning as defined in Section 41-1a-1221.
(b) "Electronic payment fee" has the same meaning as defined in Section 41-1a-1221.
(2) The commission may collect a convenience electronic payment fee established in accordance with the procedures and requirements of Section [63-38-3.2] 63J-1-303 to cover the costs of electronic payments of taxes and fees administered by the commission.
(3) Notwithstanding any other provisions of this title, the commission shall use a fee imposed under this section as a dedicated credit to cover the costs of electronic payments.
Section 955. Section 59-1-401 is amended to read:
59-1-401
. Definitions -- Offenses and penalties -- Rulemaking authority -- Statute of limitations -- Commission authority to waive, reduce, or compromise penalty or interest.(1) As used in this section:
(a) (i) "Nonqualifying obligation" means a charge, fee, payment, or tax administered by the commission.
(ii) "Nonqualifying obligation" does not include:
(A) beginning on the phase I activation date, a phase I obligation; or
(B) beginning on the phase II activation date, a phase II obligation.
(b) "Phase I activation date" means the earlier of:
(i) the day on which the commission's GenTax system is activated to administer all phase I obligations; or
(ii) May 1, 2008.
(c) "Phase I obligation" means:
(i) a fee under Section 19-6-808;
(ii) a tax under Chapter 10, Part 1, Determination and Reporting of Tax Liability and Information;
(iii) a tax under Chapter 10, Part 2, Trusts and Estates;
(iv) a tax under Chapter 10, Part 12, Single Rate Individual Income Tax Act; or
(v) a tax under Chapter 12, Sales and Use Tax Act.
(d) "Phase II activation date" means the earlier of:
(i) the day on which the commission's GenTax system is activated to administer all phase II obligations; or
(ii) May 4, 2009.
(e) (i) "Phase II obligation" means:
(A) a payment under Chapter 6, Mineral Production Tax Withholding;
(B) a tax under Chapter 7, Corporate Franchise and Income Taxes;
(C) a payment under Chapter 10, Part 4, Withholding of Tax; or
(D) a tax paid on a return filed in accordance with Section 59-10-507.
(ii) "Phase II obligation" does not include a payment of estimated tax under Section 59-7-504.
(2) (a) The due date for filing a return is:
(i) if the person filing the return is not allowed by law an extension of time for filing the return, the day on which the return is due as provided by law; or
(ii) if the person filing the return is allowed by law an extension of time for filing the return, the last day of that extension of time.
(b) (i) A penalty in the amount described in Subsection (2)(b)(ii) is imposed if:
(A) a person is required to file a return with respect to a nonqualifying obligation; and
(B) the person described in Subsection (2)(b)(i)(A) files the return after the due date described in Subsection (2)(a).
(ii) For purposes of Subsection (2)(b)(i), the penalty is an amount equal to the greater of:
(A) $20; or
(B) 10% of the unpaid nonqualifying obligation due on the return.
(c) (i) A penalty in the amount described in Subsection (2)(c)(ii) is imposed if a person:
(A) (I) is required to file a return:
(Aa) on or after the phase I activation date; and
(Bb) with respect to a phase I obligation; and
(II) files the return after the due date described in Subsection (2)(a); or
(B) (I) is required to file a return:
(Aa) on or after the phase II activation date; and
(Bb) with respect to a phase II obligation; and
(II) files the return after the due date described in Subsection (2)(a).
(ii) For purposes of Subsection (2)(c)(i), the penalty is an amount equal to the greater of:
(A) $20; or
(B) (I) 2% of the unpaid phase I obligation or phase II obligation due on the return if the return is filed no later than five days after the due date described in Subsection (2)(a);
(II) 5% of the unpaid phase I obligation or phase II obligation due on the return if the return is filed more than five days after the due date but no later than 15 days after the due date described in Subsection (2)(a); or
(III) 10% of the unpaid phase I obligation or phase II obligation due on the return if the return is filed more than 15 days after the due date described in Subsection (2)(a).
(d) This Subsection (2) does not apply to:
(i) an amended return; or
(ii) a return with no tax due.
(3) (a) If a person fails to pay a tax, fee, or charge due, the person is subject to a penalty as provided in this Subsection (3).
(b) (i) A penalty in the amount described in Subsection (3)(b)(ii) is imposed if:
(A) a person files a return with respect to a nonqualifying obligation on or before the due date for filing a return described in Subsection (2)(a), but fails to pay the nonqualifying obligation due on the return on or before that due date;
(B) a person:
(I) is subject to a penalty under Subsection (2)(b); and
(II) fails to pay a nonqualifying obligation due on a return within a 90-day period after the due date for filing a return described in Subsection (2)(a);
(C) a person:
(I) is mailed a notice of deficiency; and
(II) within a 30-day period after the day on which the notice of deficiency described in Subsection (3)(b)(i)(C)(I) is mailed:
(Aa) does not file a petition for redetermination or a request for agency action; and
(Bb) fails to pay a nonqualifying obligation due on a return;
(D) (I) the commission:
(Aa) issues an order constituting final agency action resulting from a timely filed petition for redetermination or a timely filed request for agency action; or
(Bb) is considered to have denied a request for reconsideration under Subsection [63-46b-13] 63G-4-302(3)(b) resulting from a timely filed petition for redetermination or a timely filed request for agency action; and
(II) a person fails to pay a nonqualifying obligation due on a return within a 30-day period after the date the commission:
(Aa) issues the order constituting final agency action described in Subsection (3)(b)(i)(D)(I)(Aa); or
(Bb) is considered to have denied the request for reconsideration described in Subsection (3)(b)(i)(D)(I)(Bb); or
(E) a person fails to pay a nonqualifying obligation within a 30-day period after the date of a final judicial decision resulting from a timely filed petition for judicial review.
(ii) For purposes of Subsection (3)(b)(i), the penalty is an amount equal to the greater of:
(A) $20; or
(B) 10% of the unpaid nonqualifying obligation due on the return.
(c) (i) This Subsection (3)(c) applies to a penalty:
(A) imposed on or after the phase I activation date with respect to a phase I obligation; or
(B) imposed on or after the phase II activation date with respect to a phase II obligation.
(ii) (A) The penalty described in Subsection (3)(c)(ii)(B) applies if a person:
(I) with respect to a phase I obligation:
(Aa) files a return on or before the due date for filing a return described in Subsection (2)(a); and
(Bb) fails to pay the phase I obligation due on the return on or before the due date described in Subsection (2)(a); or
(II) with respect to a phase II obligation:
(Aa) files a return on or before the due date for filing a return described in Subsection (2)(a); and
(Bb) fails to pay the phase II obligation due on the return on or before the due date described in Subsection (2)(a).
(B) For purposes of Subsection (3)(c)(ii)(A), the penalty is an amount equal to the greater of:
(I) $20; or
(II) (Aa) 2% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid no later than five days after the due date for filing a return described in Subsection (2)(a);
(Bb) 5% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than five days after the due date for filing a return described in Subsection (2)(a) but no later than 15 days after that due date; or
(Cc) 10% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than 15 days after the due date for filing a return described in Subsection (2)(a).
(iii) (A) A person is subject to a penalty as provided in Subsection (3)(c)(iii)(B) if the person:
(I) is subject to a penalty under Subsection (2)(c); and
(II) fails to pay a phase I obligation or phase II obligation due on a return within a 90-day period after the due date for filing a return described in Subsection (2)(a).
(B) For purposes of Subsection (3)(c)(iii)(A), the penalty is an amount equal to the greater of:
(I) $20; or
(II) (Aa) 2% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid no later than five days after the last day of the 90-day period described in Subsection (3)(c)(iii)(A)(II);
(Bb) 5% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than five days after the last day of the 90-day period described in Subsection (3)(c)(iii)(A)(II) but no later than 15 days after the last day of the 90-day period described in Subsection (3)(c)(iii)(A)(II); or
(Cc) 10% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than 15 days after the last day of the 90-day period described in Subsection (3)(c)(iii)(A)(II).
(iv) (A) A person is subject to a penalty as provided in Subsection (3)(c)(iv)(B) if the person:
(I) is mailed a notice of deficiency; and
(II) within a 30-day period after the day on which the notice of deficiency described in Subsection (3)(c)(iv)(A)(I) is mailed:
(Aa) does not file a petition for redetermination or a request for agency action; and
(Bb) fails to pay a phase I obligation or phase II obligation due on a return.
(B) For purposes of Subsection (3)(c)(iv)(A), the penalty is an amount equal to the greater of:
(I) $20; or
(II) (Aa) 2% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid no later than five days after the last day of the 30-day period described in Subsection (3)(c)(iv)(A)(II);
(Bb) 5% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than five days after the last day of the 30-day period described in Subsection (3)(c)(iv)(A)(II) but no later than 15 days after the last day of the 30-day period described in Subsection (3)(c)(iv)(A)(II); or
(Cc) 10% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than 15 days after the last day of the 30-day period described in Subsection (3)(c)(iv)(A)(II).
(v) (A) A person is subject to a penalty as provided in Subsection (3)(c)(v)(B) if:
(I) the commission:
(Aa) issues an order constituting final agency action resulting from a timely filed petition for redetermination or a timely filed request for agency action; or
(Bb) is considered to have denied a request for reconsideration under Subsection [63-46b-13] 63G-4-302(3)(b) resulting from a timely filed petition for redetermination or a timely filed request for agency action; and
(II) the person fails to pay a phase I obligation or phase II obligation due on a return within a 30-day period after the date the commission:
(Aa) issues the order constituting final agency action described in Subsection (3)(c)(v)(A)(I)(Aa); or
(Bb) is considered to have denied the request for reconsideration described in Subsection (3)(c)(v)(A)(I)(Bb).
(B) For purposes of Subsection (3)(c)(v)(A), the penalty is an amount equal to the greater of:
(I) $20; or
(II) (Aa) 2% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid no later than five days after the last day of the 30-day period described in Subsection (3)(c)(v)(A)(II);
(Bb) 5% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than five days after the last day of the 30-day period described in Subsection (3)(c)(v)(A)(II) but no later than 15 days after the last day of the 30-day period described in Subsection (3)(c)(v)(A)(II); or
(Cc) 10% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than 15 days after the last day of the 30-day period described in Subsection (3)(c)(v)(A)(II).
(vi) (A) A person is subject to a penalty as provided in Subsection (3)(c)(vi)(B) if within a 30-day period after the date of a final judicial decision resulting from a timely filed petition for judicial review, the person fails to pay a phase I obligation or phase II obligation.
(B) For purposes of Subsection (3)(c)(vi)(A), the penalty is an amount equal to the greater of:
(I) $20; or
(II) (Aa) 2% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid no later than five days after the last day of the 30-day period described in Subsection (3)(c)(vi)(A);
(Bb) 5% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than five days after the last day of the 30-day period described in Subsection (3)(c)(vi)(A) but no later than 15 days after the last day of the 30-day period described in Subsection (3)(c)(vi)(A); or
(Cc) 10% of the unpaid phase I obligation or phase II obligation due on the return if the phase I obligation or phase II obligation due on the return is paid more than 15 days after the last day of the 30-day period described in Subsection (3)(c)(vi)(A).
(4) (a) Beginning January 1, 1995, in the case of any underpayment of estimated tax or quarterly installments required by Sections 59-5-107, 59-5-207, 59-7-504, and 59-9-104, there shall be added a penalty in an amount determined by applying the interest rate provided under Section 59-1-402 plus four percentage points to the amount of the underpayment for the period of the underpayment.
(b) (i) For purposes of Subsection (4)(a), the amount of the underpayment shall be the excess of the required installment over the amount, if any, of the installment paid on or before the due date for the installment.
(ii) The period of the underpayment shall run from the due date for the installment to whichever of the following dates is the earlier:
(A) the original due date of the tax return, without extensions, for the taxable year; or
(B) with respect to any portion of the underpayment, the date on which that portion is paid.
(iii) For purposes of this Subsection (4), a payment of estimated tax shall be credited against unpaid required installments in the order in which the installments are required to be paid.
(5) (a) Notwithstanding Subsection (2) and except as provided in Subsection (6), a person allowed by law an extension of time for filing a corporate franchise or income tax return under Chapter 7, Corporate Franchise and Income Taxes, or an individual income tax return under Chapter 10, Individual Income Tax Act, is subject to a penalty in the amount described in Subsection (5)(b) if, on or before the day on which the return is due as provided by law, not including the extension of time, the person fails to pay:
(i) for a person filing a corporate franchise or income tax return under Chapter 7, Corporate Franchise and Income Taxes, the payment required by Subsection 59-7-507(1)(b); or
(ii) for a person filing an individual income tax return under Chapter 10, Individual Income Tax Act, the payment required by Subsection 59-10-516(2).
(b) For purposes of Subsection (5)(a), the penalty per month during the period of the extension of time for filing the return is an amount equal to 2% of the unpaid tax due on the return.
(6) If a person does not file a return within an extension of time allowed by Section 59-7-505 or 59-10-516, the person:
(a) is not subject to a penalty in the amount described in Subsection (5)(b); and
(b) is subject to a penalty in an amount equal to the sum of:
(i) a late file penalty in an amount equal to the greater of:
(A) $20; or
(B) 10% of the unpaid tax due on the return; and
(ii) a late pay penalty in an amount equal to the greater of:
(A) $20; or
(B) 10% of the unpaid tax due on the return.
(7) (a) Additional penalties for underpayments of tax are as provided in this Subsection (7)(a).
(i) Except as provided in Subsection (7)(c), if any underpayment of tax is due to negligence, the penalty is 10% of the underpayment.
(ii) Except as provided in Subsection (7)(d), if any underpayment of tax is due to intentional disregard of law or rule, the penalty is 15% of the underpayment.
(iii) For intent to evade the tax, the penalty is the greater of $500 per period or 50% of the tax due.
(iv) If the underpayment is due to fraud with intent to evade the tax, the penalty is the greater of $500 per period or 100% of the underpayment.
(b) If the commission determines that a person is liable for a penalty imposed under Subsection (7)(a)(ii), (iii), or (iv), the commission shall notify the taxpayer of the proposed penalty.
(i) The notice of proposed penalty shall:
(A) set forth the basis of the assessment; and
(B) be mailed by certified mail, postage prepaid, to the person's last-known address.
(ii) Upon receipt of the notice of proposed penalty, the person against whom the penalty is proposed may:
(A) pay the amount of the proposed penalty at the place and time stated in the notice; or
(B) proceed in accordance with the review procedures of Subsection (7)(b)(iii).
(iii) Any person against whom a penalty has been proposed in accordance with this Subsection (7) may contest the proposed penalty by filing a petition for an adjudicative proceeding with the commission.
(iv) (A) If the commission determines that a person is liable for a penalty under this Subsection (7), the commission shall assess the penalty and give notice and demand for payment.
(B) The notice and demand for payment described in Subsection (7)(b)(iv)(A) shall be mailed by certified mail, postage prepaid, to the person's last-known address.
(c) A seller that voluntarily collects a tax under Subsection 59-12-107(1)(b) is not subject to the penalty under Subsection (7)(a)(i) if on or after July 1, 2001:
(i) a court of competent jurisdiction issues a final unappealable judgment or order determining that:
(A) the seller meets one or more of the criteria described in Subsection 59-12-107(1)(a); and
(B) the commission or a county, city, or town may require the seller to collect a tax under Subsection 59-12-103(2)(a) or (b); or
(ii) the commission issues a final unappealable administrative order determining that:
(A) the seller meets one or more of the criteria described in Subsection 59-12-107(1)(a); and
(B) the commission or a county, city, or town may require the seller to collect a tax under Subsection 59-12-103(2)(a) or (b).
(d) A seller that voluntarily collects a tax under Subsection 59-12-107(1)(b) is not subject to the penalty under Subsection (7)(a)(ii) if:
(i) (A) a court of competent jurisdiction issues a final unappealable judgment or order determining that:
(I) the seller meets one or more of the criteria described in Subsection 59-12-107(1)(a); and
(II) the commission or a county, city, or town may require the seller to collect a tax under Subsection 59-12-103(2)(a) or (b); or
(B) the commission issues a final unappealable administrative order determining that:
(I) the seller meets one or more of the criteria described in Subsection 59-12-107(1)(a); and
(II) the commission or a county, city, or town may require the seller to collect a tax under Subsection 59-12-103(2)(a) or (b); and
(ii) the seller's intentional disregard of law or rule is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(8) Except as provided in Section 59-12-105, the penalty for failure to file an information return, information report, or a complete supporting schedule is $50 for each information return, information report, or supporting schedule up to a maximum of $1,000.
(9) If any taxpayer, in furtherance of a frivolous position, has a prima facie intent to delay or impede administration of the tax law and files a purported return that fails to contain information from which the correctness of reported tax liability can be determined or that clearly indicates that the tax liability shown must be substantially incorrect, the penalty is $500.
(10) (a) A seller that fails to remit a tax, fee, or charge monthly as required by Subsection 59-12-108(1)(a)(ii):
(i) is subject to a penalty described in Subsection (2); and
(ii) may not retain the percentage of sales and use taxes that would otherwise be allowable under Subsection 59-12-108(2).
(b) A seller that fails to remit a tax, fee, or charge by electronic funds transfer as required by Subsection 59-12-108(1)(a)(ii)(B):
(i) is subject to a penalty described in Subsection (2); and
(ii) may not retain the percentage of sales and use taxes that would otherwise be allowable under Subsection 59-12-108(2).
(11) (a) A person is subject to the penalty provided in Subsection (11)(c) if that person:
(i) commits an act described in Subsection (11)(b) with respect to one or more of the following documents:
(A) a return;
(B) an affidavit;
(C) a claim; or
(D) a document similar to Subsections (11)(a)(i)(A) through (C);
(ii) knows or has reason to believe that the document described in Subsection (11)(a)(i) will be used in connection with any material matter administered by the commission; and
(iii) knows that the document described in Subsection (11)(a)(i), if used in connection with any material matter administered by the commission, would result in an understatement of another person's liability for a tax, fee, or charge administered by the commission.
(b) The following acts apply to Subsection (11)(a)(i):
(i) preparing any portion of a document described in Subsection (11)(a)(i);
(ii) presenting any portion of a document described in Subsection (11)(a)(i);
(iii) procuring any portion of a document described in Subsection (11)(a)(i);
(iv) advising in the preparation or presentation of any portion of a document described in Subsection (11)(a)(i);
(v) aiding in the preparation or presentation of any portion of a document described in Subsection (11)(a)(i);
(vi) assisting in the preparation or presentation of any portion of a document described in Subsection (11)(a)(i); or
(vii) counseling in the preparation or presentation of any portion of a document described in Subsection (11)(a)(i).
(c) For purposes of Subsection (11)(a), the penalty:
(i) shall be imposed by the commission;
(ii) is $500 for each document described in Subsection (11)(a)(i) with respect to which the person described in Subsection (11)(a) meets the requirements of Subsection (11)(a); and
(iii) is in addition to any other penalty provided by law.
(d) The commission may seek a court order to enjoin a person from engaging in conduct that is subject to a penalty under this Subsection (11).
(e) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules prescribing the documents that are similar to Subsections (11)(a)(i)(A) through (C).
(12) (a) As provided in Section 76-8-1101, criminal offenses and penalties are as provided in Subsections (12)(b) through (e).
(b) (i) Any person who is required by this title or any laws the commission administers or regulates to register with or obtain a license or permit from the commission, who operates without having registered or secured a license or permit, or who operates when the registration, license, or permit is expired or not current, is guilty of a class B misdemeanor.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (12)(b)(i), the penalty may not:
(A) be less than $500; or
(B) exceed $1,000.
(c) (i) Any person who, with intent to evade any tax or requirement of this title or any lawful requirement of the commission, fails to make, render, sign, or verify any return or to supply any information within the time required by law, or who makes, renders, signs, or verifies any false or fraudulent return or statement, or who supplies any false or fraudulent information, is guilty of a third degree felony.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (12)(c)(i), the penalty may not:
(A) be less than $1,000; or
(B) exceed $5,000.
(d) (i) Any person who intentionally or willfully attempts to evade or defeat any tax or the payment of a tax is, in addition to other penalties provided by law, guilty of a second degree felony.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (12)(d)(i), the penalty may not:
(A) be less than $1,500; or
(B) exceed $25,000.
(e) (i) A person is guilty of a second degree felony if that person commits an act:
(A) described in Subsection (12)(e)(ii) with respect to one or more of the following documents:
(I) a return;
(II) an affidavit;
(III) a claim; or
(IV) a document similar to Subsections (12)(e)(i)(A)(I) through (III); and
(B) subject to Subsection (12)(e)(iii), with knowledge that the document described in Subsection (12)(e)(i)(A):
(I) is false or fraudulent as to any material matter; and
(II) could be used in connection with any material matter administered by the commission.
(ii) The following acts apply to Subsection (12)(e)(i):
(A) preparing any portion of a document described in Subsection (12)(e)(i)(A);
(B) presenting any portion of a document described in Subsection (12)(e)(i)(A);
(C) procuring any portion of a document described in Subsection (12)(e)(i)(A);
(D) advising in the preparation or presentation of any portion of a document described in Subsection (12)(e)(i)(A);
(E) aiding in the preparation or presentation of any portion of a document described in Subsection (12)(e)(i)(A);
(F) assisting in the preparation or presentation of any portion of a document described in Subsection (12)(e)(i)(A); or
(G) counseling in the preparation or presentation of any portion of a document described in Subsection (12)(e)(i)(A).
(iii) This Subsection (12)(e) applies:
(A) regardless of whether the person for which the document described in Subsection (12)(e)(i)(A) is prepared or presented:
(I) knew of the falsity of the document described in Subsection (12)(e)(i)(A); or
(II) consented to the falsity of the document described in Subsection (12)(e)(i)(A); and
(B) in addition to any other penalty provided by law.
(iv) Notwithstanding Section 76-3-301, for purposes of this Subsection (12)(e), the penalty may not:
(A) be less than $1,500; or
(B) exceed $25,000.
(v) The commission may seek a court order to enjoin a person from engaging in conduct that is subject to a penalty under this Subsection (12)(e).
(vi) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules prescribing the documents that are similar to Subsections (12)(e)(i)(A)(I) through (III).
(f) The statute of limitations for prosecution for a violation of this Subsection (12) is the later of six years:
(i) from the date the tax should have been remitted; or
(ii) after the day on which the person commits the criminal offense.
(13) Upon making a record of its actions, and upon reasonable cause shown, the commission may waive, reduce, or compromise any of the penalties or interest imposed under this part.
Section 956. Section 59-1-403 is amended to read:
59-1-403
. Confidentiality -- Exceptions -- Penalty -- Application to property tax.(1) (a) Any of the following may not divulge or make known in any manner any information gained by that person from any return filed with the commission:
(i) a tax commissioner;
(ii) an agent, clerk, or other officer or employee of the commission; or
(iii) a representative, agent, clerk, or other officer or employee of any county, city, or town.
(b) An official charged with the custody of a return filed with the commission is not required to produce the return or evidence of anything contained in the return in any action or proceeding in any court, except:
(i) in accordance with judicial order;
(ii) on behalf of the commission in any action or proceeding under:
(A) this title; or
(B) other law under which persons are required to file returns with the commission;
(iii) on behalf of the commission in any action or proceeding to which the commission is a party; or
(iv) on behalf of any party to any action or proceeding under this title if the report or facts shown by the return are directly involved in the action or proceeding.
(c) Notwithstanding Subsection (1)(b), a court may require the production of, and may admit in evidence, any portion of a return or of the facts shown by the return, as are specifically pertinent to the action or proceeding.
(2) This section does not prohibit:
(a) a person or that person's duly authorized representative from receiving a copy of any return or report filed in connection with that person's own tax;
(b) the publication of statistics as long as the statistics are classified to prevent the identification of particular reports or returns; and
(c) the inspection by the attorney general or other legal representative of the state of the report or return of any taxpayer:
(i) who brings action to set aside or review a tax based on the report or return;
(ii) against whom an action or proceeding is contemplated or has been instituted under this title; or
(iii) against whom the state has an unsatisfied money judgment.
(3) (a) Notwithstanding Subsection (1) and for purposes of administration, the commission may by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, provide for a reciprocal exchange of information with:
(i) the United States Internal Revenue Service; or
(ii) the revenue service of any other state.
(b) Notwithstanding Subsection (1) and for all taxes except individual income tax and corporate franchise tax, the commission may by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, share information gathered from returns and other written statements with the federal government, any other state, any of the political subdivisions of another state, or any political subdivision of this state, except as limited by Sections 59-12-209 and 59-12-210, if the political subdivision, other state, or the federal government grant substantially similar privileges to this state.
(c) Notwithstanding Subsection (1) and for all taxes except individual income tax and corporate franchise tax, the commission may by rule, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, provide for the issuance of information concerning the identity and other information of taxpayers who have failed to file tax returns or to pay any tax due.
(d) Notwithstanding Subsection (1), the commission shall provide to the Solid and Hazardous Waste Control Board executive secretary, as defined in Section 19-6-102, as requested by the executive secretary, any records, returns, or other information filed with the commission under Chapter 13, Motor and Special Fuel Tax Act, or Section 19-6-410.5 regarding the environmental assurance program participation fee.
(e) Notwithstanding Subsection (1), at the request of any person the commission shall provide that person sales and purchase volume data reported to the commission on a report, return, or other information filed with the commission under:
(i) Chapter 13, Part 2, Motor Fuel; or
(ii) Chapter 13, Part 4, Aviation Fuel.
(f) Notwithstanding Subsection (1), upon request from a tobacco product manufacturer, as defined in Section 59-22-202, the commission shall report to the manufacturer:
(i) the quantity of cigarettes, as defined in Section 59-22-202, produced by the manufacturer and reported to the commission for the previous calendar year under Section 59-14-407; and
(ii) the quantity of cigarettes, as defined in Section 59-22-202, produced by the manufacturer for which a tax refund was granted during the previous calendar year under Section 59-14-401 and reported to the commission under Subsection 59-14-401(1)(a)(v).
(g) Notwithstanding Subsection (1), the commission shall notify manufacturers, distributors, wholesalers, and retail dealers of a tobacco product manufacturer that is prohibited from selling cigarettes to consumers within the state under Subsection 59-14-210(2).
(h) Notwithstanding Subsection (1), the commission may:
(i) provide to the Division of Consumer Protection within the Department of Commerce and the attorney general data:
(A) reported to the commission under Section 59-14-212; or
(B) related to a violation under Section 59-14-211; and
(ii) upon request provide to any person data reported to the commission under Subsections 59-14-212(1)(a) through (c) and Subsection 59-14-212(1)(g).
(i) Notwithstanding Subsection (1), the commission shall, at the request of a committee of the Legislature, Office of the Legislative Fiscal Analyst, or Governor's Office of Planning and Budget, provide to the committee or office the total amount of revenues collected by the commission under Chapter 24, Radioactive Waste Facility Tax Act, for the time period specified by the committee or office.
(j) Notwithstanding Subsection (1), the commission shall at the request of the Legislature provide to the Legislature the total amount of sales or uses exempt under Subsection 59-12-104(46) reported to the commission in accordance with Section 59-12-105.
(k) Notwithstanding Subsection (1), the commission shall make the directory required by Section 59-14-603 available for public inspection.
(l) Notwithstanding Subsection (1), the commission may share information with federal, state, or local agencies as provided in Subsection 59-14-606(3).
(m) (i) Notwithstanding Subsection (1), the commission shall provide the Office of Recovery Services within the Department of Human Services any relevant information obtained from a return filed under Chapter 10, Individual Income Tax Act, regarding a taxpayer who has become obligated to the Office of Recovery Services.
(ii) The information described in Subsection (3)(m)(i) may be provided by the Office of Recovery Services to any other state's child support collection agency involved in enforcing that support obligation.
(n) (i) Notwithstanding Subsection (1), upon request from the state court administrator, the commission shall provide to the state court administrator, the name, address, telephone number, county of residence, and Social Security number on resident returns filed under Chapter 10, Individual Income Tax Act.
(ii) The state court administrator may use the information described in Subsection (3)(n)(i) only as a source list for the master jury list described in Section 78-46-10.
(o) Notwithstanding Subsection (1), the commission shall at the request of a committee, commission, or task force of the Legislature provide to the committee, commission, or task force of the Legislature any information relating to a tax imposed under Chapter 9, Taxation of Admitted Insurers, relating to the study required by Section 59-9-101.
(p) (i) As used in this Subsection (3)(p), "office" means the:
(A) Office of the Legislative Fiscal Analyst; or
(B) Office of Legislative Research and General Counsel.
(ii) Notwithstanding Subsection (1) and except as provided in Subsection (3)(p)(iii), the commission shall at the request of an office provide to the office all information:
(A) gained by the commission; and
(B) required to be attached to or included in returns filed with the commission.
(iii) (A) An office may not request and the commission may not provide to an office a person's:
(I) address;
(II) name;
(III) Social Security number; or
(IV) taxpayer identification number.
(B) The commission shall in all instances protect the privacy of a person as required by Subsection (3)(p)(iii)(A).
(iv) An office may provide information received from the commission in accordance with this Subsection (3)(p) only:
(A) as:
(I) a fiscal estimate;
(II) fiscal note information; or
(III) statistical information; and
(B) if the information is classified to prevent the identification of a particular return.
(v) (A) A person may not request information from an office under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, or this section, if that office received the information from the commission in accordance with this Subsection (3)(p).
(B) An office may not provide to a person that requests information in accordance with Subsection (3)(p)(v)(A) any information other than the information the office provides in accordance with Subsection (3)(p)(iv).
(4) (a) Reports and returns shall be preserved for at least three years.
(b) After the three-year period provided in Subsection (4)(a) the commission may destroy a report or return.
(5) (a) Any person who violates this section is guilty of a class A misdemeanor.
(b) If the person described in Subsection (5)(a) is an officer or employee of the state, the person shall be dismissed from office and be disqualified from holding public office in this state for a period of five years thereafter.
(c) Notwithstanding Subsection (5)(a) or (b), an office that requests information in accordance with Subsection (3)(p)(iii) or a person that requests information in accordance with Subsection (3)(p)(v):
(i) is not guilty of a class A misdemeanor; and
(ii) is not subject to:
(A) dismissal from office in accordance with Subsection (5)(b); or
(B) disqualification from holding public office in accordance with Subsection (5)(b).
(6) Except as provided in Section 59-1-404, this part does not apply to the property tax.
Section 957. Section 59-1-404 is amended to read:
59-1-404
. Definitions -- Confidentiality of commercial information obtained from a property taxpayer or derived from the commercial information -- Rulemaking authority -- Exceptions -- Written explanation -- Signature requirements -- Retention of signed explanation by employer -- Penalty.(1) As used in this section:
(a) "Appraiser" means an individual who holds an appraiser's certificate or license issued by the Division of Real Estate under Title 61, Chapter 2b, Real Estate Appraiser Licensing and Certification Act and includes an individual associated with an appraiser who assists the appraiser in preparing an appraisal.
(b) "Appraisal" means an appraisal as defined in Section 61-2b-2.
(c) (i) "Commercial information" means:
(A) information of a commercial nature obtained from a property taxpayer regarding the property taxpayer's property; or
(B) information derived from the information described in this Subsection (1)(c)(i).
(ii) (A) "Commercial information" does not include information regarding a property taxpayer's property if the information is intended for public use.
(B) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (1)(c)(ii)(A), the commission may by rule prescribe the circumstances under which information is intended for public use.
(d) "Consultation service" means a consultation service as defined in Section 61-2b-2.
(e) "Locally assessed property" means property that is assessed by a county assessor in accordance with Chapter 2, Part 3, County Assessment.
(f) "Property taxpayer" means a person that:
(i) is a property owner; or
(ii) has in effect a contract with a property owner to:
(A) make filings on behalf of the property owner;
(B) process appeals on behalf of the property owner; or
(C) pay a tax under Chapter 2, Property Tax Act, on the property owner's property.
(g) "Property taxpayer's property" means property with respect to which a property taxpayer:
(i) owns the property;
(ii) makes filings relating to the property;
(iii) processes appeals relating to the property; or
(iv) pays a tax under Chapter 2, Property Tax Act, on the property.
(h) "Protected commercial information" means commercial information that:
(i) identifies a specific property taxpayer; or
(ii) would reasonably lead to the identity of a specific property taxpayer.
(2) An individual listed under Subsection 59-1-403(1)(a) may not disclose commercial information:
(a) obtained in the course of performing any duty that the individual listed under Subsection 59-1-403(1)(a) performs under Chapter 2, Property Tax Act; or
(b) relating to an action or proceeding:
(i) with respect to a tax imposed on property in accordance with Chapter 2, Property Tax Act; and
(ii) that is filed in accordance with:
(A) this chapter;
(B) Chapter 2, Property Tax Act; or
(C) this chapter and Chapter 2, Property Tax Act.
(3) (a) Notwithstanding Subsection (2) and subject to Subsection (3)(b), an individual listed under Subsection 59-1-403(1)(a) may disclose the following information:
(i) the assessed value of property;
(ii) the tax rate imposed on property;
(iii) a legal description of property;
(iv) the physical description or characteristics of property, including a street address or parcel number for the property;
(v) the square footage or acreage of property;
(vi) the square footage of improvements on property;
(vii) the name of a property taxpayer;
(viii) the mailing address of a property taxpayer;
(ix) the amount of a property tax:
(A) assessed on property;
(B) due on property;
(C) collected on property;
(D) abated on property; or
(E) deferred on property;
(x) the amount of the following relating to property taxes due on property:
(A) interest;
(B) costs; or
(C) other charges;
(xi) the tax status of property, including:
(A) an exemption;
(B) a property classification;
(C) a bankruptcy filing; or
(D) whether the property is the subject of an action or proceeding under this title;
(xii) information relating to a tax sale of property; or
(xiii) information relating to single-family residential property.
(b) (i) Subject to Subsection (3)(b)(ii), a person may receive the information described in Subsection (3)(a) in written format.
(ii) The following may charge a reasonable fee to cover the actual cost of providing the information described in Subsection (3)(a) in written format:
(A) the commission;
(B) a county;
(C) a city; or
(D) a town.
(4) (a) Notwithstanding Subsection (2) and except as provided in Subsection (4)(c), an individual listed under Subsection 59-1-403(1)(a) shall disclose commercial information:
(i) in accordance with judicial order;
(ii) on behalf of the commission in any action or proceeding:
(A) under this title;
(B) under another law under which a property taxpayer is required to disclose commercial information; or
(C) to which the commission is a party;
(iii) on behalf of any party to any action or proceeding under this title if the commercial information is directly involved in the action or proceeding; or
(iv) if the requirements of Subsection (4)(b) are met, that is:
(A) relevant to an action or proceeding:
(I) filed in accordance with this title; and
(II) involving property; or
(B) in preparation for an action or proceeding involving property.
(b) Commercial information shall be disclosed in accordance with Subsection (4)(a)(iv):
(i) if the commercial information is obtained from:
(A) a real estate agent if the real estate agent is not a property taxpayer of the property that is the subject of the action or proceeding;
(B) an appraiser if the appraiser:
(I) is not a property taxpayer of the property that is the subject of the action or proceeding; and
(II) did not receive the commercial information pursuant to Subsection (8);
(C) a property manager if the property manager is not a property taxpayer of the property that is the subject of the action or proceeding; or
(D) a property taxpayer other than a property taxpayer of the property that is the subject of the action or proceeding;
(ii) regardless of whether the commercial information is disclosed in more than one action or proceeding; and
(iii) (A) if a county board of equalization conducts the action or proceeding, the county board of equalization takes action to provide that any commercial information disclosed during the action or proceeding may not be disclosed by any person conducting or participating in the action or proceeding except as specifically allowed by this section;
(B) if the commission conducts the action or proceeding, the commission enters a protective order or, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, makes rules specifying that any commercial information disclosed during the action or proceeding may not be disclosed by any person conducting or participating in the action or proceeding except as specifically allowed by this section; or
(C) if a court of competent jurisdiction conducts the action or proceeding, the court enters a protective order specifying that any commercial information disclosed during the action or proceeding may not be disclosed by any person conducting or participating in the action or proceeding except as specifically allowed by this section.
(c) Notwithstanding Subsection (4)(a), a court may require the production of, and may admit in evidence, commercial information that is specifically pertinent to the action or proceeding.
(5) Notwithstanding Subsection (2), this section does not prohibit:
(a) the following from receiving a copy of any commercial information relating to the basis for assessing a tax that is charged to a property taxpayer:
(i) the property taxpayer;
(ii) a duly authorized representative of the property taxpayer;
(iii) a person that has in effect a contract with the property taxpayer to:
(A) make filings on behalf of the property taxpayer;
(B) process appeals on behalf of the property taxpayer; or
(C) pay a tax under Chapter 2, Property Tax Act, on the property taxpayer's property;
(iv) a property taxpayer that purchases property from another property taxpayer; or
(v) a person that the property taxpayer designates in writing as being authorized to receive the commercial information;
(b) the publication of statistics as long as the statistics are classified to prevent the identification of a particular property taxpayer's commercial information; or
(c) the inspection by the attorney general or other legal representative of the state or a legal representative of a political subdivision of the state of the commercial information of a property taxpayer:
(i) that brings action to set aside or review a tax or property valuation based on the commercial information;
(ii) against which an action or proceeding is contemplated or has been instituted under this title; or
(iii) against which the state or a political subdivision of the state has an unsatisfied money judgment.
(6) Notwithstanding Subsection (2), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule establish standards authorizing an individual listed under Subsection 59-1-403(1)(a) to disclose commercial information:
(a) (i) in a published decision; or
(ii) in carrying out official duties; and
(b) if that individual listed under Subsection 59-1-403(1)(a) consults with the property taxpayer that provided the commercial information.
(7) Notwithstanding Subsection (2):
(a) an individual listed under Subsection 59-1-403(1)(a) may share commercial information with the following:
(i) another individual listed in Subsection 59-1-403(1)(a)(i) or (ii); or
(ii) a representative, agent, clerk, or other officer or employee of a county as required to fulfill an obligation created by Chapter 2, Property Tax Act;
(b) an individual listed under Subsection 59-1-403(1)(a) may perform the following to fulfill an obligation created by Chapter 2, Property Tax Act:
(i) publish notice;
(ii) provide notice; or
(iii) file a lien; or
(c) the commission may by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, share commercial information gathered from returns and other written statements with the federal government, any other state, any of the political subdivisions of another state, or any political subdivision of this state, if these political subdivisions or the federal government grant substantially similar privileges to this state.
(8) Notwithstanding Subsection (2):
(a) subject to the limitations in this section, an individual described in Subsection 59-1-403(1)(a) may share the following commercial information with an appraiser:
(i) the sales price of locally assessed property and the related financing terms;
(ii) capitalization rates and related rates and ratios related to the valuation of locally assessed property; and
(iii) income and expense information related to the valuation of locally assessed property; and
(b) except as provided in Subsection (4), an appraiser who receives commercial information:
(i) may disclose the commercial information:
(A) to an individual described in Subsection 59-1-403(1)(a);
(B) to an appraiser;
(C) in an appraisal if protected commercial information is removed to protect its confidential nature; or
(D) in performing a consultation service if protected commercial information is not disclosed; and
(ii) may not use the commercial information:
(A) for a purpose other than to prepare an appraisal or perform a consultation service; or
(B) for a purpose intended to be, or which could reasonably be foreseen to be, anti-competitive to a property taxpayer.
(9) (a) The commission shall:
(i) prepare a written explanation of this section; and
(ii) make the written explanation described in Subsection (9)(a)(i) available to the public.
(b) An employer of a person described in Subsection 59-1-403(1)(a) shall:
(i) provide the written explanation described in Subsection (9)(a)(i) to each person described in Subsection 59-1-403(1)(a) who is reasonably likely to receive commercial information;
(ii) require each person who receives a written explanation in accordance with Subsection (9)(b)(i) to:
(A) read the written explanation; and
(B) sign the written explanation; and
(iii) retain each written explanation that is signed in accordance with Subsection (9)(b)(ii) for a time period:
(A) beginning on the day on which a person signs the written explanation in accordance with Subsection (9)(b)(ii); and
(B) ending six years after the day on which the employment of the person described in Subsection (9)(b)(iii)(A) by the employer terminates.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall by rule define "employer."
(10) (a) An individual described in Subsection (1)(a) or 59-1-403(1)(a), or an individual that violates a protective order or similar limitation entered pursuant to Subsection (4)(b)(iii), is guilty of a class A misdemeanor if that person:
(i) intentionally discloses commercial information in violation of this section; and
(ii) knows that the disclosure described in Subsection (10)(a)(i) is prohibited by this section.
(b) If the individual described in Subsection (10)(a) is an officer or employee of the state or a county and is convicted of violating this section, the individual shall be dismissed from office and be disqualified from holding public office in this state for a period of five years thereafter.
(c) If the individual described in Subsection (10)(a) is an appraiser, the appraiser shall forfeit any certification or license received under Title 61, Section 2b, Real Estate Appraiser Licensing and Certification Act, for a period of five years.
(d) If the individual described in Subsection (10)(a) is an individual associated with an appraiser who assists the appraiser in preparing appraisals, the individual shall be prohibited from becoming licensed or certified under Title 61, Section 2b, Real Estate Appraiser Licensing and Certification Act, for a period of five years.
Section 958. Section 59-1-502.5 is amended to read:
59-1-502.5
. Initial hearing.(1) At least 30 days before any formal hearing is held in response to a party's request for agency action, an initial hearing shall be held before one or more tax commissioners or an administrative law judge designated by the commission at which proffers of evidence, including testimony, documents, and other exhibits may be made and oral or written argument on legal issues may be received.
(2) Any party participating in an initial hearing shall have the right to informal discovery under any rules established by the commission.
(3) Parties may appear at the initial hearing in person or through agents, employees, or other representatives, but any person appearing on behalf of another party or entity shall have full settlement authority on behalf of the party he is representing.
(4) A record may not be kept of the initial hearing and all initial hearing proceedings are privileged and do not constitute admissions against interest of any party participating in the hearing.
(5) At the initial hearing, or as soon thereafter as reasonably practicable, the commission may take any action it deems appropriate to settle, compromise, or reduce the deficiency, or adjust the assessed valuation of any property.
(6) Nothing in this section may limit a party's right to a formal hearing under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 959. Section 59-1-601 is amended to read:
59-1-601
. District court jurisdiction.(1) In addition to the jurisdiction granted in Section [63-46b-15] 63G-4-402, beginning July 1, 1994, the district court shall have jurisdiction to review by trial de novo all decisions issued by the commission after that date resulting from formal adjudicative proceedings.
(2) As used in this section, "trial de novo" means an original, independent proceeding, and does not mean a trial de novo on the record.
(3) (a) In any appeal to the district court pursuant to this section taken after January 1, 1997, the commission shall certify a record of its proceedings to the district court.
(b) This Subsection (3) supercedes Section [63-46b-16] 63G-4-403 pertaining to judicial review of formal adjudicative proceedings.
Section 960. Section 59-1-602 is amended to read:
59-1-602
. Right to appeal -- Venue -- County as party in interest.(1) (a) Any aggrieved party appearing before the commission or county whose tax revenues are affected by the decision may at that party's option petition for judicial review in the district court pursuant to this section, or in the Supreme Court or the Court of Appeals pursuant to Section 59-1-610.
(b) Judicial review of formal or informal adjudicative proceedings in the district is in the district court located in the county of residence or principal place of business of the affected taxpayer or, in the case of a taxpayer whose taxes are assessed on a statewide basis, to the Third Judicial District Court in and for Salt Lake County.
(c) Notwithstanding Section [63-46b-15] 63G-4-402, a petition for review made to the district court under this section shall conform to the Utah Rules of Appellate Procedure.
(2) A county whose tax revenues are affected by the decision being reviewed shall be allowed to be a party in interest in the proceeding before the court.
Section 961. Section 59-1-610 is amended to read:
59-1-610
. Standard of review of appellate court.(1) When reviewing formal adjudicative proceedings commenced before the commission, the Court of Appeals or Supreme Court shall:
(a) grant the commission deference concerning its written findings of fact, applying a substantial evidence standard on review; and
(b) grant the commission no deference concerning its conclusions of law, applying a correction of error standard, unless there is an explicit grant of discretion contained in a statute at issue before the appellate court.
(2) This section supercedes Section [63-46b-16] 63G-4-403 pertaining to judicial review of formal adjudicative proceedings.
Section 962. Section 59-1-1302 is amended to read:
59-1-1302
. Definitions.(1) "Gross income" is as defined in Section 61, Internal Revenue Code.
(2) "Income tax" means a tax imposed under:
(a) Chapter 7, Corporate Franchise and Income Taxes; or
(b) Chapter 10, Individual Income Tax Act.
(3) "Income tax return" means a return filed under:
(a) Chapter 7, Corporate Franchise and Income Taxes; or
(b) Chapter 10, Individual Income Tax Act.
(4) "Listed transaction" means a reportable transaction that is the same as, or substantially similar to, a transaction or arrangement specifically identified as a listed transaction by the:
(a) United States Secretary of the Treasury in written materials interpreting the requirements of Section 6011, Internal Revenue Code; or
(b) commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(5) "Material advisor" is as defined in Section 6111, Internal Revenue Code.
(6) "Reportable transaction" means a transaction or arrangement that:
(a) is carried out through or invested in by one or more entities that:
(i) are organized in this state;
(ii) do business in this state;
(iii) derive gross income from sources within this state;
(iv) are subject to income tax; or
(v) are otherwise subject to the jurisdiction of this state; and
(b) is:
(i) a transaction or arrangement described in 26 C.F.R. Sec. 1.6011-4(b)(2) through (7); or
(ii) a reportable transaction as described by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(7) "Taxpayer" means a person that is required to file an income tax return.
(8) "Unitary group" is as defined in Section 59-7-101.
Section 963. Section 59-1-1303 is amended to read:
59-1-1303
. Taxpayer disclosure of reportable transactions.(1) A taxpayer is subject to this section for each taxable year in which:
(a) the taxpayer participates in a reportable transaction;
(b) the taxpayer:
(i) is included in a federal consolidated return under Sections 1501 and 1504(b), Internal Revenue Code; and
(ii) participates in a reportable transaction; or
(c) the taxpayer is a member of a group that:
(i) is a unitary group; and
(ii) participates in a reportable transaction.
(2) (a) A taxpayer described in Subsection (1) shall disclose a reportable transaction to the commission in a manner required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) If a taxpayer described in Subsection (1) is required to file a disclosure statement under 26 C.F.R. Sec. 1.6011-4, the taxpayer shall provide the commission a copy of that disclosure statement in a manner required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) For a listed transaction entered into on or after January 1, 2004, but on or before December 31, 2006, a disclosure statement required by this section shall be attached to:
(i) (A) the taxpayer's income tax return for the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007; and
(B) any amended income tax return that the taxpayer files for the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007; and
(ii) subject to Subsection (3)(b):
(A) the taxpayer's income tax return for any taxable year after the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007, for which there is a reduction in income tax as a result of the listed transaction; and
(B) any amended income tax return for any taxable year after the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007, for which there is a reduction in income tax as a result of the listed transaction.
(b) For purposes of Subsection (3)(a)(ii), a reduction in income tax as a result of a listed transaction includes a loss, credit, or deduction if the loss, credit, or deduction results from a listed transaction that is carried forward or carried back.
(4) For a reportable transaction entered into on or after January 1, 2004, a disclosure statement required by this section shall be attached to an amended income tax return filed on or after January 1, 2007, if the filing of the amended income tax return reflects a determination by the Internal Revenue Service of the federal income tax treatment of the reportable transaction.
(5) (a) For a reportable transaction entered into on or after January 1, 2007, a disclosure statement required by this section shall be attached to:
(i) (A) the taxpayer's income tax return for the taxable year during which the transaction was entered into; and
(B) any amended income tax return that the taxpayer files for the taxable year during which the transaction was entered into; and
(ii) subject to Subsection (5)(b):
(A) the taxpayer's income tax return for any taxable year after the taxable year during which the transaction was entered into, for which there is a reduction in income tax as a result of the reportable transaction; and
(B) any amended income tax return for any taxable year after the taxable year during which the transaction was entered into, for which there is a reduction in income tax as a result of the reportable transaction.
(b) For purposes of Subsection (5)(a)(ii), a reduction in income tax as a result of a reportable transaction includes a loss, credit, or deduction if the loss, credit, or deduction results from a reportable transaction that is carried forward or carried back.
Section 964. Section 59-1-1306 is amended to read:
59-1-1306
. Material advisor disclosure of reportable transactions.(1) (a) A material advisor shall disclose a reportable transaction to the commission on a form provided by the commission.
(b) The disclosure described in Subsection (1)(a):
(i) shall include information:
(A) identifying and describing the transaction; and
(B) describing any potential tax benefits expected to result from the transaction; and
(ii) may include information other than the information described in Subsection (1)(b)(i) as required by the commission.
(2) If a material advisor described in Subsection (1) is required to file a return disclosing a reportable transaction under Section 6111, Internal Revenue Code, the material advisor shall provide the commission a copy of that return.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules prescribing:
(a) the date a:
(i) disclosure required by Subsection (1) shall be filed with the commission; and
(ii) copy of a return required by Subsection (2) shall be filed with the commission;
(b) that only one person may be required to meet the requirements of Subsection (1) or (2) if two or more persons would otherwise be required to meet the requirements of Subsection (1) or (2); and
(c) exemptions from Subsection (1) or (2).
Section 965. Section 59-1-1307 is amended to read:
59-1-1307
. Material advisor maintenance of list.(1) For each reportable transaction, a material advisor shall maintain a list of the persons to which the material advisor provides material aid, assistance, or advice with respect to organizing, managing, promoting, selling, implementing, insuring, or carrying out a reportable transaction.
(2) The list described in Subsection (1) shall include:
(a) the name of each person described in Subsection (1) that is:
(i) a taxpayer;
(ii) (A) a taxpayer; and
(B) a member of a unitary group; or
(iii) (A) a taxpayer; and
(B) included in a federal consolidated return under Sections 1501 and 1504(b), Internal Revenue Code;
(b) the same information required to be contained in the list described in 26 C.F.R. Sec. 301.6112-1; and
(c) any additional information required by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) The list described in Subsection (1) shall be maintained in the same form and manner as the list described in 26 C.F.R. Sec. 301.6112-1.
(4) A material advisor required to maintain a list under Subsection (1) shall:
(a) make the list available to the commission upon written request by the commission; and
(b) retain the information that is required to be included on the list for seven years.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules prescribing that only one person may be required to meet the requirements of this section if two or more persons would otherwise be required to meet the requirements of this section.
Section 966. Section 59-2-102 is amended to read:
59-2-102
. Definitions.As used in this chapter and title:
(1) "Aerial applicator" means aircraft or rotorcraft used exclusively for the purpose of engaging in dispensing activities directly affecting agriculture or horticulture with an airworthiness certificate from the Federal Aviation Administration certifying the aircraft or rotorcraft's use for agricultural and pest control purposes.
(2) "Air charter service" means an air carrier operation which requires the customer to hire an entire aircraft rather than book passage in whatever capacity is available on a scheduled trip.
(3) "Air contract service" means an air carrier operation available only to customers who engage the services of the carrier through a contractual agreement and excess capacity on any trip and is not available to the public at large.
(4) "Aircraft" is as defined in Section 72-10-102.
(5) "Airline" means any air carrier operating interstate routes on a scheduled basis which offers to fly passengers or cargo on the basis of available capacity on regularly scheduled routes.
(6) "Assessment roll" means a permanent record of the assessment of property as assessed by the county assessor and the commission and may be maintained manually or as a computerized file as a consolidated record or as multiple records by type, classification, or categories.
(7) (a) "Certified revenue levy" means a property tax levy that provides the same amount of ad valorem property tax revenue as was collected for the prior year, plus new growth, but exclusive of revenue from collections from redemptions, interest, and penalties.
(b) For purposes of this Subsection (7), "ad valorem property tax revenue" does not include property tax revenue received by a taxing entity from personal property that is:
(i) assessed by a county assessor in accordance with Part 3, County Assessment; and
(ii) semiconductor manufacturing equipment.
(8) "County-assessed commercial vehicle" means:
(a) any commercial vehicle, trailer, or semitrailer which is not apportioned under Section 41-1a-301 and is not operated interstate to transport the vehicle owner's goods or property in furtherance of the owner's commercial enterprise;
(b) any passenger vehicle owned by a business and used by its employees for transportation as a company car or vanpool vehicle; and
(c) vehicles which are:
(i) especially constructed for towing or wrecking, and which are not otherwise used to transport goods, merchandise, or people for compensation;
(ii) used or licensed as taxicabs or limousines;
(iii) used as rental passenger cars, travel trailers, or motor homes;
(iv) used or licensed in this state for use as ambulances or hearses;
(v) especially designed and used for garbage and rubbish collection; or
(vi) used exclusively to transport students or their instructors to or from any private, public, or religious school or school activities.
(9) (a) Except as provided in Subsection (9)(b), for purposes of Section 59-2-801, "designated tax area" means a tax area created by the overlapping boundaries of only the following taxing entities:
(i) a county; and
(ii) a school district.
(b) Notwithstanding Subsection (9)(a), "designated tax area" includes a tax area created by the overlapping boundaries of:
(i) the taxing entities described in Subsection (9)(a); and
(ii) (A) a city or town if the boundaries of the school district under Subsection (9)(a) and the boundaries of the city or town are identical; or
(B) a special service district if the boundaries of the school district under Subsection (9)(a) are located entirely within the special service district.
(10) "Eligible judgment" means a final and unappealable judgment or order under Section 59-2-1330:
(a) that became a final and unappealable judgment or order no more than 14 months prior to the day on which the notice required by Subsection 59-2-919(4) is required to be mailed; and
(b) for which a taxing entity's share of the final and unappealable judgment or order is greater than or equal to the lesser of:
(i) $5,000; or
(ii) 2.5% of the total ad valorem property taxes collected by the taxing entity in the previous fiscal year.
(11) (a) "Escaped property" means any property, whether personal, land, or any improvements to the property, subject to taxation and is:
(i) inadvertently omitted from the tax rolls, assigned to the incorrect parcel, or assessed to the wrong taxpayer by the assessing authority;
(ii) undervalued or omitted from the tax rolls because of the failure of the taxpayer to comply with the reporting requirements of this chapter; or
(iii) undervalued because of errors made by the assessing authority based upon incomplete or erroneous information furnished by the taxpayer.
(b) Property which is undervalued because of the use of a different valuation methodology or because of a different application of the same valuation methodology is not "escaped property."
(12) "Fair market value" means the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts. For purposes of taxation, "fair market value" shall be determined using the current zoning laws applicable to the property in question, except in cases where there is a reasonable probability of a change in the zoning laws affecting that property in the tax year in question and the change would have an appreciable influence upon the value.
(13) "Farm machinery and equipment," for purposes of the exemption provided under Section 59-2-1101, means tractors, milking equipment and storage and cooling facilities, feed handling equipment, irrigation equipment, harvesters, choppers, grain drills and planters, tillage tools, scales, combines, spreaders, sprayers, haying equipment, and any other machinery or equipment used primarily for agricultural purposes; but does not include vehicles required to be registered with the Motor Vehicle Division or vehicles or other equipment used for business purposes other than farming.
(14) "Geothermal fluid" means water in any form at temperatures greater than 120 degrees centigrade naturally present in a geothermal system.
(15) "Geothermal resource" means:
(a) the natural heat of the earth at temperatures greater than 120 degrees centigrade; and
(b) the energy, in whatever form, including pressure, present in, resulting from, created by, or which may be extracted from that natural heat, directly or through a material medium.
(16) (a) "Goodwill" means:
(i) acquired goodwill that is reported as goodwill on the books and records:
(A) of a taxpayer; and
(B) that are maintained for financial reporting purposes; or
(ii) the ability of a business to:
(A) generate income:
(I) that exceeds a normal rate of return on assets; and
(II) resulting from a factor described in Subsection (16)(b); or
(B) obtain an economic or competitive advantage resulting from a factor described in Subsection (16)(b).
(b) The following factors apply to Subsection (16)(a)(ii):
(i) superior management skills;
(ii) reputation;
(iii) customer relationships;
(iv) patronage; or
(v) a factor similar to Subsections (16)(b)(i) through (iv).
(c) "Goodwill" does not include:
(i) the intangible property described in Subsection (20)(a) or (b);
(ii) locational attributes of real property, including:
(A) zoning;
(B) location;
(C) view;
(D) a geographic feature;
(E) an easement;
(F) a covenant;
(G) proximity to raw materials;
(H) the condition of surrounding property; or
(I) proximity to markets;
(iii) value attributable to the identification of an improvement to real property, including:
(A) reputation of the designer, builder, or architect of the improvement;
(B) a name given to, or associated with, the improvement; or
(C) the historic significance of an improvement; or
(iv) the enhancement or assemblage value specifically attributable to the interrelation of the existing tangible property in place working together as a unit.
(17) "Governing body" means:
(a) for a county, city, or town, the legislative body of the county, city, or town;
(b) for a local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, the local district's board of trustees;
(c) for a school district, the local board of education; or
(d) for a special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act:
(i) the legislative body of the county or municipality that created the special service district, to the extent that the county or municipal legislative body has not delegated authority to an administrative control board established under Section 17A-2-1326; or
(ii) the administrative control board, to the extent that the county or municipal legislative body has delegated authority to an administrative control board established under Section 17A-2-1326.
(18) (a) For purposes of Section 59-2-103:
(i) "household" means the association of persons who live in the same dwelling, sharing its furnishings, facilities, accommodations, and expenses; and
(ii) "household" includes married individuals, who are not legally separated, that have established domiciles at separate locations within the state.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining the term "domicile."
(19) (a) Except as provided in Subsection (19)(c), "improvement" means a building, structure, fixture, fence, or other item that is permanently attached to land, regardless of whether the title has been acquired to the land, if:
(i) (A) attachment to land is essential to the operation or use of the item; and
(B) the manner of attachment to land suggests that the item will remain attached to the land in the same place over the useful life of the item; or
(ii) removal of the item would:
(A) cause substantial damage to the item; or
(B) require substantial alteration or repair of a structure to which the item is attached.
(b) "Improvement" includes:
(i) an accessory to an item described in Subsection (19)(a) if the accessory is:
(A) essential to the operation of the item described in Subsection (19)(a); and
(B) installed solely to serve the operation of the item described in Subsection (19)(a); and
(ii) an item described in Subsection (19)(a) that:
(A) is temporarily detached from the land for repairs; and
(B) remains located on the land.
(c) Notwithstanding Subsections (19)(a) and (b), "improvement" does not include:
(i) an item considered to be personal property pursuant to rules made in accordance with Section 59-2-107;
(ii) a moveable item that is attached to land:
(A) for stability only; or
(B) for an obvious temporary purpose;
(iii) (A) manufacturing equipment and machinery; or
(B) essential accessories to manufacturing equipment and machinery;
(iv) an item attached to the land in a manner that facilitates removal without substantial damage to:
(A) the land; or
(B) the item; or
(v) a transportable factory-built housing unit as defined in Section 59-2-1502 if that transportable factory-built housing unit is considered to be personal property under Section 59-2-1503.
(20) "Intangible property" means:
(a) property that is capable of private ownership separate from tangible property, including:
(i) moneys;
(ii) credits;
(iii) bonds;
(iv) stocks;
(v) representative property;
(vi) franchises;
(vii) licenses;
(viii) trade names;
(ix) copyrights; and
(x) patents;
(b) a low-income housing tax credit; or
(c) goodwill.
(21) "Low-income housing tax credit" means:
(a) a federal low-income housing tax credit under Section 42, Internal Revenue Code; or
(b) a low-income housing tax credit under:
(i) Section 59-7-607; or
(ii) Section 59-10-1010.
(22) "Metalliferous minerals" includes gold, silver, copper, lead, zinc, and uranium.
(23) "Mine" means a natural deposit of either metalliferous or nonmetalliferous valuable mineral.
(24) "Mining" means the process of producing, extracting, leaching, evaporating, or otherwise removing a mineral from a mine.
(25) (a) "Mobile flight equipment" means tangible personal property that is:
(i) owned or operated by an:
(A) air charter service;
(B) air contract service; or
(C) airline; and
(ii) (A) capable of flight;
(B) attached to an aircraft that is capable of flight; or
(C) contained in an aircraft that is capable of flight if the tangible personal property is intended to be used:
(I) during multiple flights;
(II) during a takeoff, flight, or landing; and
(III) as a service provided by an air charter service, air contract service, or airline.
(b) (i) "Mobile flight equipment" does not include a spare part other than a spare engine that is rotated:
(A) at regular intervals; and
(B) with an engine that is attached to the aircraft.
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining the term "regular intervals."
(26) "Nonmetalliferous minerals" includes, but is not limited to, oil, gas, coal, salts, sand, rock, gravel, and all carboniferous materials.
(27) "Personal property" includes:
(a) every class of property as defined in Subsection (28) which is the subject of ownership and not included within the meaning of the terms "real estate" and "improvements";
(b) gas and water mains and pipes laid in roads, streets, or alleys;
(c) bridges and ferries;
(d) livestock which, for the purposes of the exemption provided under Section 59-2-1112, means all domestic animals, honeybees, poultry, fur-bearing animals, and fish; and
(e) outdoor advertising structures as defined in Section 72-7-502.
(28) (a) "Property" means property that is subject to assessment and taxation according to its value.
(b) "Property" does not include intangible property as defined in this section.
(29) "Public utility," for purposes of this chapter, means the operating property of a railroad, gas corporation, oil or gas transportation or pipeline company, coal slurry pipeline company, electrical corporation, telephone corporation, sewerage corporation, or heat corporation where the company performs the service for, or delivers the commodity to, the public generally or companies serving the public generally, or in the case of a gas corporation or an electrical corporation, where the gas or electricity is sold or furnished to any member or consumers within the state for domestic, commercial, or industrial use. Public utility also means the operating property of any entity or person defined under Section 54-2-1 except water corporations.
(30) "Real estate" or "real property" includes:
(a) the possession of, claim to, ownership of, or right to the possession of land;
(b) all mines, minerals, and quarries in and under the land, all timber belonging to individuals or corporations growing or being on the lands of this state or the United States, and all rights and privileges appertaining to these; and
(c) improvements.
(31) "Residential property," for the purposes of the reductions and adjustments under this chapter, means any property used for residential purposes as a primary residence. It does not include property used for transient residential use or condominiums used in rental pools.
(32) For purposes of Subsection 59-2-801(1)(e), "route miles" means the number of miles calculated by the commission that is:
(a) measured in a straight line by the commission; and
(b) equal to the distance between a geographical location that begins or ends:
(i) at a boundary of the state; and
(ii) where an aircraft:
(A) takes off; or
(B) lands.
(33) (a) "State-assessed commercial vehicle" means:
(i) any commercial vehicle, trailer, or semitrailer which operates interstate or intrastate to transport passengers, freight, merchandise, or other property for hire; or
(ii) any commercial vehicle, trailer, or semitrailer which operates interstate and transports the vehicle owner's goods or property in furtherance of the owner's commercial enterprise.
(b) "State-assessed commercial vehicle" does not include vehicles used for hire which are specified in Subsection (8)(c) as county-assessed commercial vehicles.
(34) "Taxable value" means fair market value less any applicable reduction allowed for residential property under Section 59-2-103.
(35) "Tax area" means a geographic area created by the overlapping boundaries of one or more taxing entities.
(36) "Taxing entity" means any county, city, town, school district, special taxing district, local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, or other political subdivision of the state with the authority to levy a tax on property.
(37) "Tax roll" means a permanent record of the taxes charged on property, as extended on the assessment roll and may be maintained on the same record or records as the assessment roll or may be maintained on a separate record properly indexed to the assessment roll. It includes tax books, tax lists, and other similar materials.
Section 967. Section 59-2-103.5 is amended to read:
59-2-103.5
. Procedures to obtain an exemption for residential property.(1) Subject to the other provisions of this section, a county legislative body may by ordinance require that in order for residential property to be allowed a residential exemption in accordance with Section 59-2-103, an owner of the residential property shall file with the county board of equalization a statement:
(a) on a form prescribed by the commission by rule;
(b) signed by all of the owners of the residential property;
(c) certifying that the residential property is residential property; and
(d) containing other information as required by the commission by rule.
(2) (a) Subject to Section 59-2-103 and except as provided in Subsection (3), a county board of equalization shall allow an owner described in Subsection (1) a residential exemption for the residential property described in Subsection (1) if:
(i) the county legislative body enacts the ordinance described in Subsection (1); and
(ii) the county board of equalization determines that the requirements of Subsection (1) are met.
(b) A county board of equalization may require an owner of the residential property described in Subsection (1) to file the statement described in Subsection (1) only if:
(i) that residential property was ineligible for the residential exemption authorized under Section 59-2-103 during the calendar year immediately preceding the calendar year for which the owner is seeking to claim the residential exemption for that residential property;
(ii) an ownership interest in that residential property changes; or
(iii) the county board of equalization determines that there is reason to believe that that residential property no longer qualifies for the residential exemption in accordance with Section 59-2-103.
(3) Notwithstanding Subsection (2)(a), if a county legislative body does not enact an ordinance requiring an owner to file a statement in accordance with this section, the county board of equalization:
(a) may not require an owner to file a statement for residential property to be eligible for a residential exemption in accordance with Section 59-2-103; and
(b) shall allow a residential exemption for residential property in accordance with Section 59-2-103.
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing:
(i) the form for the statement described in Subsection (1); and
(ii) the contents of the form for the statement described in Subsection (1).
(b) The commission shall make the form described in Subsection (4)(a) available to counties.
Section 968. Section 59-2-107 is amended to read:
59-2-107
. Classes of personal property -- Rulemaking authority.The commission shall make rules:
(1) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(2) defining classes of items considered to be personal property for purposes of this chapter;
(3) defining items that fall into the classes established under Subsection (2); and
(4) defining any class or item as personal property if the commission defined that class or item as personal property prior to January 1, 2004, by:
(a) a rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) a published decision of the commission; or
(c) an official schedule published by the commission.
Section 969. Section 59-2-202 is amended to read:
59-2-202
. Statement of taxpayer -- Extension of time for filing -- Assessment without statement -- Penalty for failure to file statement or information -- Waiver, reduction, or compromise of penalty -- Appeals.(1) (a) A person, or an officer or agent of that person, owning or operating property described in Subsection (1)(b) shall, on or before March 1 of each year, file with the commission a statement:
(i) signed and sworn to by the person, officer, or agent;
(ii) showing in detail all real property and tangible personal property located in the state that the person owns or operates;
(iii) containing the number of miles of taxable tangible personal property in each county:
(A) that the person owns or operates; and
(B) as valued on January 1 of the year for which the person, officer, or agent is furnishing the statement; and
(iv) containing any other information the commission requires.
(b) Subsection (1)(a) applies to:
(i) the following property located in the state:
(A) a public utility;
(B) an airline;
(C) an air charter service; or
(D) an air contract service; or
(ii) the following property located in more than one county in the state:
(A) a pipeline company;
(B) a power company;
(C) a canal company;
(D) an irrigation company; or
(E) a telephone company.
(c) (i) The commission may allow an extension for filing the statement under Subsection (1)(a) for a time period not exceeding 30 days, unless the commission determines that extraordinary circumstances require a longer period of extension.
(ii) The commission shall grant a person, or an officer or agent of that person, an extension for filing the statement under Subsection (1)(a) for a time period not exceeding 15 days if:
(A) a federal regulatory agency requires the taxpayer to file a statement that contains the same information as the statement under Subsection (1)(a); and
(B) the person, or an officer or agent of that person, requests the commission to grant the extension.
(2) The commission shall assess and list the property described in Subsection (1)(b) using the best information obtainable by the commission if a person, or an officer or agent of that person, fails to file the statement required under Subsection (1)(a) on or before the later of:
(a) March 1; or
(b) if the commission allows an extension under Subsection (1)(c) for filing the statement, the day after the last day of the extension period.
(3) (a) Except as provided in Subsection (3)(c), the commission shall assess a person a penalty as provided in Subsection (3)(b), if the person, or an officer or agent of that person, fails to file:
(i) the statement required under Subsection (1)(a) on or before the later of:
(A) March 1; or
(B) if the commission allows an extension under Subsection (1)(c) for filing the statement, the day after the last day of the extension period; or
(ii) any other information the commission determines to be necessary to:
(A) establish valuations for assessment purposes; or
(B) apportion an assessment.
(b) The penalty described in Subsection (3)(a) is an amount equal to the greater of:
(i) 10% of the person's estimated tax liability under this chapter for the current calendar year not to exceed $50,000; or
(ii) $100.
(c) (i) Notwithstanding Subsections (3)(a) and (4), the commission may waive, reduce, or compromise a penalty imposed under this section if the commission finds there are reasonable grounds for the waiver, reduction, or compromise.
(ii) If the commission waives, reduces, or compromises a penalty under Subsection (3)(c)(i), the commission shall make a record of the grounds for waiving, reducing, or compromising the penalty.
(4) The county treasurer shall collect the penalty imposed under Subsection (3) as provided in Section 59-2-1308.
(5) A person subject to a penalty under Subsection (3) may appeal the penalty according to procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 970. Section 59-2-207 is amended to read:
59-2-207
. Statements for mines -- Penalty for failure to file statement or information -- Assessment without statement -- Penalty -- Waiver, reduction, or compromise of penalty -- Extension of time for filing statement -- Appeals.(1) (a) A person, or an officer or agent of that person, owning or operating property described in Subsection (1)(b) shall file with the commission, on a form prescribed by the commission, a sworn statement on or before March 1 of each year:
(i) showing in detail all real property and tangible personal property located in the state that the person owns or operates; and
(ii) containing any other information the commission requires.
(b) Subsection (1)(a) applies to the following property:
(i) a mine;
(ii) a mining claim; or
(iii) a valuable mineral deposit, including lands containing coal or hydrocarbons.
(c) (i) The commission may allow an extension for filing the statement under Subsection (1)(a) for a time period not exceeding 30 days, unless the commission determines that extraordinary circumstances require a longer period of extension.
(ii) The commission shall grant a person, or an officer or agent of that person, an extension for filing the statement under Subsection (1)(a) for a time period not exceeding 15 days if:
(A) a federal regulatory agency requires the taxpayer to file a statement that contains the same information as the statement under Subsection (1)(a); and
(B) the person, or an officer or agent of that person, requests the commission to grant the extension.
(2) The commission shall assess and list the property described in Subsection (1)(b) using the best information obtainable by the commission if a person, or an officer or agent of that person, fails to file the statement required under Subsection (1)(a) on or before the later of:
(a) March 1; or
(b) if the commission allows an extension under Subsection (1)(c) for filing the statement, the day after the last day of the extension period.
(3) (a) Except as provided in Subsection (3)(c), the commission shall assess a person a penalty as provided in Subsection (3)(b), if the person, or an officer or agent of that person, fails to file:
(i) the statement required under Subsection (1)(a) on or before the later of:
(A) March 1; or
(B) if the commission allows an extension under Subsection (1)(c) for filing the statement, the day after the last day of the extension period; or
(ii) any other information the commission determines to be necessary to:
(A) establish valuations for assessment purposes; or
(B) apportion an assessment.
(b) The penalty described in Subsection (3)(a) is an amount equal to the greater of:
(i) 10% of the person's estimated tax liability under this chapter for the current calendar year not to exceed $50,000; or
(ii) $100.
(c) (i) Notwithstanding Subsections (3)(a) and (4), the commission may waive, reduce, or compromise a penalty imposed under this section if the commission finds there are reasonable grounds for the waiver, reduction, or compromise.
(ii) If the commission waives, reduces, or compromises a penalty under Subsection (3)(c)(i), the commission shall make a record of the grounds for waiving, reducing, or compromising the penalty.
(4) The county treasurer shall collect the penalty imposed under Subsection (3) as provided in Section 59-2-1308.
(5) A person subject to a penalty under Subsection (3) may appeal the penalty according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 971. Section 59-2-307 is amended to read:
59-2-307
. Refusal by taxpayer to file signed statement -- Penalty -- Assessor to estimate value -- Reporting information to other counties.(1) (a) Each person who fails to file the signed statement required by Section 59-2-306, fails to file the signed statement with respect to name and place of residence, or fails to appear and testify when requested by the assessor, shall pay a penalty equal to 10% of the estimated tax due, but not less than $100 for each failure to file a signed and completed statement.
(b) Each penalty under Subsection (1)(a) shall be collected in the manner provided by Sections 59-2-1302 and 59-2-1303, except as otherwise provided for in this section, or by a judicial proceeding brought in the name of the assessor.
(c) All money recovered by any assessor under this section shall be paid into the county treasury.
(2) (a) The penalty imposed by Subsection (1)(a) may not be waived or reduced by the assessor, county, county Board of Equalization, or commission except pursuant to a procedure for the review and approval of reductions and waivers adopted by county ordinance, or by administrative rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) The penalty under Subsection (1)(a) for failure to appear and testify when requested by the assessor may not be imposed until 30 days after the certified postmark date of mailing of a subsequent certified notice.
(3) (a) If any owner neglects or refuses to file the signed statement within 30 days of the date the first county request was sent as required under Section 59-2-306, the assessor shall:
(i) make:
(A) a subsequent request by certified mail for the signed statement, informing the owner of the consequences of not filing a signed statement; and
(B) a record of the failure to file and an estimate of the value of the property of the owner based on known facts and circumstances; and
(ii) impose a fee for the actual and necessary expenses of the certified mailing under Subsection (3)(a)(i)(A).
(b) The value fixed by the assessor may not be reduced by the county board of equalization or by the commission.
(4) If the signed statement discloses property in any other county, the assessor shall file the signed statement and send a certified copy to the assessor of each county in which the property is located.
Section 972. Section 59-2-309 is amended to read:
59-2-309
. Property escaping assessment -- Duties of assessing authority -- Property willfully concealed -- Penalties.(1) Any escaped property may be assessed by the original assessing authority at any time as far back as five years prior to the time of discovery, in which case the assessor shall enter the assessments on the tax rolls and follow the procedures established under Part 13 of this chapter.
(2) Any property found to be willfully concealed, removed, transferred, or misrepresented by its owner or agent in order to evade taxation is subject to a penalty equal to the tax on its value, and neither the penalty nor assessment may be reduced or waived by the assessor, county, county Board of Equalization, or the commission, except pursuant to a procedure for the review and approval of waivers adopted by county ordinance, or by administrative rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 973. Section 59-2-405.2 is amended to read:
59-2-405.2
. Definitions -- Uniform statewide fee on certain tangible personal property -- Distribution of revenues -- Rulemaking authority -- Determining the length of a vessel.(1) As used in this section:
(a) (i) Except as provided in Subsection (1)(a)(ii), "all-terrain vehicle" means a motor vehicle that:
(A) is an:
(I) all-terrain type I vehicle as defined in Section 41-22-2; or
(II) all-terrain type II vehicle as defined in Section 41-22-2;
(B) is required to be registered in accordance with Title 41, Chapter 22, Off-Highway Vehicles; and
(C) has:
(I) an engine with more than 150 cubic centimeters displacement;
(II) a motor that produces more than five horsepower; or
(III) an electric motor; and
(ii) notwithstanding Subsection (1)(a)(i), "all-terrain vehicle" does not include a snowmobile.
(b) "Camper" means a camper:
(i) as defined in Section 41-1a-102; and
(ii) that is required to be registered in accordance with Title 41, Chapter 1a, Part 2, Registration.
(c) (i) "Canoe" means a vessel that:
(A) is long and narrow;
(B) has curved sides; and
(C) is tapered:
(I) to two pointed ends; or
(II) to one pointed end and is blunt on the other end; and
(ii) "canoe" includes:
(A) a collapsible inflatable canoe;
(B) a kayak;
(C) a racing shell; or
(D) a rowing scull.
(d) "Dealer" is as defined in Section 41-1a-102.
(e) "Jon boat" means a vessel that:
(i) has a square bow; and
(ii) has a flat bottom.
(f) "Motor vehicle" is as defined in Section 41-22-2.
(g) "Other motorcycle" means a motor vehicle that:
(i) is:
(A) a motorcycle as defined in Section 41-1a-102; and
(B) designed primarily for use and operation over unimproved terrain;
(ii) is required to be registered in accordance with Title 41, Chapter 1a, Part 2, Registration; and
(iii) has:
(A) an engine with more than 150 cubic centimeters displacement; or
(B) a motor that produces more than five horsepower.
(h) (i) "Other trailer" means a portable vehicle without motive power that is primarily used:
(A) to transport tangible personal property; and
(B) for a purpose other than a commercial purpose; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (1)(h)(i)(B), the commission may by rule define what constitutes a purpose other than a commercial purpose.
(i) "Outboard motor" is as defined in Section 41-1a-102.
(j) "Personal watercraft" means a personal watercraft:
(i) as defined in Section 73-18-2; and
(ii) that is required to be registered in accordance with Title 73, Chapter 18, State Boating Act.
(k) (i) "Pontoon" means a vessel that:
(A) is:
(I) supported by one or more floats; and
(II) propelled by either inboard or outboard power; and
(B) is not:
(I) a houseboat; or
(II) a collapsible inflatable vessel; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "houseboat".
(l) "Qualifying adjustment, exemption, or reduction" means an adjustment, exemption, or reduction:
(i) of all or a portion of a qualifying payment;
(ii) granted by a county during the refund period; and
(iii) received by a qualifying person.
(m) (i) "Qualifying payment" means the payment made:
(A) of a uniform statewide fee in accordance with this section:
(I) by a qualifying person;
(II) to a county; and
(III) during the refund period; and
(B) on an item of qualifying tangible personal property; and
(ii) if a qualifying person received a qualifying adjustment, exemption, or reduction for an item of qualifying tangible personal property, the qualifying payment for that qualifying tangible personal property is equal to the difference between:
(A) the payment described in this Subsection (1)(m) for that item of qualifying tangible personal property; and
(B) the amount of the qualifying adjustment, exemption, or reduction.
(n) "Qualifying person" means a person that paid a uniform statewide fee:
(i) during the refund period;
(ii) in accordance with this section; and
(iii) on an item of qualifying tangible personal property.
(o) "Qualifying tangible personal property" means a:
(i) qualifying vehicle; or
(ii) qualifying watercraft.
(p) "Qualifying vehicle" means:
(i) an all-terrain vehicle with an engine displacement that is 100 or more cubic centimeters but 150 or less cubic centimeters;
(ii) an other motorcycle with an engine displacement that is 100 or more cubic centimeters but 150 or less cubic centimeters;
(iii) a small motor vehicle with an engine displacement that is 100 or more cubic centimeters but 150 or less cubic centimeters;
(iv) a snowmobile with an engine displacement that is 100 or more cubic centimeters but 150 or less cubic centimeters; or
(v) a street motorcycle with an engine displacement that is 100 or more cubic centimeters but 150 or less cubic centimeters.
(q) "Qualifying watercraft" means a:
(i) canoe;
(ii) collapsible inflatable vessel;
(iii) jon boat;
(iv) pontoon;
(v) sailboat; or
(vi) utility boat.
(r) "Refund period" means the time period:
(i) beginning on January 1, 2006; and
(ii) ending on December 29, 2006.
(s) "Sailboat" means a sailboat as defined in Section 73-18-2.
(t) (i) "Small motor vehicle" means a motor vehicle that:
(A) is required to be registered in accordance with Title 41, Motor Vehicles; and
(B) has:
(I) an engine with 150 or less cubic centimeters displacement; or
(II) a motor that produces five or less horsepower; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule develop a process for an owner of a motor vehicle to certify whether the motor vehicle has:
(A) an engine with 150 or less cubic centimeters displacement; or
(B) a motor that produces five or less horsepower.
(u) "Snowmobile" means a motor vehicle that:
(i) is a snowmobile as defined in Section 41-22-2;
(ii) is required to be registered in accordance with Title 41, Chapter 22, Off-Highway Vehicles; and
(iii) has:
(A) an engine with more than 150 cubic centimeters displacement; or
(B) a motor that produces more than five horsepower.
(v) "Street motorcycle" means a motor vehicle that:
(i) is:
(A) a motorcycle as defined in Section 41-1a-102; and
(B) designed primarily for use and operation on highways;
(ii) is required to be registered in accordance with Title 41, Chapter 1a, Part 2, Registration; and
(iii) has:
(A) an engine with more than 150 cubic centimeters displacement; or
(B) a motor that produces more than five horsepower.
(w) "Tangible personal property owner" means a person that owns an item of qualifying tangible personal property.
(x) "Tent trailer" means a portable vehicle without motive power that:
(i) is constructed with collapsible side walls that:
(A) fold for towing by a motor vehicle; and
(B) unfold at a campsite;
(ii) is designed as a temporary dwelling for travel, recreational, or vacation use;
(iii) is required to be registered in accordance with Title 41, Chapter 1a, Part 2, Registration; and
(iv) does not require a special highway movement permit when drawn by a self-propelled motor vehicle.
(y) (i) Except as provided in Subsection (1)(y)(ii), "travel trailer" means a travel trailer:
(A) as defined in Section 41-1a-102; and
(B) that is required to be registered in accordance with Title 41, Chapter 1a, Part 2, Registration; and
(ii) notwithstanding Subsection (1)(y)(i), "travel trailer" does not include:
(A) a camper; or
(B) a tent trailer.
(z) (i) "Utility boat" means a vessel that:
(A) has:
(I) two or three bench seating;
(II) an outboard motor; and
(III) a hull made of aluminum, fiberglass, or wood; and
(B) does not have:
(I) decking;
(II) a permanent canopy; or
(III) a floor other than the hull; and
(ii) notwithstanding Subsection (1)(z)(i), "utility boat" does not include a collapsible inflatable vessel.
(aa) "Vessel" means a vessel:
(i) as defined in Section 73-18-2, including an outboard motor of the vessel; and
(ii) that is required to be registered in accordance with Title 73, Chapter 18, State Boating Act.
(2) (a) In accordance with Utah Constitution Article XIII, Section 2, Subsection (6), beginning on January 1, 2006, the tangible personal property described in Subsection (2)(b) is:
(i) exempt from the tax imposed by Section 59-2-103; and
(ii) in lieu of the tax imposed by Section 59-2-103, subject to uniform statewide fees as provided in this section.
(b) The following tangible personal property applies to Subsection (2)(a) if that tangible personal property is required to be registered with the state:
(i) an all-terrain vehicle;
(ii) a camper;
(iii) an other motorcycle;
(iv) an other trailer;
(v) a personal watercraft;
(vi) a small motor vehicle;
(vii) a snowmobile;
(viii) a street motorcycle;
(ix) a tent trailer;
(x) a travel trailer; and
(xi) a vessel if that vessel is less than 31 feet in length as determined under Subsection (6).
(3) For purposes of this section, the uniform statewide fees are:
(a) for an all-terrain vehicle, an other motorcycle, or a snowmobile:
Age of All-Terrain Vehicle, Other Motorcycle, or Snowmobile Uniform Statewide Fee
12 or more years $10
9 or more years but less than 12 years $20
6 or more years but less than 9 years $30
3 or more years but less than 6 years $35
Less than 3 years $45
(b) for a camper or a tent trailer:
Age of Camper or Tent Trailer Uniform Statewide Fee
12 or more years $10
9 or more years but less than 12 years $25
6 or more years but less than 9 years $35
3 or more years but less than 6 years $50
Less than 3 years $70
(c) for an other trailer:
Age of Other Trailer Uniform Statewide Fee
12 or more years $10
9 or more years but less than 12 years $15
6 or more years but less than 9 years $20
3 or more years but less than 6 years $25
Less than 3 years $30
(d) for a personal watercraft:
Age of Personal Watercraft Uniform Statewide Fee
12 or more years $10
9 or more years but less than 12 years $25
6 or more years but less than 9 years $35
3 or more years but less than 6 years $45
Less than 3 years $55
(e) for a small motor vehicle:
Age of Small Motor Vehicle Uniform Statewide Fee
6 or more years $10
3 or more years but less than 6 years $15
Less than 3 years $25
(f) for a street motorcycle:
Age of Street Motorcycle Uniform Statewide Fee
12 or more years $10
9 or more years but less than 12 years $35
6 or more years but less than 9 years $50
3 or more years but less than 6 years $70
Less than 3 years $95
(g) for a travel trailer:
Age of Travel Trailer Uniform Statewide Fee
12 or more years $20
9 or more years but less than 12 years $65
6 or more years but less than 9 years $90
3 or more years but less than 6 years $135
Less than 3 years $175
(h) $10 regardless of the age of the vessel if the vessel is:
(i) less than 15 feet in length;
(ii) a canoe;
(iii) a jon boat; or
(iv) a utility boat;
(i) for a collapsible inflatable vessel, pontoon, or sailboat, regardless of age:
Length of Vessel Uniform Statewide Fee
15 feet or more in length but less than 19 feet in length $15
19 feet or more in length but less than 23 feet in length $25
23 feet or more in length but less than 27 feet in length $40
27 feet or more in length but less than 31 feet in length $75
(j) for a vessel, other than a canoe, collapsible inflatable vessel, jon boat, pontoon, sailboat, or utility boat, that is 15 feet or more in length but less than 19 feet in length:
Age of Vessel Uniform Statewide Fee
12 or more years $25
9 or more years but less than 12 years $65
6 or more years but less than 9 years $80
3 or more years but less than 6 years $110
Less than 3 years $150
(k) for a vessel, other than a canoe, collapsible inflatable vessel, jon boat, pontoon, sailboat, or utility boat, that is 19 feet or more in length but less than 23 feet in length:
Age of Vessel Uniform Statewide Fee
12 or more years $50
9 or more years but less than 12 years $120
6 or more years but less than 9 years $175
3 or more years but less than 6 years $220
Less than 3 years $275
(l) for a vessel, other than a canoe, collapsible inflatable vessel, jon boat, pontoon, sailboat, or utility boat, that is 23 feet or more in length but less than 27 feet in length:
Age of Vessel Uniform Statewide Fee
12 or more years $100
9 or more years but less than 12 years $180
6 or more years but less than 9 years $240
3 or more years but less than 6 years $310
Less than 3 years $400
(m) for a vessel, other than a canoe, collapsible inflatable vessel, jon boat, pontoon, sailboat, or utility boat, that is 27 feet or more in length but less than 31 feet in length:
Age of Vessel Uniform Statewide Fee
12 or more years $120
9 or more years but less than 12 years $250
6 or more years but less than 9 years $350
3 or more years but less than 6 years $500
Less than 3 years $700
(4) Notwithstanding Section 59-2-407, tangible personal property subject to the uniform statewide fees imposed by this section that is brought into the state shall, as a condition of registration, be subject to the uniform statewide fees unless all property taxes or uniform fees imposed by the state of origin have been paid for the current calendar year.
(5) (a) The revenues collected in each county from the uniform statewide fees imposed by this section shall be distributed by the county to each taxing entity in which each item of tangible personal property subject to the uniform statewide fees is located in the same proportion in which revenues collected from the ad valorem property tax are distributed.
(b) Each taxing entity described in Subsection (5)(a) that receives revenues from the uniform statewide fees imposed by this section shall distribute the revenues in the same proportion in which revenues collected from the ad valorem property tax are distributed.
(6) (a) For purposes of the uniform statewide fee imposed by this section, the length of a vessel shall be determined as provided in this Subsection (6).
(b) (i) Except as provided in Subsection (6)(b)(ii), the length of a vessel shall be measured as follows:
(A) the length of a vessel shall be measured in a straight line; and
(B) the length of a vessel is equal to the distance between the bow of the vessel and the stern of the vessel.
(ii) Notwithstanding Subsection (6)(b)(i), the length of a vessel may not include the length of:
(A) a swim deck;
(B) a ladder;
(C) an outboard motor; or
(D) an appurtenance or attachment similar to Subsections (6)(b)(ii)(A) through (C) as determined by the commission by rule.
(iii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes an appurtenance or attachment similar to Subsections (6)(b)(ii)(A) through (C).
(c) The length of a vessel:
(i) (A) for a new vessel, is the length:
(I) listed on the manufacturer's statement of origin if the length of the vessel measured under Subsection (6)(b) is equal to the length of the vessel listed on the manufacturer's statement of origin; or
(II) listed on a form submitted to the commission by a dealer in accordance with Subsection (6)(d) if the length of the vessel measured under Subsection (6)(b) is not equal to the length of the vessel listed on the manufacturer's statement of origin; or
(B) for a vessel other than a new vessel, is the length:
(I) corresponding to the model number if the length of the vessel measured under Subsection (6)(b) is equal to the length of the vessel determined by reference to the model number; or
(II) listed on a form submitted to the commission by an owner of the vessel in accordance with Subsection (6)(d) if the length of the vessel measured under Subsection (6)(b) is not equal to the length of the vessel determined by reference to the model number; and
(ii) (A) is determined at the time of the:
(I) first registration as defined in Section 41-1a-102 that occurs on or after January 1, 2006; or
(II) first renewal of registration that occurs on or after January 1, 2006; and
(B) may be determined after the time described in Subsection (6)(c)(ii)(A) only if the commission requests that a dealer or an owner submit a form to the commission in accordance with Subsection (6)(d).
(d) (i) A form under Subsection (6)(c) shall:
(A) be developed by the commission;
(B) be provided by the commission to:
(I) a dealer; or
(II) an owner of a vessel;
(C) provide for the reporting of the length of a vessel;
(D) be submitted to the commission at the time the length of the vessel is determined in accordance with Subsection (6)(c)(ii);
(E) be signed by:
(I) if the form is submitted by a dealer, that dealer; or
(II) if the form is submitted by an owner of the vessel, an owner of the vessel; and
(F) include a certification that the information set forth in the form is true.
(ii) A certification made under Subsection (6)(d)(i)(F) is considered as if made under oath and subject to the same penalties as provided by law for perjury.
(iii) (A) A dealer or an owner that submits a form to the commission under Subsection (6)(c) is considered to have given the dealer's or owner's consent to an audit or review by:
(I) the commission;
(II) the county assessor; or
(III) the commission and the county assessor.
(B) The consent described in Subsection (6)(d)(iii)(A) is a condition to the acceptance of any form.
(7) (a) A county that collected a qualifying payment from a qualifying person during the refund period shall issue a refund to the qualifying person as described in Subsection (7)(b) if:
(i) the difference described in Subsection (7)(b) is $1 or more; and
(ii) the qualifying person submitted a form in accordance with Subsections (7)(c) and (d).
(b) The refund amount shall be calculated as follows:
(i) for a qualifying vehicle, the refund amount is equal to the difference between:
(A) the qualifying payment the qualifying person paid on the qualifying vehicle during the refund period; and
(B) the amount of the statewide uniform fee:
(I) for that qualifying vehicle; and
(II) that the qualifying person would have been required to pay:
(Aa) during the refund period; and
(Bb) in accordance with this section had Section 1, Chapter 3, Laws of Utah 2006, Fifth Special Session, been in effect during the refund period; and
(ii) for a qualifying watercraft, the refund amount is equal to the difference between:
(A) the qualifying payment the qualifying person paid on the qualifying watercraft during the refund period; and
(B) the amount of the statewide uniform fee:
(I) for that qualifying watercraft;
(II) that the qualifying person would have been required to pay:
(Aa) during the refund period; and
(Bb) in accordance with this section had Section 1, Chapter 3, Laws of Utah 2006, Fifth Special Session, been in effect during the refund period.
(c) Before the county issues a refund to the qualifying person in accordance with Subsection (7)(a) the qualifying person shall submit a form to the county to verify the qualifying person is entitled to the refund.
(d) (i) A form under Subsection (7)(c) or (8) shall:
(A) be developed by the commission;
(B) be provided by the commission to the counties;
(C) be provided by the county to the qualifying person or tangible personal property owner;
(D) provide for the reporting of the following:
(I) for a qualifying vehicle:
(Aa) the type of qualifying vehicle; and
(Bb) the amount of cubic centimeters displacement;
(II) for a qualifying watercraft:
(Aa) the length of the qualifying watercraft;
(Bb) the age of the qualifying watercraft; and
(Cc) the type of qualifying watercraft;
(E) be signed by the qualifying person or tangible personal property owner; and
(F) include a certification that the information set forth in the form is true.
(ii) A certification made under Subsection (7)(d)(i)(F) is considered as if made under oath and subject to the same penalties as provided by law for perjury.
(iii) (A) A qualifying person or tangible personal property owner that submits a form to a county under Subsection (7)(c) or (8) is considered to have given the qualifying person's consent to an audit or review by:
(I) the commission;
(II) the county assessor; or
(III) the commission and the county assessor.
(B) The consent described in Subsection (7)(d)(iii)(A) is a condition to the acceptance of any form.
(e) The county shall make changes to the commission's records with the information received by the county from the form submitted in accordance with Subsection (7)(c).
(8) A county shall change its records regarding an item of qualifying tangible personal property if the tangible personal property owner submits a form to the county in accordance with Subsection (7)(d).
(9) (a) For purposes of this Subsection (9) "owner of tangible personal property" means a person that was required to pay a uniform statewide fee:
(i) during the refund period;
(ii) in accordance with this section; and
(iii) on an item of tangible personal property subject to the uniform statewide fees imposed by this section.
(b) A county that collected revenues from uniform statewide fees imposed by this section during the refund period shall notify an owner of tangible personal property:
(i) of the tangible personal property classification changes made to this section pursuant to Section 1, Chapter 3, Laws of Utah 2006, Fifth Special Session;
(ii) that the owner of tangible personal property may obtain and file a form to modify the county's records regarding the owner's tangible personal property; and
(iii) that the owner may be entitled to a refund pursuant to Subsection (7).
Section 974. Section 59-2-406 is amended to read:
59-2-406
. Collection of uniform fees and other motor vehicle fees.(1) (a) For the purposes of efficiency in the collection of the uniform fee required by this section, the commission shall enter into a contract for the collection of the uniform fees required under Sections 59-2-405, 59-2-405.1, 59-2-405.2, and 59-2-405.3, and certain fees required by Title 41, Motor Vehicles.
(b) The contract required by this section shall, at the county's option, provide for one of the following collection agreements:
(i) the collection by the commission of:
(A) the uniform fees required under Sections 59-2-405, 59-2-405.1, 59-2-405.2, and 59-2-405.3; and
(B) all fees listed in Subsection (1)(c); or
(ii) the collection by the county of:
(A) the uniform fees required under Sections 59-2-405, 59-2-405.1, 59-2-405.2, and 59-2-405.3; and
(B) all fees listed in Subsection (1)(c).
(c) For purposes of Subsections (1)(b)(i)(B) and (1)(b)(ii)(B), the fees that are subject to the contractual agreement required by this section are the following fees imposed by Title 41, Motor Vehicles:
(i) registration fees for vehicles, mobile homes, manufactured homes, boats, and off-highway vehicles, with the exception of fleet and proportional registration;
(ii) title fees for vehicles, mobile homes, manufactured homes, boats, and off-highway vehicles;
(iii) plate fees for vehicles;
(iv) permit fees; and
(v) impound fees.
(d) A county may change the election it makes pursuant to Subsection (1)(b) by providing written notice of the change to the commission at least 18 months before the change shall take effect.
(2) The contract shall provide that the party contracting to perform services shall:
(a) be responsible for the collection of:
(i) the uniform fees under Sections 59-2-405, 59-2-405.1, 59-2-405.2, and 59-2-405.3; and
(ii) any fees described in Subsection (1)(c) as agreed to in the contract;
(b) utilize the documents and forms, guidelines, practices, and procedures that meet the contract specifications;
(c) meet the performance standards and comply with applicable training requirements specified in the rules made under Subsection (8)(a); and
(d) be subject to a penalty of 1/2 the difference between the reimbursement fee specified under Subsection (3) and the reimbursement fee for fiscal year 1997-98 if performance is below the performance standards specified in the rules made under Subsection (8)(a).
(3) (a) The commission shall recommend a reimbursement fee for collecting the fees as provided in Subsection (2)(a), except that the commission may not collect a reimbursement fee on a state-assessed commercial vehicle described in Subsection 59-2-405.1(2)(a)(ii).
(b) The reimbursement fee shall be based on two dollars per standard unit for the first 5,000 standard units in each county and one dollar per standard unit for all other standard units and shall be annually adjusted by the commission beginning July 1, 1999.
(c) The adjustment shall be equal to any increase in the Consumer Price Index for all urban consumers, prepared by the United States Bureau of Labor Statistics, during the preceding calendar year.
(d) The reimbursement fees under this Subsection (3) shall be appropriated by the Legislature.
(4) All counties that elect to collect the uniform fees described in Subsection (1)(b)(ii)(A) and any other fees described in Subsection (1)(c) as provided by contract shall be subject to similar contractual terms.
(5) The party performing the collection services by contract shall use appropriate automated systems software and equipment compatible with the system used by the other contracting party in order to ensure the integrity of the current motor vehicle data base and county tax systems, or successor data bases and systems.
(6) If the county elects not to collect the uniform fees described in Subsection (1)(b)(ii)(A) and the fees described in Subsection (1)(c):
(a) the commission shall:
(i) collect the uniform fees described in Subsection (1)(b)(ii)(A) and the fees described in Subsection (1)(c) in each county or regional center as negotiated by the counties with the commission in accordance with the requirements of this section; and
(ii) provide information to the county in a format and media consistent with the county's requirements; and
(b) the county shall pay the commission a reimbursement fee as provided in Subsection (3).
(7) This section shall not limit the authority given to the county in Section 59-2-1302.
(8) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules specifying the performance standards and applicable training requirements for all contracts required by this section.
(b) Beginning on July 1, 1998, each new contract entered into under this section shall be subject to the rules made under Subsection (8)(a).
Section 975. Section 59-2-503 is amended to read:
59-2-503
. Qualifications for agricultural use assessment.(1) For general property tax purposes, land may be assessed on the basis of the value that the land has for agricultural use if the land:
(a) is not less than five contiguous acres in area, except that land may be assessed on the basis of the value that the land has for agricultural use:
(i) if:
(A) the land is devoted to agricultural use in conjunction with other eligible acreage; and
(B) the land and the other eligible acreage described in Subsection (1)(a)(i)(A) have identical legal ownership; or
(ii) as provided under Subsection (4); and
(b) except as provided in Subsection (5):
(i) is actively devoted to agricultural use; and
(ii) has been actively devoted to agricultural use for at least two successive years immediately preceding the tax year for which the land is being assessed under this part.
(2) In determining whether land is actively devoted to agricultural use, production per acre for a given county or area and a given type of land shall be determined by using the first applicable of the following:
(a) production levels reported in the current publication of the Utah Agricultural Statistics;
(b) current crop budgets developed and published by Utah State University; and
(c) other acceptable standards of agricultural production designated by the commission by rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) Land may be assessed on the basis of the land's agricultural value if the land:
(a) is subject to the privilege tax imposed by Section 59-4-101;
(b) is owned by the state or any of the state's political subdivisions; and
(c) meets the requirements of Subsection (1).
(4) Notwithstanding Subsection (1)(a), the commission or a county board of equalization may grant a waiver of the acreage limitation for land upon:
(a) appeal by the owner; and
(b) submission of proof that:
(i) 80% or more of the owner's, purchaser's, or lessee's income is derived from agricultural products produced on the property in question; or
(ii) (A) the failure to meet the acreage requirement arose solely as a result of an acquisition by a governmental entity by:
(I) eminent domain; or
(II) the threat or imminence of an eminent domain proceeding;
(B) the land is actively devoted to agricultural use; and
(C) no change occurs in the ownership of the land.
(5) (a) Notwithstanding Subsection (1)(b), the commission or a county board of equalization may grant a waiver of the requirement that the land is actively devoted to agricultural use for the tax year for which the land is being assessed under this part upon:
(i) appeal by the owner; and
(ii) submission of proof that:
(A) the land was assessed on the basis of agricultural use for at least two years immediately preceding that tax year; and
(B) the failure to meet the agricultural production requirements for that tax year was due to no fault or act of the owner, purchaser, or lessee.
(b) As used in Subsection (5)(a), "fault" does not include:
(i) intentional planting of crops or trees which, because of the maturation period, do not give the owner, purchaser, or lessee a reasonable opportunity to satisfy the production levels required for land actively devoted to agricultural use; or
(ii) implementation of a bona fide range improvement program, crop rotation program, or other similar accepted cultural practices which do not give the owner, purchaser, or lessee a reasonable opportunity to satisfy the production levels required for land actively devoted to agricultural use.
Section 976. Section 59-2-703 is amended to read:
59-2-703
. Commission to assist county assessors -- Appraisers provided upon request -- Costs of services -- Contingency fee arrangements prohibited.(1) The commission shall, upon request and pursuant to mutual agreement, provide county assessors with technical assistance and appraisal aid. It shall provide certified or licensed appraisers who, upon request of the county assessor and pursuant to mutual agreement, shall perform appraisals of property and other technical services as needed by the county assessor. The costs of these services shall be computed by the commission upon the basis of the number of days of services rendered. Each county shall pay to the commission 50% of the cost of the services which they receive.
(2) (a) Both the commission and counties may contract with a private firm or an individual to conduct appraisals.
(b) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the commission and counties may disclose the name of the taxpayer and the taxpayer's address to the contract appraiser. A private appraiser is subject to the confidentiality requirements and penalty provisions provided in [Title 63, Chapter 2] Title 63G, Chapter 2, Part 8, Remedies.
(c) Neither the commission nor a county may contract with a private firm or an individual under a contingency fee arrangement to assess property or prosecute or defend an appeal. An appraisal that has been prepared on a contingency fee basis may not be allowed in any proceeding before a county board of equalization or the commission.
Section 977. Section 59-2-704.5 is amended to read:
59-2-704.5
. Commission to adopt rules -- Legislative review.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and after receiving the advice of the Utah Assessors Association, the commission shall by rule adopt standards for determining acceptable assessment levels and valuation deviations within each county. The standards shall be used for determining whether factoring or corrective action is required under Subsection 59-2-704(2).
(2) As part of its review of the standards for determining acceptable assessment levels and valuation deviations within each county, the commission shall consider any relevant standards promulgated by the International Association of Assessing Officers.
(3) By October 1, 1998, and every five years thereafter, the Revenue and Taxation Interim Committee shall review the commission's standards and determine whether the standards should be modified.
Section 978. Section 59-2-801 is amended to read:
59-2-801
. Apportionment of property assessed by commission.(1) Before May 25 of each year, the commission shall apportion to each tax area the total assessment of all of the property the commission assesses as provided in Subsections (1)(a) through (f).
(a) (i) The commission shall apportion the assessments of the property described in Subsection (1)(a)(ii):
(A) to each tax area through which the public utility or company described in Subsection (1)(a)(ii) operates; and
(B) in proportion to the property's value in each tax area.
(ii) Subsection (1)(a)(i) applies to property owned by:
(A) a public utility, except for the rolling stock of a public utility;
(B) a pipeline company;
(C) a power company;
(D) a canal company; or
(E) an irrigation company.
(b) The commission shall apportion the assessments of the rolling stock of a railroad:
(i) to the tax areas through which railroads operate; and
(ii) in the proportion that the length of the main tracks, sidetracks, passing tracks, switches, and tramways of the railroads in each tax area bears to the total length of the main tracks, sidetracks, passing tracks, switches, and tramways in the state.
(c) The commission shall apportion the assessments of the property of a car company to:
(i) each tax area in which a railroad is operated; and
(ii) in the proportion that the length of the main tracks, passing tracks, sidetracks, switches, and tramways of all of the railroads in each tax area bears to the total length of the main tracks, passing tracks, sidetracks, switches, and tramways of all of the railroads in the state.
(d) (i) The commission shall apportion the assessments of the property described in Subsection (1)(d)(ii) to each tax area in which the property is located.
(ii) Subsection (1)(d)(i) applies to the following property:
(A) mines;
(B) mining claims; or
(C) mining property.
(e) (i) The commission shall apportion the assessments of the property described in Subsection (1)(e)(ii) to:
(A) each designated tax area; and
(B) in the proportion that the route miles in each designated tax area bear to the total route miles in the state.
(ii) Subsection (1)(e)(i) applies to the mobile flight equipment owned by an:
(A) air charter service;
(B) air contract service; or
(C) airline.
(f) (i) The commission shall apportion the assessments of the property described in Subsection (1)(f)(ii) to each tax area in which the property is located as of January 1 of each year.
(ii) Subsection (1)(f)(i) applies to the real and tangible personal property, other than mobile flight equipment, owned by an:
(A) air charter service;
(B) air contract service; or
(C) airline.
(2) (a) (i) (A) State-assessed commercial vehicles that weigh 12,001 pounds or more shall be taxed at a statewide average rate which is calculated from the overall county average tax rates from the preceding year, exclusive of the property subject to the statewide uniform fee, weighted by lane miles of principal routes in each county.
(B) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall adopt rules to define "principal routes."
(ii) State-assessed commercial vehicles that weigh 12,000 pounds or less are subject to the uniform fee provided in Section 59-2-405.1.
(b) The combined revenue from all state-assessed commercial vehicles shall be apportioned to the counties based on:
(i) 40% by the percentage of lane miles of principal routes within each county as determined by the commission; and
(ii) 60% by the percentage of total state-assessed vehicles having business situs in each county.
(c) At least quarterly, the commission shall apportion the total taxes paid on state-assessed commercial vehicles to the counties.
(d) Each county shall apportion its share of the revenues under this Subsection (2) to the taxing entities within its boundaries in the same proportion as the assessments of other:
(i) real property;
(ii) tangible personal property; and
(iii) property assessed by the commission.
Section 979. Section 59-2-924 is amended to read:
59-2-924
. Report of valuation of property to county auditor and commission -- Transmittal by auditor to governing bodies -- Certified tax rate -- Calculation of certified tax rate -- Rulemaking authority -- Adoption of tentative budget.(1) (a) Before June 1 of each year, the county assessor of each county shall deliver to the county auditor and the commission the following statements:
(i) a statement containing the aggregate valuation of all taxable property in each taxing entity; and
(ii) a statement containing the taxable value of any additional personal property estimated by the county assessor to be subject to taxation in the current year.
(b) The county auditor shall, on or before June 8, transmit to the governing body of each taxing entity:
(i) the statements described in Subsections (1)(a)(i) and (ii);
(ii) an estimate of the revenue from personal property;
(iii) the certified tax rate; and
(iv) all forms necessary to submit a tax levy request.
(2) (a) (i) The "certified tax rate" means a tax rate that will provide the same ad valorem property tax revenues for a taxing entity as were budgeted by that taxing entity for the prior year.
(ii) For purposes of this Subsection (2), "ad valorem property tax revenues" do not include:
(A) collections from redemptions;
(B) interest;
(C) penalties; and
(D) revenue received by a taxing entity from personal property that is:
(I) assessed by a county assessor in accordance with Part 3, County Assessment; and
(II) semiconductor manufacturing equipment.
(iii) (A) Except as otherwise provided in this section, the certified tax rate shall be calculated by dividing the ad valorem property tax revenues budgeted for the prior year by the taxing entity by the amount calculated under Subsection (2)(a)(iii)(B).
(B) For purposes of Subsection (2)(a)(iii)(A), the legislative body of a taxing entity shall calculate an amount as follows:
(I) calculate for the taxing entity the difference between:
(Aa) the aggregate taxable value of all property taxed; and
(Bb) any redevelopment adjustments for the current calendar year;
(II) after making the calculation required by Subsection (2)(a)(iii)(B)(I), calculate an amount determined by increasing or decreasing the amount calculated under Subsection (2)(a)(iii)(B)(I) by the average of the percentage net change in the value of taxable property for the equalization period for the three calendar years immediately preceding the current calendar year;
(III) after making the calculation required by Subsection (2)(a)(iii)(B)(II), calculate the product of:
(Aa) the amount calculated under Subsection (2)(a)(iii)(B)(II); and
(Bb) the percentage of property taxes collected for the five calendar years immediately preceding the current calendar year; and
(IV) after making the calculation required by Subsection (2)(a)(iii)(B)(III), calculate an amount determined by subtracting from the amount calculated under Subsection (2)(a)(iii)(B)(III) any new growth as defined in this section:
(Aa) within the taxing entity; and
(Bb) for the current calendar year.
(C) For purposes of Subsection (2)(a)(iii)(B)(I), the aggregate taxable value of all property taxed:
(I) except as provided in Subsection (2)(a)(iii)(C)(II), includes the total taxable value of the real and personal property contained on the tax rolls of the taxing entity; and
(II) does not include the total taxable value of personal property contained on the tax rolls of the taxing entity that is:
(Aa) assessed by a county assessor in accordance with Part 3, County Assessment; and
(Bb) semiconductor manufacturing equipment.
(D) For purposes of Subsection (2)(a)(iii)(B)(II), for calendar years beginning on or after January 1, 2007, the value of taxable property does not include the value of personal property that is:
(I) within the taxing entity assessed by a county assessor in accordance with Part 3, County Assessment; and
(II) semiconductor manufacturing equipment.
(E) For purposes of Subsection (2)(a)(iii)(B)(III)(Bb), for calendar years beginning on or after January 1, 2007, the percentage of property taxes collected does not include property taxes collected from personal property that is:
(I) within the taxing entity assessed by a county assessor in accordance with Part 3, County Assessment; and
(II) semiconductor manufacturing equipment.
(F) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may prescribe rules for calculating redevelopment adjustments for a calendar year.
(iv) (A) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules determining the calculation of ad valorem property tax revenues budgeted by a taxing entity.
(B) For purposes of Subsection (2)(a)(iv)(A), ad valorem property tax revenues budgeted by a taxing entity shall be calculated in the same manner as budgeted property tax revenues are calculated for purposes of Section 59-2-913.
(v) The certified tax rates for the taxing entities described in this Subsection (2)(a)(v) shall be calculated as follows:
(A) except as provided in Subsection (2)(a)(v)(B), for new taxing entities the certified tax rate is zero;
(B) for each municipality incorporated on or after July 1, 1996, the certified tax rate is:
(I) in a county of the first, second, or third class, the levy imposed for municipal-type services under Sections 17-34-1 and 17-36-9; and
(II) in a county of the fourth, fifth, or sixth class, the levy imposed for general county purposes and such other levies imposed solely for the municipal-type services identified in Section 17-34-1 and Subsection 17-36-3(22); and
(C) for debt service voted on by the public, the certified tax rate shall be the actual levy imposed by that section, except that the certified tax rates for the following levies shall be calculated in accordance with Section 59-2-913 and this section:
(I) school leeways provided for under Sections 11-2-7, 53A-16-110, 53A-17a-125, 53A-17a-127, 53A-17a-133, 53A-17a-134, 53A-17a-143, 53A-17a-145, and 53A-21-103; and
(II) levies to pay for the costs of state legislative mandates or judicial or administrative orders under Section 59-2-906.3.
(vi) (A) A judgment levy imposed under Section 59-2-1328 or 59-2-1330 shall be established at that rate which is sufficient to generate only the revenue required to satisfy one or more eligible judgments, as defined in Section 59-2-102.
(B) The ad valorem property tax revenue generated by the judgment levy shall not be considered in establishing the taxing entity's aggregate certified tax rate.
(b) (i) For the purpose of calculating the certified tax rate, the county auditor shall use the taxable value of property on the assessment roll.
(ii) For purposes of Subsection (2)(b)(i), the taxable value of property on the assessment roll does not include:
(A) new growth as defined in Subsection (2)(b)(iii); or
(B) the total taxable value of personal property contained on the tax rolls of the taxing entity that is:
(I) assessed by a county assessor in accordance with Part 3, County Assessment; and
(II) semiconductor manufacturing equipment.
(iii) "New growth" means:
(A) the difference between the increase in taxable value of the taxing entity from the previous calendar year to the current year; minus
(B) the amount of an increase in taxable value described in Subsection (2)(b)(v).
(iv) For purposes of Subsection (2)(b)(iii), the taxable value of the taxing entity does not include the taxable value of personal property that is:
(A) contained on the tax rolls of the taxing entity if that property is assessed by a county assessor in accordance with Part 3, County Assessment; and
(B) semiconductor manufacturing equipment.
(v) Subsection (2)(b)(iii)(B) applies to the following increases in taxable value:
(A) the amount of increase to locally assessed real property taxable values resulting from factoring, reappraisal, or any other adjustments; or
(B) the amount of an increase in the taxable value of property assessed by the commission under Section 59-2-201 resulting from a change in the method of apportioning the taxable value prescribed by:
(I) the Legislature;
(II) a court;
(III) the commission in an administrative rule; or
(IV) the commission in an administrative order.
(c) Beginning January 1, 1997, if a taxing entity receives increased revenues from uniform fees on tangible personal property under Section 59-2-404, 59-2-405, 59-2-405.1, 59-2-405.2, or 59-2-405.3 as a result of any county imposing a sales and use tax under Chapter 12, Part 11, County Option Sales and Use Tax, the taxing entity shall decrease its certified tax rate to offset the increased revenues.
(d) (i) Beginning July 1, 1997, if a county has imposed a sales and use tax under Chapter 12, Part 11, County Option Sales and Use Tax, the county's certified tax rate shall be:
(A) decreased on a one-time basis by the amount of the estimated sales and use tax revenue to be distributed to the county under Subsection 59-12-1102(3); and
(B) increased by the amount necessary to offset the county’s reduction in revenue from uniform fees on tangible personal property under Section 59-2-404, 59-2-405, 59-2-405.1, 59-2-405.2, or 59-2-405.3 as a result of the decrease in the certified tax rate under Subsection (2)(d)(i)(A).
(ii) The commission shall determine estimates of sales and use tax distributions for purposes of Subsection (2)(d)(i).
(e) Beginning January 1, 1998, if a municipality has imposed an additional resort communities sales tax under Section 59-12-402, the municipality’s certified tax rate shall be decreased on a one-time basis by the amount necessary to offset the first 12 months of estimated revenue from the additional resort communities sales and use tax imposed under Section 59-12-402.
(f) (i) (A) For fiscal year 2000, the certified tax rate of each county required under Subsection 17-34-1(4)(a) to provide advanced life support and paramedic services to the unincorporated area of the county shall be decreased by the amount necessary to reduce revenues in that fiscal year by an amount equal to the difference between the amount the county budgeted in its 2000 fiscal year budget for advanced life support and paramedic services countywide and the amount the county spent during fiscal year 2000 for those services, excluding amounts spent from a municipal services fund for those services.
(B) For fiscal year 2001, the certified tax rate of each county to which Subsection (2)(f)(i)(A) applies shall be decreased by the amount necessary to reduce revenues in that fiscal year by the amount that the county spent during fiscal year 2000 for advanced life support and paramedic services countywide, excluding amounts spent from a municipal services fund for those services.
(ii) (A) A city or town located within a county of the first class to which Subsection (2)(f)(i) applies may increase its certified tax rate by the amount necessary to generate within the city or town the same amount of revenues as the county would collect from that city or town if the decrease under Subsection (2)(f)(i) did not occur.
(B) An increase under Subsection (2)(f)(ii)(A), whether occurring in a single fiscal year or spread over multiple fiscal years, is not subject to the notice and hearing requirements of Sections 59-2-918 and 59-2-919.
(g) (i) The certified tax rate of each county required under Subsection 17-34-1(4)(b) to provide detective investigative services to the unincorporated area of the county shall be decreased:
(A) in fiscal year 2001 by the amount necessary to reduce revenues in that fiscal year by at least $4,400,000; and
(B) in fiscal year 2002 by the amount necessary to reduce revenues in that fiscal year by an amount equal to the difference between $9,258,412 and the amount of the reduction in revenues under Subsection (2)(g)(i)(A).
(ii) (A) (I) Beginning with municipal fiscal year 2002, a city or town located within a county to which Subsection (2)(g)(i) applies may increase its certified tax rate to generate within the city or town the same amount of revenue as the county would have collected during county fiscal year 2001 from within the city or town except for Subsection (2)(g)(i)(A).
(II) Beginning with municipal fiscal year 2003, a city or town located within a county to which Subsection (2)(g)(i) applies may increase its certified tax rate to generate within the city or town the same amount of revenue as the county would have collected during county fiscal year 2002 from within the city or town except for Subsection (2)(g)(i)(B).
(B) (I) Except as provided in Subsection (2)(g)(ii)(B)(II), an increase in the city or town's certified tax rate under Subsection (2)(g)(ii)(A), whether occurring in a single fiscal year or spread over multiple fiscal years, is subject to the notice and hearing requirements of Sections 59-2-918 and 59-2-919.
(II) For an increase under this Subsection (2)(g)(ii) that generates revenue that does not exceed the same amount of revenue as the county would have collected except for Subsection (2)(g)(i), the requirements of Sections 59-2-918 and 59-2-919 do not apply if the city or town:
(Aa) publishes a notice that meets the size, type, placement, and frequency requirements of Section 59-2-919, reflects that the increase is a shift of a tax from one imposed by the county to one imposed by the city or town, and explains how the revenues from the tax increase will be used; and
(Bb) holds a public hearing on the tax shift that may be held in conjunction with the city or town's regular budget hearing.
(h) (i) This Subsection (2)(h) applies to each county that:
(A) establishes a countywide special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, to provide jail service, as provided in Subsection 17A-2-1304(1)(a)(x); and
(B) levies a property tax on behalf of the special service district under Section 17A-2-1322.
(ii) (A) The certified tax rate of each county to which this Subsection (2)(h) applies shall be decreased by the amount necessary to reduce county revenues by the same amount of revenues that will be generated by the property tax imposed on behalf of the special service district.
(B) Each decrease under Subsection (2)(h)(ii)(A) shall occur contemporaneously with the levy on behalf of the special service district under Section 17A-2-1322.
(i) (i) As used in this Subsection (2)(i):
(A) "Annexing county" means a county whose unincorporated area is included within a fire district by annexation.
(B) "Annexing municipality" means a municipality whose area is included within a fire district by annexation.
(C) "Equalized fire protection tax rate" means the tax rate that results from:
(I) calculating, for each participating county and each participating municipality, the property tax revenue necessary to cover all of the costs associated with providing fire protection, paramedic, and emergency services:
(Aa) for a participating county, in the unincorporated area of the county; and
(Bb) for a participating municipality, in the municipality; and
(II) adding all the amounts calculated under Subsection (2)(i)(i)(C)(I) for all participating counties and all participating municipalities and then dividing that sum by the aggregate taxable value of the property, as adjusted in accordance with Section 59-2-913:
(Aa) for participating counties, in the unincorporated area of all participating counties; and
(Bb) for participating municipalities, in all the participating municipalities.
(D) "Fire district" means a service area under Title 17B, Chapter 2a, Part 9, Service Area Act, in the creation of which an election was not required under Subsection 17B-1-214(3)(c).
(E) "Fire protection tax rate" means:
(I) for an annexing county, the property tax rate that, when applied to taxable property in the unincorporated area of the county, generates enough property tax revenue to cover all the costs associated with providing fire protection, paramedic, and emergency services in the unincorporated area of the county; and
(II) for an annexing municipality, the property tax rate that generates enough property tax revenue in the municipality to cover all the costs associated with providing fire protection, paramedic, and emergency services in the municipality.
(F) "Participating county" means a county whose unincorporated area is included within a fire district at the time of the creation of the fire district.
(G) "Participating municipality" means a municipality whose area is included within a fire district at the time of the creation of the fire district.
(ii) In the first year following creation of a fire district, the certified tax rate of each participating county and each participating municipality shall be decreased by the amount of the equalized fire protection tax rate.
(iii) In the first year following annexation to a fire district, the certified tax rate of each annexing county and each annexing municipality shall be decreased by the fire protection tax rate.
(iv) Each tax levied under this section by a fire district shall be considered to be levied by:
(A) each participating county and each annexing county for purposes of the county's tax limitation under Section 59-2-908; and
(B) each participating municipality and each annexing municipality for purposes of the municipality's tax limitation under Section 10-5-112, for a town, or Section 10-6-133, for a city.
(j) For the calendar year beginning on January 1, 2007, the calculation of a taxing entity's certified tax rate shall be adjusted by the amount necessary to offset any change in the certified tax rate that may result from excluding the following from the certified tax rate under Subsection (2)(a) enacted by the Legislature during the 2007 General Session:
(i) personal property tax revenue:
(A) received by a taxing entity;
(B) assessed by a county assessor in accordance with Part 3, County Assessment; and
(C) for personal property that is semiconductor manufacturing equipment; or
(ii) the taxable value of personal property:
(A) contained on the tax rolls of a taxing entity;
(B) assessed by a county assessor in accordance with Part 3, County Assessment; and
(C) that is semiconductor manufacturing equipment.
(3) (a) On or before June 22, each taxing entity shall annually adopt a tentative budget.
(b) If the taxing entity intends to exceed the certified tax rate, it shall notify the county auditor of:
(i) its intent to exceed the certified tax rate; and
(ii) the amount by which it proposes to exceed the certified tax rate.
(c) The county auditor shall notify all property owners of any intent to exceed the certified tax rate in accordance with Subsection 59-2-919(2).
(4) (a) The taxable value for the base year under Subsection 17C-1-102(6) shall be reduced for any year to the extent necessary to provide a community development and renewal agency established under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies, with approximately the same amount of money the agency would have received without a reduction in the county's certified tax rate if:
(i) in that year there is a decrease in the certified tax rate under Subsection (2)(c) or (2)(d)(i);
(ii) the amount of the decrease is more than 20% of the county's certified tax rate of the previous year; and
(iii) the decrease results in a reduction of the amount to be paid to the agency under Section 17C-1-403 or 17C-1-404.
(b) The base taxable value under Subsection 17C-1-102(6) shall be increased in any year to the extent necessary to provide a community development and renewal agency with approximately the same amount of money as the agency would have received without an increase in the certified tax rate that year if:
(i) in that year the base taxable value under Subsection 17C-1-102(6) is reduced due to a decrease in the certified tax rate under Subsection (2)(c) or (2)(d)(i); and
(ii) The certified tax rate of a city, school district, local district, or special service district increases independent of the adjustment to the taxable value of the base year.
(c) Notwithstanding a decrease in the certified tax rate under Subsection (2)(c) or (2)(d)(i), the amount of money allocated and, when collected, paid each year to a community development and renewal agency established under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies, for the payment of bonds or other contract indebtedness, but not for administrative costs, may not be less than that amount would have been without a decrease in the certified tax rate under Subsection (2)(c) or (2)(d)(i).
Section 980. Section 59-2-1004 is amended to read:
59-2-1004
. Appeal to county board of equalization -- Real property -- Time period for appeal -- Decision of board -- Extensions approved by commission -- Appeal to commission.(1) (a) A taxpayer dissatisfied with the valuation or the equalization of the taxpayer's real property may make an application to appeal by:
(i) filing the application with the county board of equalization within the time period described in Subsection (2); or
(ii) making an application by telephone or other electronic means within the time period described in Subsection (2) if the county legislative body passes a resolution under Subsection (5) authorizing applications to be made by telephone or other electronic means.
(b) The contents of the application shall be prescribed by rule of the county board of equalization.
(2) (a) Except as provided in Subsection (2)(b), for purposes of Subsection (1), a taxpayer shall make an application to appeal the valuation or the equalization of the taxpayer's real property on or before the later of:
(i) September 15 of the current calendar year; or
(ii) the last day of a 45-day period beginning on the day on which the county auditor mails the notice under Subsection 59-2-919(4).
(b) Notwithstanding Subsection (2)(a), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing for circumstances under which the county board of equalization is required to accept an application to appeal that is filed after the time period prescribed in Subsection (2)(a).
(3) The owner shall include in the application under Subsection (1)(a)(i) the owner's estimate of the fair market value of the property and any evidence which may indicate that the assessed valuation of the owner's property is improperly equalized with the assessed valuation of comparable properties.
(4) (a) The county board of equalization shall meet and hold public hearings as prescribed in Section 59-2-1001.
(b) The county board of equalization shall make a decision on each appeal filed in accordance with this section within a 60-day period after the day on which the application is made.
(c) The commission may approve the extension of a time period provided for in Subsection (4)(b) for a county board of equalization to make a decision on an appeal.
(d) The decision of the board shall contain a determination of the valuation of the property based on fair market value, and a conclusion that the fair market value is properly equalized with the assessed value of comparable properties.
(e) If no evidence is presented before the county board of equalization, it will be presumed that the equalization issue has been met.
(f) (i) If the fair market value of the property that is the subject of the appeal deviates plus or minus 5% from the assessed value of comparable properties, the valuation of the appealed property shall be adjusted to reflect a value equalized with the assessed value of comparable properties.
(ii) The equalized value established under Subsection (4)(f)(i) shall be the assessed value for property tax purposes until the county assessor is able to evaluate and equalize the assessed value of all comparable properties to bring them all into conformity with full fair market value.
(5) If any taxpayer is dissatisfied with the decision of the county board of equalization, the taxpayer may file an appeal with the commission as prescribed in Section 59-2-1006.
(6) A county legislative body may pass a resolution authorizing taxpayers owing taxes on property assessed by that county to file property tax appeals applications under this section by telephone or other electronic means.
Section 981. Section 59-2-1004.5 is amended to read:
59-2-1004.5
. Valuation adjustment for decrease in taxable value caused by a natural disaster.(1) For purposes of this section:
(a) "natural disaster" means:
(i) an explosion;
(ii) fire;
(iii) a flood;
(iv) a storm;
(v) a tornado;
(vi) winds;
(vii) an earthquake;
(viii) lightning;
(ix) any adverse weather event; or
(x) any event similar to an event described in this Subsection (1), as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(b) "natural disaster damage" means any physical harm to property caused by a natural disaster.
(2) Except as provided in Subsection (3), if, during a calendar year, property sustains a decrease in taxable value that is caused by natural disaster damage, the owner of the property may apply to the county board of equalization for an adjustment in the taxable value of the owner's property as provided in Subsection (4).
(3) Notwithstanding Subsection (2), an owner may not receive the valuation adjustment described in this section if the decrease in taxable value described in Subsection (2) is:
(a) due to the intentional action or inaction of the owner; or
(b) less than 30% of the taxable value of the property described in Subsection (2) before the decrease in taxable value described in Subsection (2).
(4) (a) To receive the valuation adjustment described in Subsection (2), the owner of the property shall file an application for the valuation adjustment with the county board of equalization on or before the later of:
(i) the deadline described in Subsection 59-2-1004(2); or
(ii) 45 days after the day on which the natural disaster damage described in Subsection (2) occurs.
(b) The county board of equalization shall hold a hearing:
(i) within 30 days of the day on which the application described in Subsection (4)(a) is received by the board of equalization; and
(ii) following the procedures and requirements of Section 59-2-1001.
(c) At the hearing described in Subsection (4)(b), the applicant shall have the burden of proving, by a preponderance of the evidence:
(i) that the property sustained a decrease in taxable value, that:
(A) was caused by natural disaster damage; and
(B) is at least 30% of the taxable value of the property described in this Subsection (4)(c)(i) before the decrease in taxable value described in this Subsection (4)(c)(i);
(ii) the amount of the decrease in taxable value described in Subsection (4)(c)(i); and
(iii) that the decrease in taxable value described in Subsection (4)(c)(i) is not due to the action or inaction of the applicant.
(d) If the county board of equalization determines that the applicant has met the burden of proof described in Subsection (4)(c), the county board of equalization shall reduce the valuation of the property described in Subsection (4)(c)(i) by an amount equal to the decrease in taxable value of the property multiplied by the percentage of the calendar year remaining after the natural disaster damage occurred.
(e) The decision of the board of equalization shall be provided to the applicant, in writing, within 30 days of the day on which the hearing described in Subsection (4)(b) is concluded.
(5) An applicant that is dissatisfied with a decision of the board of equalization under this section may appeal that decision under Section 59-2-1006.
Section 982. Section 59-2-1004.6 is amended to read:
59-2-1004.6
. Tax relief for decrease in fair market value due to access interruption.(1) For purposes of this section "access interruption" means interruption of the normal access to or from property due to any circumstance beyond the control of the owner, including:
(a) road construction;
(b) traffic diversion;
(c) an accident;
(d) vandalism;
(e) an explosion;
(f) fire;
(g) a flood;
(h) a storm;
(i) a tornado;
(j) winds;
(k) an earthquake;
(l) lightning;
(m) any adverse weather event; or
(n) any event similar to the events described in this Subsection (1), as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Except as provided in Subsection (3), if, during a calendar year, property sustains a decrease in fair market value that is caused by access interruption, the owner of the property may apply to the county board of equalization for an adjustment in the fair market value of the owner's property as provided in Subsection (4).
(3) Notwithstanding Subsection (2), an owner may not receive the tax relief described in this section if the decrease in fair market value described in Subsection (2) is due to the intentional action or inaction of the owner.
(4) (a) To receive the tax relief described in Subsection (2), the owner of the property shall file an application for tax relief with the county board of equalization on or before September 30.
(b) The county board of equalization shall hold a hearing:
(i) within 30 days of the day on which the application described in Subsection (4)(a) is received by the board of equalization; and
(ii) in the manner described in Section 59-2-1001.
(c) At the hearing described in Subsection (4)(b), the applicant shall have the burden of proving, by a preponderance of the evidence:
(i) that the property sustained a decrease in fair market value, during the applicable calendar year, that was caused by access interruption;
(ii) the amount of the decrease in fair market value described in Subsection (4)(c)(i); and
(iii) that the decrease in fair market value described in Subsection (4)(c)(i) is not due to the action or inaction of the applicant.
(d) If the county board of equalization determines that the applicant has met the burden of proof described in Subsection (4)(c), the county board of equalization shall reduce the valuation of the property described in Subsection (4)(c)(i) by an amount equal to the decrease in fair market value of the property multiplied by the portion of the calendar year that the fair market value of the property was decreased.
(e) The decision of the board of equalization shall be provided to the applicant, in writing, within 30 days of the day on which the hearing described in Subsection (4)(b) is concluded.
(5) An applicant that is dissatisfied with a decision of the board of equalization under this section may appeal that decision under Section 59-2-1006.
Section 983. Section 59-2-1007 is amended to read:
59-2-1007
. Objection to assessment by commission -- Application -- Contents of application -- Amending an application -- Hearings -- Appeals.(1) (a) If the owner of any property assessed by the commission, or any county upon a showing of reasonable cause, objects to the assessment, the owner or the county may, on or before the later of June 1 or a day within 30 days of the date the notice of assessment is mailed by the commission pursuant to Section 59-2-201, apply to the commission for a hearing.
(b) The commission shall allow the following to be a party at a hearing under this section:
(i) the owner; and
(ii) the county upon a showing of reasonable cause.
(2) The owner or county shall include in the application under Subsection (1)(a):
(a) a written statement setting forth the known facts and legal basis supporting a different fair market value than the value assessed by the commission; and
(b) the owner's or county's estimate of the fair market value of the property.
(3) (a) An owner's or a county's estimate on an application under Subsection (2) of the fair market value of the property may be amended prior to the hearing as provided by rule.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules governing the procedures for amending an estimate of fair market value under Subsection (3)(a).
(4) (a) An owner applying to the commission for a hearing in accordance with Subsection (1) shall for the property for which the owner objects to the commission's assessment file a copy of the application with the county auditor of each county in which the property is located.
(b) A county auditor receiving a copy of an application in accordance with Subsection (4)(a) shall provide a copy of the application to the county:
(i) assessor;
(ii) attorney;
(iii) legislative body; and
(iv) treasurer.
(5) (a) On or before August 1, the commission shall conduct a scheduling conference with all parties to a hearing under this section.
(b) At the scheduling conference under Subsection (5)(a), the commission shall establish dates for:
(i) the completion of discovery;
(ii) the filing of prehearing motions; and
(iii) conducting a hearing on the objection to the assessment.
(6) (a) The commission shall issue a written decision no later than 120 days after the later of:
(i) the hearing described in Subsection (5)(b) is completed; or
(ii) all posthearing briefs are submitted.
(b) Any applications not resolved by the commission within a two-year period from the date of filing are considered to be denied, unless the parties stipulate to a different time period for resolving an application.
(c) A party may appeal to the district court pursuant to Section 59-1-601 within 30 days from the day on which an application is considered to be denied.
(7) At the hearing on the application, the commission may increase, lower, or sustain the assessment if:
(a) the commission finds an error in the assessment; or
(b) the commission determines that increasing, lowering, or sustaining the assessment is necessary to equalize the assessment with other similarly assessed property.
(8) (a) (i) The commission shall send notice of a commission action under Subsection (7) to a county auditor if:
(A) the commission proposes to adjust an assessment which was made pursuant to Section 59-2-201;
(B) the county's tax revenues may be affected by the commission's decision; and
(C) the county has not already been made a party pursuant to Subsection (1).
(ii) The written notice sent by the commission under Subsection (8)(a)(i):
(A) may be transmitted by:
(I) any form of electronic communication;
(II) first class mail; or
(III) private carrier; and
(B) shall request the county to show good cause why the commission should not adjust the assessment by requesting the county to provide to the commission a written statement:
(I) setting forth the known facts and legal basis for not adjusting the assessment; and
(II) within 30 days from the date of the notice.
(b) If a county provides to the commission a written statement in accordance with Subsection (8)(a)(ii)(B), the commission shall:
(i) hold a hearing or take other appropriate action to consider the good cause alleged by the county; and
(ii) issue a written decision increasing, lowering, or sustaining the assessment.
(c) If a county does not provide to the commission a written statement in accordance with Subsection (8)(a)(ii)(B), within 30 days after the commission sends the notice described in Subsection (8)(a), the commission shall adjust the assessment and send a copy of the commission's written decision to the county.
(9) Subsection (8) does not limit the rights of any county as described in Subsection (1).
Section 984. Section 59-2-1102 is amended to read:
59-2-1102
. Determination of exemptions by board of equalization -- Appeal -- Application for exemption -- Annual statement -- Exceptions.(1) (a) For property assessed under Part 3, County Assessment, the county board of equalization may, after giving notice in a manner prescribed by rule, determine whether certain property within the county is exempt from taxation.
(b) The decision of the county board of equalization described in Subsection (1)(a) shall:
(i) be in writing; and
(ii) include:
(A) a statement of facts; and
(B) the statutory basis for its decision.
(c) Except as provided in Subsection (11)(a), a copy of the decision described in Subsection (1)(a) shall be sent on or before May 15 to the person applying for the exemption.
(2) The county board of equalization shall notify an owner of exempt property that has previously received an exemption but failed to file an annual statement in accordance with Subsection (9)(c), of the county board of equalization's intent to revoke the exemption on or before April 1.
(3) (a) Except as provided in Subsection (8) and subject to Subsection (9), a reduction may not be made under this part in the value of property and an exemption may not be granted under this part unless the party affected or the party's agent:
(i) makes and files with the county board of equalization a written application for the reduction or exemption, verified by signed statement; and
(ii) appears before the county board of equalization and shows facts upon which it is claimed the reduction should be made, or exemption granted.
(b) Notwithstanding Subsection (9), the county board of equalization may waive:
(i) the application or personal appearance requirements of Subsection (3)(a), (4)(b), or (9)(a); or
(ii) the annual statement requirements of Subsection (9)(c).
(4) (a) Before the county board of equalization grants any application for exemption or reduction, the county board of equalization may examine under oath the person or agent making the application.
(b) Except as provided in Subsection (3)(b), a reduction may not be made or exemption granted unless the person or the agent making the application attends and answers all questions pertinent to the inquiry.
(5) For the hearing on the application, the county board of equalization may subpoena any witnesses, and hear and take any evidence in relation to the pending application.
(6) Except as provided in Subsection (11)(b), the county board of equalization shall hold hearings and render a written decision to determine any exemption on or before May 1 in each year.
(7) Any property owner dissatisfied with the decision of the county board of equalization regarding any reduction or exemption may appeal to the commission under Section 59-2-1006.
(8) Notwithstanding Subsection (3)(a), a county board of equalization may not require an owner of property to file an application in accordance with this section in order to claim an exemption for the property under the following:
(a) Subsections 59-2-1101(3)(a) through (c);
(b) Subsection 59-2-1101(3)(f) or (g);
(c) Section 59-2-1110;
(d) Section 59-2-1111;
(e) Section 59-2-1112;
(f) Section 59-2-1113; or
(g) Section 59-2-1114.
(9) (a) Except as provided in Subsections (3)(b) and (9)(b), for property described in Subsection 59-2-1101(3)(d) or (e), a county board of equalization shall, consistent with Subsection (10), require an owner of that property to file an application in accordance with this section in order to claim an exemption for that property.
(b) Notwithstanding Subsection (9)(a), a county board of equalization may not require an owner of property described in Subsection 59-2-1101(3)(d) or (e) to file an application under Subsection (9)(a) if:
(i) (A) the owner filed an application under Subsection (9)(a); or
(B) the county board of equalization waived the application requirements in accordance with Subsection (3)(b);
(ii) the county board of equalization determines that the owner may claim an exemption for that property; and
(iii) the exemption described in Subsection (9)(b)(ii) is in effect.
(c) (i) Except as provided in Subsection (3)(b), for the time period that an owner is granted an exemption in accordance with this section for property described in Subsection 59-2-1101(3)(d) or (e), a county board of equalization shall require the owner to file an annual statement on a form prescribed by the commission establishing that the property continues to be eligible for the exemption.
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing:
(A) the form for the annual statement required by Subsection (9)(c)(i);
(B) the contents of the form for the annual statement required by Subsection (9)(c)(i); and
(C) procedures and requirements for making the annual statement required by Subsection (9)(c)(i).
(iii) The commission shall make the form described in Subsection (9)(c)(ii)(A) available to counties.
(10) (a) For purposes of this Subsection (10), "exclusive use exemption" is as defined in Section 59-2-1101.
(b) (i) For purposes of Subsection (1)(a), and except as provided in Subsections (10)(b)(ii) and (iii), when a person acquires property on or after January 1 that qualifies for an exclusive use exemption, that person may apply for the exclusive use exemption on or before the later of:
(A) the day set by rule as the deadline for filing a property tax exemption application; or
(B) 30 days after the day on which the property is acquired.
(ii) Notwithstanding Subsection (10)(b)(i), a person who acquires property on or after January 1, 2004, and before January 1, 2005, that qualifies for an exclusive use exemption, may apply for the exclusive use exemption for the 2004 calendar year on or before September 30, 2005.
(iii) Notwithstanding Subsection (10)(b)(i), a person who acquires property on or after January 1, 2005, and before January 1, 2006, that qualifies for an exclusive use exemption, may apply for the exclusive use exemption for the 2005 calendar year on or before the later of:
(A) September 30, 2005; or
(B) 30 days after the day on which the property is acquired.
(11) (a) Notwithstanding Subsection (1)(c), if an application for an exemption is filed under Subsection (10), a county board of equalization shall send a copy of the decision described in Subsection (1)(c) to the person applying for the exemption on or before the later of:
(i) May 15; or
(ii) 45 days after the day on which the application for the exemption is filed.
(b) Notwithstanding Subsection (6), if an application for an exemption is filed under Subsection (10), a county board of equalization shall hold the hearing and render the decision described in Subsection (6) on or before the later of:
(i) May 1; or
(ii) 30 days after the day on which the application for the exemption is filed.
Section 985. Section 59-2-1105 (Superseded 01/01/08) is amended to read:
59-2-1105 (Superseded 01/01/08)
. Application for veteran's exemption -- Rulemaking authority -- Statement -- County authority to make refunds.(1) (a) A veteran's exemption may be allowed only if the interest of the claimant is on record on January 1 of the year the exemption is claimed.
(b) If the claimant has an interest in real property under a contract, the veteran's exemption may be allowed if it is proved to the satisfaction of the county that the claimant is:
(i) the purchaser under the contract; and
(ii) obligated to pay the taxes on the property beginning January 1 of the year the exemption is claimed.
(c) If the claimant is the grantor of a trust holding title to real or tangible personal property on which a veteran's exemption is claimed, the claimant may claim the portion of the veteran's exemption under Section 59-2-1104 and be treated as the owner of that portion of the property held in trust for which the claimant proves to the satisfaction of the county that:
(i) title to the portion of the trust will revest in the claimant upon the exercise of a power:
(A) by:
(I) the claimant as grantor of the trust;
(II) a nonadverse party; or
(III) both the claimant and a nonadverse party; and
(B) regardless of whether the power is a power:
(I) to revoke;
(II) to terminate;
(III) to alter;
(IV) to amend; or
(V) to appoint;
(ii) the claimant is obligated to pay the taxes on that portion of the trust property beginning January 1 of the year the claimant claims the exemption; and
(iii) the claimant meets the requirements under this part for the exemption.
(2) (a) (i) A claimant applying for a veteran's exemption under this section shall file an application:
(A) with the county in which that person resides; and
(B) except as provided in Subsection (2)(b), on or before September 1 of the year in which that claimant is applying for the veteran's exemption in accordance with this section.
(ii) A county shall provide a claimant who files an application for a veteran's exemption in accordance with this section with a receipt:
(A) stating that the county received the claimant's application; and
(B) no later than 30 days after the day on which the claimant filed the application in accordance with this section.
(b) Notwithstanding Subsection (2)(a)(i)(B):
(i) subject to Subsection (2)(b)(iv), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall extend the deadline for filing the application required by Subsection (2)(a) to September 1 of the year after the year the claimant would otherwise be required to file the application under Subsection (2)(a)(i)(B) if:
(A) on or after January 1, 2004, a military entity issues a written decision that the:
(I) disabled veteran is disabled; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption was disabled at the time the deceased disabled veteran died; and
(B) the date the written decision described in Subsection (2)(b)(i)(A) takes effect is in any year prior to the current calendar year;
(ii) subject to Subsections (2)(b)(iv) and (2)(d), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall allow the claimant to amend the application required by Subsection (2)(a) on or before September 1 of the year after the year the claimant filed the application under Subsection (2)(a)(i)(B) if:
(A) on or after January 1, 2004, a military entity issues a written decision that the percentage of disability has changed for the:
(I) disabled veteran; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption; and
(B) the date the written decision described in Subsection (2)(b)(ii)(A) takes effect is in any year prior to the current calendar year;
(iii) subject to Subsections (2)(b)(iv) and (2)(d), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall extend the deadline for filing the application required by Subsection (2)(a) to September 1 of the year after the year the claimant would otherwise be required to file the application under Subsection (2)(a)(i)(B) if the county legislative body determines that:
(A) the claimant or a member of the claimant's immediate family had an illness or injury that prevented the claimant from filing the application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B);
(B) a member of the claimant's immediate family died during the calendar year the claimant was required to file the application under Subsection (2)(a)(i)(B);
(C) the claimant was not physically present in the state for a time period of at least six consecutive months during the calendar year the claimant was required to file the application under Subsection (2)(a)(i)(B); or
(D) the failure of the claimant to file the application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B):
(I) would be against equity or good conscience; and
(II) was beyond the reasonable control of the claimant; and
(iv) a county may extend the deadline for filing an application or amending an application under this Subsection (2) until December 31 if the county finds that good cause exists to extend the deadline.
(c) The following shall accompany the initial application for a veteran's exemption:
(i) a copy of the veteran's certificate of discharge from the military service of:
(A) the United States; or
(B) this state; or
(ii) other satisfactory evidence of eligible military service.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule:
(i) establish procedures and requirements for amending an application under Subsection (2)(b)(ii);
(ii) for purposes of Subsection (2)(b)(iii), define the terms:
(A) "immediate family"; or
(B) "physically present"; or
(iii) for purposes of Subsection (2)(b)(iii), prescribe the circumstances under which the failure of a claimant to file an application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B):
(A) would be against equity or good conscience; and
(B) is beyond the reasonable control of a claimant.
(3) (a) (i) Subject to Subsection (3)(a)(ii), a claimant who files an application for a veteran's exemption shall have on file with the county a statement:
(A) issued by a military entity; and
(B) listing the percentage of disability for the disabled veteran or deceased disabled veteran with respect to whom a claimant applies for a veteran's exemption.
(ii) If a claimant has on file with the county the statement described in Subsection (3)(a)(i), the county may not require the claimant to file another statement described in Subsection (3)(a)(i) unless:
(A) the claimant who files an application under this section for a veteran's exemption with respect to a deceased disabled veteran or veteran who was killed in action or died in the line of duty is a person other than the claimant who filed the statement described in Subsection (3)(a)(i) for a veteran's exemption:
(I) for the calendar year immediately preceding the current calendar year; and
(II) with respect to that deceased disabled veteran or veteran who was killed in action or died in the line of duty; or
(B) the percentage of disability has changed for a:
(I) disabled veteran; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption under this section.
(b) For a claimant filing an application in accordance with Subsection (2)(b)(i), the claimant shall include with the application required by Subsection (2) a statement issued by a military entity listing the date the written decision described in Subsection (2)(b)(i)(A) takes effect.
(c) For a claimant amending an application in accordance with Subsection (2)(b)(ii), the claimant shall provide to the county a statement issued by a military entity listing the date the written decision described in Subsection (2)(b)(ii)(A) takes effect.
(4) (a) For purposes of this Subsection (4):
(i) "Property taxes due" means the taxes due on a claimant's property:
(A) for which a veteran's exemption is granted by a county; and
(B) for the calendar year for which the veteran's exemption is granted.
(ii) "Property taxes paid" is an amount equal to the sum of:
(A) the amount of the property taxes the claimant paid for the calendar year for which the claimant is applying for the veteran's exemption; and
(B) the veteran's exemption the county granted for the calendar year described in Subsection (4)(a)(ii)(A).
(b) A county granting a veteran's exemption to a claimant shall refund to that claimant an amount equal to the amount by which the claimant's property taxes paid exceed the claimant's property taxes due, if that amount is $1 or more.
Section 986. Section 59-2-1105 (Effective 01/01/08) is amended to read:
59-2-1105 (Effective 01/01/08)
. Application for veteran's exemption -- Rulemaking authority -- Statement -- County authority to make refunds.(1) (a) A veteran's exemption may be allowed only if the interest of the claimant is on record on January 1 of the year the exemption is claimed.
(b) If the claimant has an interest in real property under a contract, the veteran's exemption may be allowed if it is proved to the satisfaction of the county that the claimant is:
(i) the purchaser under the contract; and
(ii) obligated to pay the taxes on the property beginning January 1 of the year the exemption is claimed.
(c) If the claimant is the grantor of a trust holding title to real or tangible personal property on which a veteran's exemption is claimed, the claimant may claim the portion of the veteran's exemption under Section 59-2-1104 and be treated as the owner of that portion of the property held in trust for which the claimant proves to the satisfaction of the county that:
(i) title to the portion of the trust will revest in the claimant upon the exercise of a power:
(A) by:
(I) the claimant as grantor of the trust;
(II) a nonadverse party; or
(III) both the claimant and a nonadverse party; and
(B) regardless of whether the power is a power:
(I) to revoke;
(II) to terminate;
(III) to alter;
(IV) to amend; or
(V) to appoint;
(ii) the claimant is obligated to pay the taxes on that portion of the trust property beginning January 1 of the year the claimant claims the exemption; and
(iii) the claimant meets the requirements under this part for the exemption.
(2) (a) (i) A claimant applying for a veteran's exemption under this section shall file an application:
(A) with the county in which that person resides; and
(B) except as provided in Subsection (2)(b) or (e), on or before September 1 of the year in which that claimant is applying for the veteran's exemption in accordance with this section.
(ii) A county shall provide a claimant who files an application for a veteran's exemption in accordance with this section with a receipt:
(A) stating that the county received the claimant's application; and
(B) no later than 30 days after the day on which the claimant filed the application in accordance with this section.
(b) Notwithstanding Subsection (2)(a)(i)(B) or (2)(e):
(i) subject to Subsection (2)(b)(iv), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall extend the deadline for filing the application required by Subsection (2)(a) to September 1 of the year after the year the claimant would otherwise be required to file the application under Subsection (2)(a)(i)(B) if:
(A) on or after January 1, 2004, a military entity issues a written decision that the:
(I) disabled veteran is disabled; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption was disabled at the time the deceased disabled veteran died; and
(B) the date the written decision described in Subsection (2)(b)(i)(A) takes effect is in any year prior to the current calendar year;
(ii) subject to Subsections (2)(b)(iv) and (2)(d), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall allow the claimant to amend the application required by Subsection (2)(a) on or before September 1 of the year after the year the claimant filed the application under Subsection (2)(a)(i)(B) if:
(A) on or after January 1, 2004, a military entity issues a written decision that the percentage of disability has changed for the:
(I) disabled veteran; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption; and
(B) the date the written decision described in Subsection (2)(b)(ii)(A) takes effect is in any year prior to the current calendar year;
(iii) subject to Subsections (2)(b)(iv) and (2)(d), for a claimant who applies for a veteran's exemption on or after January 1, 2004, a county shall extend the deadline for filing the application required by Subsection (2)(a) to September 1 of the year after the year the claimant would otherwise be required to file the application under Subsection (2)(a)(i)(B) if the county legislative body determines that:
(A) the claimant or a member of the claimant's immediate family had an illness or injury that prevented the claimant from filing the application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B);
(B) a member of the claimant's immediate family died during the calendar year the claimant was required to file the application under Subsection (2)(a)(i)(B);
(C) the claimant was not physically present in the state for a time period of at least six consecutive months during the calendar year the claimant was required to file the application under Subsection (2)(a)(i)(B); or
(D) the failure of the claimant to file the application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B):
(I) would be against equity or good conscience; and
(II) was beyond the reasonable control of the claimant; and
(iv) a county may extend the deadline for filing an application or amending an application under this Subsection (2) until December 31 if the county finds that good cause exists to extend the deadline.
(c) The following shall accompany the initial application for a veteran's exemption:
(i) a copy of the veteran's certificate of discharge from the military service of:
(A) the United States; or
(B) this state; or
(ii) other satisfactory evidence of eligible military service.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule:
(i) establish procedures and requirements for amending an application under Subsection (2)(b)(ii);
(ii) for purposes of Subsection (2)(b)(iii), define the terms:
(A) "immediate family"; or
(B) "physically present"; or
(iii) for purposes of Subsection (2)(b)(iii), prescribe the circumstances under which the failure of a claimant to file an application on or before the deadline for filing the application established in Subsection (2)(a)(i)(B):
(A) would be against equity or good conscience; and
(B) is beyond the reasonable control of a claimant.
(e) If a claimant has on file with the county the application described in Subsection (2)(a), the county may not require the claimant to file another application described in Subsection (2)(a) unless:
(i) the claimant applies all or a portion of an exemption allowed by this section to any tangible personal property;
(ii) the percentage of disability has changed for the:
(A) disabled veteran; or
(B) deceased disabled veteran with respect to whom a claimant applies for a veteran's exemption under this section;
(iii) the disabled veteran dies;
(iv) the claimant's ownership interest in the claimant's primary residence changes;
(v) the claimant's occupancy of the primary residence for which the claimant claims an exemption under Section 59-2-1104 changes; or
(vi) the claimant who files an application for a veteran's exemption with respect to a deceased disabled veteran or veteran who was killed in action or died in the line of duty is a person other than the claimant who filed the application described in Subsection (2)(a) for a veteran's exemption:
(A) for the calendar year immediately preceding the current calendar year; and
(B) with respect to that deceased disabled veteran or veteran who was killed in action or died in the line of duty.
(f) The county may verify that the residential property for which the claimant claims an exemption under Section 59-2-1104 is the claimant's primary residence.
(3) (a) (i) Subject to Subsection (3)(a)(ii), a claimant who files an application for a veteran's exemption shall have on file with the county a statement:
(A) issued by a military entity; and
(B) listing the percentage of disability for the disabled veteran or deceased disabled veteran with respect to whom a claimant applies for a veteran's exemption.
(ii) If a claimant has on file with the county the statement described in Subsection (3)(a)(i), the county may not require the claimant to file another statement described in Subsection (3)(a)(i) unless:
(A) the claimant who files an application under this section for a veteran's exemption with respect to a deceased disabled veteran or veteran who was killed in action or died in the line of duty is a person other than the claimant who filed the statement described in Subsection (3)(a)(i) for a veteran's exemption:
(I) for the calendar year immediately preceding the current calendar year; and
(II) with respect to that deceased disabled veteran or veteran who was killed in action or died in the line of duty; or
(B) the percentage of disability has changed for a:
(I) disabled veteran; or
(II) deceased disabled veteran with respect to whom the claimant applies for a veteran's exemption under this section.
(b) For a claimant filing an application in accordance with Subsection (2)(b)(i), the claimant shall include with the application required by Subsection (2) a statement issued by a military entity listing the date the written decision described in Subsection (2)(b)(i)(A) takes effect.
(c) For a claimant amending an application in accordance with Subsection (2)(b)(ii), the claimant shall provide to the county a statement issued by a military entity listing the date the written decision described in Subsection (2)(b)(ii)(A) takes effect.
(4) (a) For purposes of this Subsection (4):
(i) "Property taxes due" means the taxes due on a claimant's property:
(A) for which a veteran's exemption is granted by a county; and
(B) for the calendar year for which the veteran's exemption is granted.
(ii) "Property taxes paid" is an amount equal to the sum of:
(A) the amount of the property taxes the claimant paid for the calendar year for which the claimant is applying for the veteran's exemption; and
(B) the veteran's exemption the county granted for the calendar year described in Subsection (4)(a)(ii)(A).
(b) A county granting a veteran's exemption to a claimant shall refund to that claimant an amount equal to the amount by which the claimant's property taxes paid exceed the claimant's property taxes due, if that amount is $1 or more.
Section 987. Section 59-2-1115 is amended to read:
59-2-1115
. Exemption of certain tangible personal property.(1) (a) The taxable tangible personal property of a taxpayer is exempt from taxation if the taxable tangible personal property has a total aggregate fair market value of $3,500 or less.
(b) For purposes of this section, "taxable tangible personal property" does not include:
(i) tangible personal property required by law to be registered with the state before it is used:
(A) on a public highway;
(B) on a public waterway;
(C) on public land; or
(D) in the air;
(ii) a mobile home as defined in Section 41-1a-102; or
(iii) a manufactured home as defined in Section 41-1a-102.
(2) (a) For calendar years beginning on or after January 1, 2008, the commission shall increase the dollar amount described in Subsection (1) by a percentage equal to the percentage difference between the consumer price index for the preceding calendar year and the consumer price index for calendar year 2006.
(b) For purposes of this Subsection (2), the commission shall calculate the consumer price index as provided in Sections 1(f)(4) and 1(f)(5), Internal Revenue Code.
(c) If the percentage difference under Subsection (2)(a) is zero or a negative percentage, the consumer price index increase for the year is zero.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to administer this section and provide for uniform implementation.
Section 988. Section 59-2-1202 is amended to read:
59-2-1202
. Definitions.As used in this part:
(1) (a) "Claimant" means a homeowner or renter who:
(i) has filed a claim under this part;
(ii) is domiciled in this state for the entire calendar year for which a claim for relief is filed under this part; and
(iii) on or before the December 31 of the year for which a claim for relief is filed under this part, is:
(A) 65 years of age or older if the person was born on or before December 31, 1942;
(B) 66 years of age or older if the person was born on or after January 1, 1943, but on or before December 31, 1959; or
(C) 67 years of age or older if the person was born on or after January 1, 1960.
(b) A surviving spouse, who otherwise qualifies under this section, is an eligible claimant regardless of age.
(c) If two or more individuals of a household are able to meet the qualifications for a claimant, they may determine among them as to who the claimant shall be, but if they are unable to agree, the matter shall be referred to the county legislative body for a determination of the claimant of an owned residence and to the commission for a determination of the claimant of a rented residence.
(2) (a) "Gross rent" means rental actually paid in cash or its equivalent solely for the right of occupancy, at arm's-length, of a residence, exclusive of charges for any utilities, services, furniture, furnishings, or personal appliances furnished by the landlord as a part of the rental agreement.
(b) If a claimant occupies two or more residences in the year and does not own the residence as of the lien date, "gross rent" means the total rent paid for the residences during the one-year period for which the renter files a claim under this part.
(3) "Homeowner's credit" means a credit against a claimant's property tax liability.
(4) "Household" means the association of persons who live in the same dwelling, sharing its furnishings, facilities, accommodations, and expenses.
(5) "Household income" means all income received by all persons of a household in:
(a) the calendar year preceding the calendar year in which property taxes are due; or
(b) for purposes of the renter's credit authorized by this part, the year for which a claim is filed.
(6) (a) (i) "Income" means the sum of:
(A) federal adjusted gross income as defined in Section 62, Internal Revenue Code; and
(B) all nontaxable income as defined in Subsection (6)(b).
(ii) "Income" does not include:
(A) aid, assistance, or contributions from a tax-exempt nongovernmental source;
(B) surplus foods;
(C) relief in kind supplied by a public or private agency; or
(D) relief provided under this part, Section 59-2-1108, or Section 59-2-1109.
(b) For purposes of Subsection (6)(a)(i), "nontaxable income" means amounts excluded from adjusted gross income under the Internal Revenue Code, including:
(i) capital gains;
(ii) loss carry forwards claimed during the taxable year in which a claimant files for relief under this part, Section 59-2-1108, or Section 59-2-1109;
(iii) depreciation claimed pursuant to the Internal Revenue Code by a claimant on the residence for which the claimant files for relief under this part, Section 59-2-1108, or Section 59-2-1109;
(iv) support money received;
(v) nontaxable strike benefits;
(vi) cash public assistance or relief;
(vii) the gross amount of a pension or annuity, including benefits under the Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231 et seq., and veterans disability pensions;
(viii) payments received under the Social Security Act;
(ix) state unemployment insurance amounts;
(x) nontaxable interest received from any source;
(xi) workers' compensation;
(xii) the gross amount of "loss of time" insurance; and
(xiii) voluntary contributions to a tax-deferred retirement plan.
(7) (a) "Property taxes accrued" means property taxes, exclusive of special assessments, delinquent interest, and charges for service, levied on a claimant's residence in this state.
(b) For a mobile home, "property taxes accrued" includes taxes imposed on both the land upon which the home is situated and on the structure of the home itself, whether classified as real property or personal property taxes.
(c) (i) Beginning on January 1, 1999, for a claimant who owns a residence, "property taxes accrued" are the property taxes described in Subsection (7)(a) levied for the calendar year on 35% of the fair market value of the residence as reflected on the assessment roll.
(ii) The amount described in Subsection (7)(c)(i) constitutes:
(A) a tax abatement for the poor in accordance with Utah Constitution Article XIII, Section 3; and
(B) the residential exemption provided for in Section 59-2-103.
(d) (i) For purposes of this Subsection (7) property taxes accrued are levied on the lien date.
(ii) If a claimant owns a residence on the lien date, property taxes accrued mean taxes levied on the lien date, even if that claimant does not own a residence for the entire year.
(e) When a household owns and occupies two or more different residences in this state in the same calendar year, property taxes accrued shall relate only to the residence occupied on the lien date by the household as its principal place of residence.
(f) (i) If a residence is an integral part of a large unit such as a farm or a multipurpose or multidwelling building, property taxes accrued shall be the same percentage of the total property taxes accrued as the value of the residence is of the total value.
(ii) For purposes of this Subsection (7)(f), "unit" refers to the parcel of property covered by a single tax statement of which the residence is a part.
(8) (a) As used in this section, "rental assistance payment" means any payment that:
(i) is made by a:
(A) governmental entity; or
(B) (I) charitable organization; or
(II) religious organization; and
(ii) is specifically designated for the payment of rent of a claimant:
(A) for the calendar year for which the claimant seeks a renter's credit under this part; and
(B) regardless of whether the payment is made to the:
(I) claimant; or
(II) landlord; and
(b) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining the terms:
(i) "governmental entity";
(ii) "charitable organization"; or
(iii) "religious organization."
(9) (a) "Residence" means the dwelling, whether owned or rented, and so much of the land surrounding it, not exceeding one acre, as is reasonably necessary for use of the dwelling as a home, and may consist of a part of a multidwelling or multipurpose building and a part of the land upon which it is built and includes a mobile home or houseboat.
(b) "Residence" does not include personal property such as furniture, furnishings, or appliances.
(c) For purposes of this Subsection (9), "owned" includes a vendee in possession under a land contract or one or more joint tenants or tenants in common.
Section 989. Section 59-5-101 is amended to read:
59-5-101
. Definitions.As used in this part:
(1) "Board" means the Board of Oil, Gas and Mining created in Section 40-6-4.
(2) "Coal-to-liquid" means the process of converting coal into a liquid synthetic fuel.
(3) "Condensate" means those hydrocarbons, regardless of gravity, that occur naturally in the gaseous phase in the reservoir that are separated from the natural gas as liquids through the process of condensation either in the reservoir, in the wellbore, or at the surface in field separators.
(4) "Crude oil" means those hydrocarbons, regardless of gravity, that occur naturally in the liquid phase in the reservoir and are produced and recovered at the wellhead in liquid form.
(5) "Development well" means any oil and gas producing well other than a wildcat well.
(6) "Division" means the Division of Oil, Gas and Mining established under Title 40, Chapter 6.
(7) "Enhanced recovery project" means:
(a) the injection of liquids or hydrocarbon or nonhydrocarbon gases directly into a reservoir for the purpose of:
(i) augmenting reservoir energy;
(ii) modifying the properties of the fluids or gases in a reservoir; or
(iii) changing the reservoir conditions to increase the recoverable oil, gas, or oil and gas through the joint use of two or more well bores; and
(b) a project initially approved by the board as a new or expanded enhanced recovery project on or after January 1, 1996.
(8) (a) "Gas" means:
(i) natural gas;
(ii) natural gas liquids; or
(iii) any mixture of natural gas and natural gas liquids.
(b) "Gas" does not include solid hydrocarbons.
(9) "Incremental production" means that part of production, certified by the Division of Oil, Gas and Mining, which is achieved from an enhanced recovery project that would not have economically occurred under the reservoir conditions existing before the project and that has been approved by the division as incremental production.
(10) "Natural gas" means those hydrocarbons, other than oil and other than natural gas liquids separated from natural gas, that occur naturally in the gaseous phase in the reservoir and are produced and recovered at the wellhead in gaseous form.
(11) "Natural gas liquids" means those hydrocarbons initially in reservoir natural gas, regardless of gravity, that are separated in gas processing plants from the natural gas as liquids at the surface through the process of condensation, absorption, adsorption, or other methods.
(12) (a) "Oil" means:
(i) crude oil;
(ii) condensate; or
(iii) any mixture of crude oil and condensate.
(b) "Oil" does not include solid hydrocarbons.
(13) "Oil or gas field" means a geographical area overlying oil or gas structures. The boundaries of oil or gas fields shall conform with the boundaries as fixed by the Board and Division of Oil, Gas and Mining under Title 40, Chapter 6, Board and Division of Oil, Gas and Mining.
(14) "Oil shale" means a group of fine black to dark brown shales containing bituminous material that yields petroleum upon distillation.
(15) "Operator" means any person engaged in the business of operating an oil or gas well, regardless of whether the person is:
(a) a working interest owner;
(b) an independent contractor; or
(c) acting in a capacity similar to Subsection (15)(a) or (b) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(16) "Owner" means any person having a working interest, royalty interest, payment out of production, or any other interest in the oil or gas produced or extracted from an oil or gas well in the state, or in the proceeds of this production.
(17) (a) Subject to Subsections (17)(b) and (c), "processing costs" means the reasonable actual costs of processing oil or gas to remove:
(i) natural gas liquids; or
(ii) contaminants.
(b) If processing costs are determined on the basis of an arm's-length contract, processing costs are the actual costs.
(c) (i) If processing costs are determined on a basis other than an arm's-length contract, processing costs are those reasonable costs associated with:
(A) actual operating and maintenance expenses, including oil or gas used or consumed in processing;
(B) overhead directly attributable and allocable to the operation and maintenance; and
(C) (I) depreciation and a return on undepreciated capital investment; or
(II) a cost equal to a return on the investment in the processing facilities as determined by the commission.
(ii) Subsection (17)(c)(i) includes situations where the producer performs the processing for the producer's product.
(18) "Producer" means any working interest owner in any lands in any oil or gas field from which gas or oil is produced.
(19) "Recompletion" means any downhole operation that is:
(a) conducted to reestablish the producibility or serviceability of a well in any geologic interval; and
(b) approved by the division as a recompletion.
(20) "Research and development" means the process of inquiry or experimentation aimed at the discovery of facts, devices, technologies, or applications and the process of preparing those devices, technologies, or applications for marketing.
(21) "Royalty interest owner" means the owner of an interest in oil or gas, or in the proceeds of production from the oil or gas who does not have the obligation to share in the expenses of developing and operating the property.
(22) "Solid hydrocarbons" means:
(a) coal;
(b) gilsonite;
(c) ozocerite;
(d) elaterite;
(e) oil shale;
(f) tar sands; and
(g) all other hydrocarbon substances that occur naturally in solid form.
(23) "Stripper well" means:
(a) an oil well whose average daily production for the days the well has produced has been 20 barrels or less of crude oil a day during any consecutive 12-month period; or
(b) a gas well whose average daily production for the days the well has produced has been 60 MCF or less of natural gas a day during any consecutive 90-day period.
(24) "Tar sands" means impregnated sands that yield mixtures of liquid hydrocarbon and require further processing other than mechanical blending before becoming finished petroleum products.
(25) (a) Subject to Subsections (25)(b) and (c), "transportation costs" means the reasonable actual costs of transporting oil or gas products from the well to the point of sale.
(b) If transportation costs are determined on the basis of an arm's-length contract, transportation costs are the actual costs.
(c) (i) If transportation costs are determined on a basis other than an arm's-length contract, transportation costs are those reasonable costs associated with:
(A) actual operating and maintenance expenses, including fuel used or consumed in transporting the oil or gas;
(B) overhead costs directly attributable and allocable to the operation and maintenance; and
(C) depreciation and a return on undepreciated capital investment.
(ii) Subsection (25)(c)(i) includes situations where the producer performs the transportation for the producer's product.
(d) Regardless of whether transportation costs are determined on the basis of an arm's-length contract or a basis other than an arm's-length contract, transportation costs include:
(i) carbon dioxide removal;
(ii) compression;
(iii) dehydration;
(iv) gathering;
(v) separating;
(vi) treating; or
(vii) a process similar to Subsections (25)(d)(i) through (vi), as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(26) "Tribe" means the Ute Indian Tribe of the Uintah and Ouray Reservation.
(27) "Well or wells" means any extractive means from which oil or gas is produced or extracted, located within an oil or gas field, and operated by one person.
(28) "Wildcat well" means an oil and gas producing well which is drilled and completed in a pool, as defined under Section 40-6-2, in which a well has not been previously completed as a well capable of producing in commercial quantities.
(29) "Working interest owner" means the owner of an interest in oil or gas burdened with a share of the expenses of developing and operating the property.
(30) (a) "Workover" means any downhole operation that is:
(i) conducted to sustain, restore, or increase the producibility or serviceability of a well in the geologic intervals in which the well is currently completed; and
(ii) approved by the division as a workover.
(b) "Workover" does not include operations that are conducted primarily as routine maintenance or to replace worn or damaged equipment.
Section 990. Section 59-5-110 is amended to read:
59-5-110
. Decisions of commission.Every decision of the commission shall be in writing and notice of the decision shall be mailed to the taxpayer within ten days. All decisions become final upon the expiration of 30 days after notice has been mailed to the taxpayer, unless proceedings are taken within such time for a review in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, in which case it becomes final as specified in the Administrative Procedures Act.
Section 991. Section 59-5-203 is amended to read:
59-5-203
. Determining taxable value.(1) Except as provided in Subsection (3), the basis for computing the gross proceeds, prior to those deductions or adjustments specified in this chapter, in determining the taxable value of the metals or metalliferous minerals sold or otherwise disposed of, in the order of priority, is as follows:
(a) If the metals or metalliferous mineral products are actually sold, the value of those metals or metalliferous mineral products shall be the gross amount the producer receives from that sale, provided that the metals or metalliferous mineral products are sold under a bona fide contract of sale between unaffiliated parties. In the case of a sale of uranium concentrates, gross proceeds shall be the gross amount the producer receives from the sale of processed uranium concentrate or "yellowcake," provided that the uranium concentrate is sold under a bona fide contract of sale between unaffiliated parties.
(b) If the metals or metalliferous mineral products are not actually sold but are shipped, transported, or delivered out of state, the gross proceeds shall be the multiple of the recoverable units of finished metals, or of the finished metals contained in the metalliferous minerals shipped, and the average daily price per unit of contained metals as quoted by an established authority for market prices of metals for the period during which the tax imposed by this chapter is due. The established authority or authorities shall be designated by the commission by rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) In the case of metals or metalliferous minerals not sold, but otherwise disposed of, for which there is no established authority for market prices of metals for the period during which the tax imposed by this chapter is due, gross proceeds is determined by allocating to the state the same proportion of the producer's total sales of metals or metalliferous minerals sold or otherwise disposed of as the producer's total Utah costs bear to the total costs associated with sale or disposal of the metal or metalliferous mineral.
(d) In the event of a sale of metals or metalliferous minerals between affiliated companies which is not a bona fide sale because the value received is not proportionate to the fair market value of the metals or metalliferous minerals or in the event that Subsection (1)(a), (b), or (c) are not applicable, the commission shall determine the value of such metals or metalliferous minerals in an equitable manner by reference to an objective standard as specified in a rule adopted in accordance with the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) For all metals except beryllium, the taxable value of the metalliferous mineral sold or otherwise disposed of is 30% of the gross proceeds received for the metals sold or otherwise disposed of by the producer of the metal.
(3) (a) Beginning on January 1, 1990, through December 31, 2004, for beryllium sold or otherwise disposed of, the taxable value is 20% of the gross proceeds received for the beryllium sold or otherwise disposed of by the producer.
(b) (i) Notwithstanding Subsection (1) or (4) and subject to Subsection (3)(b)(ii), beginning on January 1, 2005, the taxable value of beryllium sold or otherwise disposed of by the producer of the beryllium is equal to 125% of the direct mining costs incurred in mining the beryllium.
(ii) For an action or proceeding filed on or after January 1, 2005, if the taxable value of beryllium is calculated under Subsection (3)(a) for purposes of imposing a tax on beryllium under this part, the taxable value of beryllium calculated under Subsection (3)(a) may not exceed the taxable value of beryllium calculated under Subsection (3)(b)(i).
(4) Except as provided in Subsection (3), if the metalliferous mineral sold or otherwise disposed of is sold or shipped out of state in the form of ore, then the taxable value is 80% of the gross proceeds.
Section 992. Section 59-5-204 is amended to read:
59-5-204
. Statements filed -- Contents -- Verification -- Falsification as perjury.(1) Every person engaged in the business of mining or extracting metalliferous minerals shall make and file with the commission, on or before June 1 of each year on forms furnished by the commission, a statement containing:
(a) the name, description, and location of the mine owned and operated by the person during the preceding calendar year;
(b) the number of tons of mineral mined during the preceding calendar year and the disposition of the mineral;
(c) the total amount received during the preceding calendar year from the sale of minerals; and
(d) such other reasonable and necessary information as the commission may require for the proper enforcement of this chapter as specified in a rule adopted under [Title 63, Chapter 46a] Title 63G, Chapter 3, the Administrative Rulemaking Act.
(2) The owner of the mine shall be responsible for the statement or report required by this section, but the principal lessee, contractor, or operator may, with the consent of the commission, report and pay the tax as agent for the owner. The owner shall be entitled to deduct and remit to the commission any tax chargeable upon the operations conducted by the lessees or other parties.
(3) The statements or reports required to be filed with the commission shall be signed and sworn to by the person required to file the statements or reports, by a partner if a partnership, or by the president, secretary, or managing officer, if a corporation. Any willful false swearing as to the purported material facts set out in this report constitutes the crime of perjury and shall be punished as such under Title 76, the Utah Criminal Code.
Section 993. Section 59-5-210 is amended to read:
59-5-210
. Decisions of commission.Every decision of the commission shall be in writing and notice of the decision shall be mailed to the taxpayer within ten days. All decisions become final upon the expiration of 30 days after notice has been mailed to the taxpayer, unless proceedings are taken within such time for a review in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, in which case it becomes final as specified in the Administrative Procedures Act.
Section 994. Section 59-6-104 is amended to read:
59-6-104
. State laws applicable to chapter -- Rules of commission.(1) The provisions of Title 59, Chapter 10, applicable to withholding of taxes by employers under Title 59, Chapter 10, Part 4, relating to records, penalties, interest, deficiencies, overpayments, refunds, assessments, venue, and civil and criminal penalties are applicable to the withholding and payment of withheld taxes under this chapter to the extent that those provisions are consistent with this chapter.
(2) The commission may adopt rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, the Administrative Rulemaking Act, necessary to effectuate the purposes of this chapter.
Section 995. Section 59-7-101 is amended to read:
59-7-101
. Definitions.As used in this chapter:
(1) "Adjusted income" means unadjusted income as modified by Sections 59-7-105 and 59-7-106.
(2) (a) "Affiliated group" means one or more chains of corporations that are connected through stock ownership with a common parent corporation that meet the following requirements:
(i) at least 80% of the stock of each of the corporations in the group, excluding the common parent corporation, is owned by one or more of the other corporations in the group; and
(ii) the common parent directly owns at least 80% of the stock of at least one of the corporations in the group.
(b) "Affiliated group" does not include corporations that are qualified to do business but are not otherwise doing business in this state.
(c) For purposes of this Subsection (2), "stock" does not include nonvoting stock which is limited and preferred as to dividends.
(3) "Apportionable income" means adjusted income less nonbusiness income net of related expenses, to the extent included in adjusted income.
(4) "Apportioned income" means apportionable income multiplied by the apportionment fraction as determined in Section 59-7-311.
(5) "Business income" is as defined in Section 59-7-302.
(6) "Corporate return" or "return" includes a combined report.
(7) (a) "Common ownership" means the direct or indirect control or ownership of more than 50% of the outstanding voting stock of:
(i) a parent-subsidiary controlled group as defined in Section 1563, Internal Revenue Code, except that 50% shall be substituted for 80%;
(ii) a brother-sister controlled group as defined in Section 1563, Internal Revenue Code, except that 50% shall be substituted for 80%; or
(iii) three or more corporations each of which is a member of a group of corporations described in Subsection (2)(a)(i) or (2)(a)(ii), and one of which is:
(A) a common parent corporation included in a group of corporations described in Subsection (2)(a)(i); and
(B) included in a group of corporations described in Subsection (2)(a)(ii).
(b) Ownership of outstanding voting stock shall be determined by Section 1563, Internal Revenue Code.
(8) "Corporation" includes:
(a) entities defined as corporations under Sections 7701(a) and 7704, Internal Revenue Code; and
(b) other organizations that are taxed as corporations for federal income tax purposes under the Internal Revenue Code.
(9) "Dividend" means any distribution, including money or other type of property, made by a corporation to its shareholders out of its earnings or profits accumulated after December 31, 1930.
(10) (a) "Doing business" includes any transaction in the course of its business by a domestic corporation, or by a foreign corporation qualified to do or doing intrastate business in this state.
(b) Except as provided in Subsection 59-7-102(2), "doing business" includes:
(i) the right to do business through incorporation or qualification;
(ii) the owning, renting, or leasing of real or personal property within this state; and
(iii) the participation in joint ventures, working and operating agreements, the performance of which takes place in this state.
(11) "Domestic corporation" means a corporation that is incorporated or organized under the laws of this state.
(12) (a) "Farmers' cooperative" means an association, corporation, or other organization that is:
(i) (A) an association, corporation, or other organization of:
(I) farmers; or
(II) fruit growers; or
(B) an association, corporation, or other organization that is similar to an association, corporation, or organization described in Subsection (12)(a)(i)(A); and
(ii) organized and operated on a cooperative basis to:
(A) (I) market the products of members of the cooperative or the products of other producers; and
(II) return to the members of the cooperative or other producers the proceeds of sales less necessary marketing expenses on the basis of the quantity of the products of a member or producer or the value of the products of a member or producer; or
(B) (I) purchase supplies and equipment for the use of members of the cooperative or other persons; and
(II) turn over the supplies and equipment described in Subsection (12)(a)(ii)(B)(I) at actual costs plus necessary expenses to the members of the cooperative or other persons.
(b) (i) Subject to Subsection (12)(b)(ii), for purposes of this Subsection (12), the commission by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define:
(A) the terms:
(I) "member"; and
(II) "producer"; and
(B) what constitutes an association, corporation, or other organization that is similar to an association, corporation, or organization described in Subsection (12)(a)(i)(A).
(ii) The rules made under this Subsection (12)(b) shall be consistent with the filing requirements under federal law for a farmers' cooperative.
(13) "Foreign corporation" means a corporation that is not incorporated or organized under the laws of this state.
(14) (a) "Foreign operating company" means a corporation that:
(i) is incorporated in the United States; and
(ii) 80% or more of whose business activity, as determined under Section 59-7-401, is conducted outside the United States.
(b) "Foreign operating company" does not include a corporation that qualifies for the Puerto Rico and Possession Tax Credit as provided in Section 936, Internal Revenue Code.
(15) "Income" includes losses.
(16) "Internal Revenue Code" means Title 26 of the United States Code as effective during the year in which Utah taxable income is determined.
(17) "Nonbusiness income" is as defined in Section 59-7-302.
(18) "Nonresident shareholder" means any shareholder of an S corporation who on the last day of the taxable year of the S corporation, is:
(a) an individual not domiciled in Utah; or
(b) a nonresident trust or nonresident estate, as defined in Section 59-10-103.
(19) "Related expenses" means:
(a) expenses directly attributable to nonbusiness income; and
(b) the portion of interest or other expense indirectly attributable to both nonbusiness and business income which bears the same ratio to the aggregate amount of such interest or other expense, determined without regard to this Subsection (19), as the average amount of the asset producing the nonbusiness income bears to the average amount of all assets of the taxpayer within the taxable year.
(20) "Resident shareholder" means any shareholder of an S corporation who is not a nonresident shareholder.
(21) "S corporation" means an S corporation as defined in Section 1361, Internal Revenue Code.
(22) "Safe harbor lease" means a lease that qualified as a safe harbor lease under Section 168, Internal Revenue Code.
(23) "State of the United States" includes any of the 50 states or the District of Columbia and "United States" includes the 50 states and the District of Columbia.
(24) (a) "Taxable year" means the calendar year or the fiscal year ending during such calendar year upon the basis of which the adjusted income is computed.
(b) In the case of a return made for a fractional part of a year under this chapter or under rules prescribed by the commission, "taxable year" includes the period for which such return is made.
(25) "Taxpayer" means any corporation subject to the tax imposed by this chapter.
(26) "Threshold level of business activity" means business activity in the United States equal to or greater than 20% of the corporation's total business activity as determined under Section 59-7-401.
(27) "Unadjusted income" means federal taxable income as determined on a separate return basis before intercompany eliminations as determined by the Internal Revenue Code, before the net operating loss deduction and special deductions for dividends received.
(28) (a) "Unitary group" means a group of corporations that:
(i) are related through common ownership; and
(ii) by a preponderance of the evidence as determined by a court of competent jurisdiction or the commission, are economically interdependent with one another as demonstrated by the following factors:
(A) centralized management;
(B) functional integration; and
(C) economies of scale.
(b) "Unitary group" does not include S corporations.
(29) "Utah net loss" means the current year Utah taxable income before Utah net loss deduction, if determined to be less than zero.
(30) "Utah net loss deduction" means the amount of Utah net losses from other taxable years that may be carried back or carried forward to the current taxable year in accordance with Section 59-7-110.
(31) (a) "Utah taxable income" means Utah taxable income before net loss deduction less Utah net loss deduction.
(b) "Utah taxable income" includes income from tangible or intangible property located or having situs in this state, regardless of whether carried on in intrastate, interstate, or foreign commerce.
(32) "Utah taxable income before net loss deduction" means apportioned income plus nonbusiness income allocable to Utah net of related expenses.
(33) (a) "Water's edge combined report" means a report combining the income and activities of:
(i) all members of a unitary group that are:
(A) corporations organized or incorporated in the United States, including those corporations qualifying for the Puerto Rico and Possession Tax Credit as provided in Section 936, Internal Revenue Code, in accordance with Subsection (33)(b); and
(B) corporations organized or incorporated outside of the United States meeting the threshold level of business activity; and
(ii) an affiliated group electing to file a water's edge combined report under Subsection 59-7-402(2).
(b) There is a rebuttable presumption that a corporation which qualifies for the Puerto Rico and Possession Tax Credit provided in Section 936, Internal Revenue Code, is part of a unitary group.
(34) "Worldwide combined report" means the combination of the income and activities of all members of a unitary group irrespective of the country in which the corporations are incorporated or conduct business activity.
Section 996. Section 59-7-311 is amended to read:
59-7-311
. Method of apportionment of business income.(1) All business income shall be apportioned to this state by multiplying the business income by a fraction calculated as provided in Subsection (2).
(2) The fraction described in Subsection (1) is calculated as follows:
(a) for a taxpayer that does not make an election authorized by Subsection (3):
(i) the numerator of the fraction is the sum of:
(A) the property factor as calculated under Section 59-7-312;
(B) the payroll factor as calculated under Section 59-7-315; and
(C) the sales factor as calculated under Section 59-7-317; and
(ii) the denominator of the fraction is three; and
(b) for a taxpayer that makes an election authorized by Subsection (3):
(i) the numerator of the fraction is the sum of:
(A) the property factor as calculated under Section 59-7-312;
(B) the payroll factor as calculated under Section 59-7-315; and
(C) the product of:
(I) the sales factor as calculated under Section 59-7-317; and
(II) two; and
(ii) the denominator of the fraction is four.
(3) (a) For purposes of Subsection (2) and subject to Subsection (3)(b), for taxable years beginning on or after January 1, 2006, a taxpayer may elect to calculate the fraction for apportioning business income under this section in accordance with Subsection (2)(b).
(b) If a taxpayer makes the election described in Subsection (3)(a), the taxpayer may not revoke the election for a period of five taxable years.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules providing procedures for a taxpayer to make the election described in Subsection (3)(a).
Section 997. Section 59-7-610 is amended to read:
59-7-610
. Recycling market development zones tax credit.(1) For taxable years beginning on or after January 1, 1996, a business operating in a recycling market development zone as defined in Section [63-38f-1102] 63M-1-1102 may claim a tax credit as provided in this section.
(a) (i) There shall be allowed a nonrefundable tax credit of 5% of the purchase price paid for machinery and equipment used directly in:
(A) commercial composting; or
(B) manufacturing facilities or plant units that:
(I) manufacture, process, compound, or produce recycled items of tangible personal property for sale; or
(II) reduce or reuse postconsumer waste material.
(ii) The Governor's Office of Economic Development shall certify that the machinery and equipment described in Subsection (1)(a)(i) are integral to the composting or recycling process:
(A) on a form provided by the commission; and
(B) before a taxpayer is allowed a tax credit under this section.
(iii) The Governor's Office of Economic Development shall provide a taxpayer seeking to claim a tax credit under this section with a copy of the form described in Subsection (1)(a)(ii).
(iv) The taxpayer described in Subsection (1)(a)(iii) shall retain a copy of the form received under Subsection (1)(a)(iii).
(b) There shall be allowed a nonrefundable tax credit equal to 20% of net expenditures up to $10,000 to third parties for rent, wages, supplies, tools, test inventory, and utilities made by the taxpayer for establishing and operating recycling or composting technology in Utah, with an annual maximum tax credit of $2,000.
(2) The total nonrefundable tax credit allowed under this section may not exceed 40% of the Utah income tax liability of the taxpayer prior to any tax credits in the taxable year of purchase prior to claiming the tax credit authorized by this section.
(3) (a) Any tax credit not used for the taxable year in which the purchase price on composting or recycling machinery and equipment was paid may be carried over for credit against the business' income taxes in the three succeeding taxable years until the total tax credit amount is used.
(b) Tax credits not claimed by a business on the business' state income tax return within three years are forfeited.
(4) The commission shall make rules governing what information shall be filed with the commission to verify the entitlement to and amount of a tax credit.
(5) (a) Notwithstanding Subsection (1)(a), for taxable years beginning on or after January 1, 2001, a taxpayer may not claim or carry forward a tax credit described in Subsection (1)(a) in a taxable year during which the taxpayer claims or carries forward a tax credit under Section [63-38f-413] 63M-1-413.
(b) For a taxable year other than a taxable year during which the taxpayer may not claim or carry forward a tax credit in accordance with Subsection (5)(a), a taxpayer may claim or carry forward a tax credit described in Subsection (1)(a):
(i) if the taxpayer may claim or carry forward the tax credit in accordance with Subsections (1) and (2); and
(ii) subject to Subsections (3) and (4).
(6) Notwithstanding Subsection (1)(b), for taxable years beginning on or after January 1, 2001, a taxpayer may not claim a tax credit described in Subsection (1)(b) in a taxable year during which the taxpayer claims or carries forward a tax credit under Section [63-38f-413] 63M-1-413.
(7) A taxpayer may not claim or carry forward a tax credit available under this section for a taxable year during which the taxpayer has claimed the targeted business income tax credit available under Section [63-38f-503] 63M-1-504.
Section 998. Section 59-7-612 (Superseded 01/01/08) is amended to read:
59-7-612 (Superseded 01/01/08)
. Credits for research activities conducted in the state -- Carry forward -- Commission to report modification or repeal of federal credits -- Tax Review Commission study.(1) (a) For taxable years beginning on or after January 1, 1999, but beginning before December 31, 2010, a taxpayer meeting the requirements of this section shall qualify for the following nonrefundable credits for increasing research activities in this state:
(i) a research credit of 6% of the taxpayer's qualified research expenses for the current taxable year that exceed the base amount provided for under Subsection (4); and
(ii) a credit for payments to qualified organizations for basic research as provided in Section 41(e), Internal Revenue Code, of 6% for the current taxable year that exceed the base amount provided for under Subsection (4).
(b) If a taxpayer qualifying for a credit under Subsection (1)(a) seeks to claim the credit, the taxpayer shall:
(i) claim the credit or a portion of the credit for the taxable year immediately following the taxable year for which the taxpayer qualifies for the credit;
(ii) carry the credit or a portion of the credit forward as provided in Subsection (4)(f); or
(iii) claim a portion of the credit and carry forward a portion of the credit as provided in Subsections (1)(b)(i) and (ii).
(c) The credits provided for in this section do not include the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code.
(2) For purposes of claiming a credit under this section, a unitary group as defined in Section 59-7-101 is considered to be one taxpayer.
(3) Except as specifically provided for in this section:
(a) the credits authorized under Subsection (1) shall be calculated as provided in Section 41, Internal Revenue Code; and
(b) the definitions provided in Section 41, Internal Revenue Code, apply in calculating the credits authorized under Subsection (1).
(4) For purposes of this section:
(a) the base amount shall be calculated as provided in Sections 41(c) and 41(h), Internal Revenue Code, except that:
(i) the base amount does not include the calculation of the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code;
(ii) a taxpayer's gross receipts include only those gross receipts attributable to sources within this state as provided in Part 3, Allocation and Apportionment of Income -- Utah UDITPA Provisions; and
(iii) notwithstanding Section 41(c), Internal Revenue Code, for purposes of calculating the base amount, a taxpayer:
(A) may elect to be treated as a start-up company as provided in Section 41(c)(3)(B) regardless of whether the taxpayer meets the requirements of Section 41(c)(3)(B)(i)(I) or (II); and
(B) may not revoke an election to be treated as a start-up company under Subsection (4)(a)(iii)(A);
(b) "basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state;
(c) "qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state;
(d) "qualified research expenses" is as defined and calculated in Section 41(b), Internal Revenue Code, except that the term includes only those expenses incurred in conducting qualified research in this state;
(e) notwithstanding the provisions of Section 41(h), Internal Revenue Code, the credits provided for in this section shall not terminate if the credits terminate under Section 41, Internal Revenue Code; and
(f) notwithstanding the provisions of Sections 39 and 41(g), Internal Revenue Code, governing the carry forward and carry back of federal tax credits, if the amount of a tax credit claimed by a taxpayer under this section exceeds the taxpayer's tax liability under this chapter for a taxable year, the amount of the credit exceeding the liability:
(i) may be carried forward for a period that does not exceed the next 14 taxable years; and
(ii) may not be carried back to a taxable year preceding the current taxable year.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that amounts paid to the qualified organizations are for basic research conducted in this state.
(6) If a federal tax credit under Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
(7) (a) Except as provided in Subsection (7)(b), the Tax Review Commission shall review the credits provided for in this section on or before the earlier of:
(i) October 1 of the year after the year in which the commission reports under Subsection (6) a modification or repeal of a federal tax credit under Section 41, Internal Revenue Code; or
(ii) October 1, 2004.
(b) Notwithstanding Subsection (7)(a), the Tax Review Commission is not required to review the credits provided for in this section if the only modification to a federal tax credit under Section 41, Internal Revenue Code, is the extension of the termination date provided for in Section 41(h), Internal Revenue Code.
(c) The Tax Review Commission shall address in a review under this section the:
(i) cost of the credit;
(ii) purpose and effectiveness of the credit;
(iii) whether the credit benefits the state; and
(iv) whether the credit should be:
(A) continued;
(B) modified; or
(C) repealed.
(d) If the Tax Review Commission reviews the credits provided for in this section, the Tax Review Commission shall report its findings to the Revenue and Taxation Interim Committee on or before the November interim meeting of the year in which the Tax Review Commission reviews the credits.
Section 999. Section 59-7-612 (Effective 01/01/08) is amended to read:
59-7-612 (Effective 01/01/08)
. Tax credits for research activities conducted in the state -- Carry forward -- Commission to report modification or repeal of certain federal provisions -- Utah Tax Review Commission study.(1) (a) A taxpayer meeting the requirements of this section may claim the following nonrefundable tax credits:
(i) a research tax credit of 7% of the taxpayer's qualified research expenses for the current taxable year that exceed the base amount provided for under Subsection (4);
(ii) a tax credit for payments to qualified organizations for basic research as provided in Section 41(e), Internal Revenue Code, of 7% for the current taxable year that exceed the base amount provided for under Subsection (4); and
(iii) a tax credit equal to 5% of the taxpayer's qualified research expenses for the current taxable year.
(b) (i) Except as provided in Subsection (1)(b)(ii), a taxpayer may:
(A) claim the tax credit or a portion of the tax credit for the taxable year immediately following the taxable year for which the taxpayer qualifies for the tax credit;
(B) carry forward the tax credit or a portion of the tax credit as provided in Subsection (5); or
(C) claim a portion of the tax credit and carry forward a portion of the tax credit as provided in Subsections (1)(b)(i)(A) and (B).
(ii) A taxpayer may not carry forward the tax credit allowed by Subsection (1)(a)(iii).
(c) The tax credits provided for in this section do not include the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code.
(2) For purposes of claiming a tax credit under this section, a unitary group as defined in Section 59-7-101 is considered to be one taxpayer.
(3) Except as specifically provided for in this section:
(a) the tax credits authorized under Subsection (1) shall be calculated as provided in Section 41, Internal Revenue Code; and
(b) the definitions provided in Section 41, Internal Revenue Code, apply in calculating the tax credits authorized under Subsection (1).
(4) For purposes of this section:
(a) the base amount shall be calculated as provided in Sections 41(c) and 41(h), Internal Revenue Code, except that:
(i) the base amount does not include the calculation of the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code;
(ii) a taxpayer's gross receipts include only those gross receipts attributable to sources within this state as provided in Part 3, Allocation and Apportionment of Income -- Utah UDITPA Provisions; and
(iii) notwithstanding Section 41(c), Internal Revenue Code, for purposes of calculating the base amount, a taxpayer:
(A) may elect to be treated as a start-up company as provided in Section 41(c)(3)(B) regardless of whether the taxpayer meets the requirements of Section 41(c)(3)(B)(i)(I) or (II); and
(B) may not revoke an election to be treated as a start-up company under Subsection (4)(a)(iii)(A);
(b) "basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state;
(c) "qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state;
(d) "qualified research expenses" is as defined and calculated in Section 41(b), Internal Revenue Code, except that the term includes only:
(i) in-house research expenses incurred in this state; and
(ii) contract research expenses incurred in this state; and
(e) a tax credit provided for in this section is not terminated if a credit terminates under Section 41, Internal Revenue Code.
(5) If the amount of a tax credit claimed by a taxpayer under Subsection (1)(a)(i) or (ii) exceeds the taxpayer's tax liability under this chapter for a taxable year, the amount of the tax credit exceeding the tax liability:
(a) may be carried forward for a period that does not exceed the next 14 taxable years; and
(b) may not be carried back to a taxable year preceding the current taxable year.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that amounts paid to the qualified organizations are for basic research conducted in this state.
(7) If a provision of Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Utah Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
(8) (a) The Utah Tax Review Commission shall review the tax credits provided for in this section on or before October 1 of the year after the year in which the commission reports under Subsection (7) a modification or repeal of a provision of Section 41, Internal Revenue Code.
(b) Notwithstanding Subsection (8)(a), the Utah Tax Review Commission is not required to review the tax credits provided for in this section if the only modification to a provision of Section 41, Internal Revenue Code, is the extension of the termination date provided for in Section 41(h), Internal Revenue Code.
(c) The Utah Tax Review Commission shall address in a review under this section:
(i) the cost of the tax credits provided for in this section;
(ii) the purpose and effectiveness of the tax credits provided for in this section;
(iii) whether the tax credits provided for in this section benefit the state; and
(iv) whether the tax credits provided for in this section should be:
(A) continued;
(B) modified; or
(C) repealed.
(d) If the Utah Tax Review Commission reviews the tax credits provided for in this section, the Utah Tax Review Commission shall report its findings to the Revenue and Taxation Interim Committee on or before the November interim meeting of the year in which the Utah Tax Review Commission reviews the tax credits.
Section 1000. Section 59-7-613 is amended to read:
59-7-613
. Credits for machinery, equipment, or both primarily used for conducting qualified research or basic research -- Carry forward -- Commission to report modification or repeal of federal credits -- Tax Review Commission study.(1) As used in this section:
(a) "Basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state.
(b) "Equipment" includes:
(i) computers;
(ii) computer equipment; and
(iii) computer software.
(c) "Purchase price":
(i) includes the cost of installing an item of machinery or equipment; and
(ii) does not include sales or use taxes imposed on an item of machinery or equipment.
(d) "Qualified organization" is as defined in Section 41(e)(6), Internal Revenue Code.
(e) "Qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state.
(2) (a) Except as provided in Subsection (2)(c), for taxable years beginning on or after January 1, 1999, but beginning before December 31, 2010, a taxpayer shall qualify for the following nonrefundable credits for the taxable year in which the machinery, equipment, or both, meets the requirements of either Subsection (2)(a)(i) or (2)(a)(ii):
(i) a credit of 6% of the purchase price of either machinery, equipment, or both:
(A) purchased by the taxpayer during the taxable year;
(B) that is not exempt from sales or use taxes; and
(C) that is primarily used to conduct qualified research in this state; and
(ii) a credit of 6% of the purchase price of either machinery, equipment, or both:
(A) purchased by the taxpayer during the taxable year;
(B) that is not exempt from sales or use taxes;
(C) that is donated to a qualified organization; and
(D) that is primarily used to conduct basic research in this state.
(b) If a taxpayer qualifying for a credit under Subsection (2)(a) seeks to claim the credit, the taxpayer shall:
(i) claim the credit or a portion of the credit for the taxable year immediately following the taxable year for which the taxpayer qualifies for the credit;
(ii) carry the credit or a portion of the credit forward as provided in Subsection (5); or
(iii) claim a portion of the credit and carry forward a portion of the credit as provided in Subsections (2)(b)(i) and (ii).
(c) Notwithstanding Subsection (2)(a), if a taxpayer qualifies for a credit under Subsection (2)(a) for a purchase of machinery, equipment, or both, the taxpayer may not claim the credit or carry the credit forward if the machinery, equipment, or both, is primarily used to conduct qualified research in the state for a time period that is less than 12 consecutive months.
(3) For purposes of claiming a credit under this section, a unitary group as defined in Section 59-7-101 is considered to be one taxpayer.
(4) Notwithstanding the provisions of Section 41(h), Internal Revenue Code, the credits provided for in this section shall not terminate if the credits terminate under Section 41, Internal Revenue Code.
(5) Notwithstanding the provisions of Sections 39 and 41(g), Internal Revenue Code, governing the carry forward and carry back of federal tax credits, if the amount of a tax credit claimed by a taxpayer under this section exceeds the taxpayer's tax liability under this chapter for a taxable year, the amount of the credit exceeding the liability:
(a) may be carried forward for a period that does not exceed the next 14 taxable years; and
(b) may not be carried back to a taxable year preceding the current taxable year.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that either machinery, equipment, or both provided to the qualified organization is to be primarily used to conduct basic research in this state.
(7) If a federal tax credit under Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
(8) (a) Except as provided in Subsection (8)(b), the Tax Review Commission shall review the credits provided for in this section on or before the earlier of:
(i) October 1 of the year after the year in which the commission reports under Subsection (7) a modification or repeal of a federal tax credit under Section 41, Internal Revenue Code; or
(ii) October 1, 2004.
(b) Notwithstanding Subsection (8)(a), the Tax Review Commission is not required to review the credits provided for in this section if the only modification to a federal tax credit under Section 41, Internal Revenue Code, is the extension of the termination date provided for in Section 41(h), Internal Revenue Code.
(c) The Tax Review Commission shall address in a review under this section the:
(i) cost of the credit;
(ii) purpose and effectiveness of the credit;
(iii) whether the credit benefits the state; and
(iv) whether the credit should be:
(A) continued;
(B) modified; or
(C) repealed.
(d) If the Tax Review Commission reviews the credits provided for in this section, the Tax Review Commission shall report its findings to the Revenue and Taxation Interim Committee on or before the November interim meeting of the year in which the Tax Review Commission reviews the credits.
Section 1001. Section 59-7-614.1 is amended to read:
59-7-614.1
. Refundable tax credit for hand tools used in farming operations -- Procedures for refund -- Transfers from General Fund to Education Fund -- Rulemaking authority.(1) For taxable years beginning on or after January 1, 2004, a taxpayer may claim a refundable tax credit:
(a) as provided in this section;
(b) against taxes otherwise due under this chapter; and
(c) in an amount equal to the amount of tax the taxpayer pays:
(i) on a purchase of a hand tool:
(A) if the purchase is made on or after July 1, 2004;
(B) if the hand tool is used or consumed primarily and directly in a farming operation in the state; and
(C) if the unit purchase price of the hand tool is more than $250; and
(ii) under Chapter 12, Sales and Use Tax Act, on the purchase described in Subsection (1)(c)(i).
(2) A taxpayer:
(a) shall retain the following to establish the amount of tax the resident or nonresident individual paid under Chapter 12, Sales and Use Tax Act, on the purchase described in Subsection (1)(c)(i):
(i) a receipt;
(ii) an invoice; or
(iii) a document similar to a document described in Subsection (2)(a)(i) or (ii); and
(b) may not carry forward or carry back a tax credit under this section.
(3) (a) In accordance with any rules prescribed by the commission under Subsection (3)(b), the commission shall:
(i) make a refund to a taxpayer that claims a tax credit under this section if the amount of the tax credit exceeds the taxpayer's tax liability under this chapter; and
(ii) transfer at least annually from the General Fund into the Education Fund an amount equal to the amount of tax credit claimed under this section.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules providing procedures for making:
(i) a refund to a taxpayer as required by Subsection (3)(a)(i); or
(ii) transfers from the General Fund into the Education Fund as required by Subsection (3)(a)(ii).
Section 1002. Section 59-7-703 is amended to read:
59-7-703
. Payment or withholding of tax on behalf of nonresident shareholders -- Rate.(1) As used in this section, "return" means:
(a) if a nonresident shareholder is required to file a return under this chapter, a return filed under this chapter; or
(b) if a nonresident shareholder is required to file a return under Chapter 10, Individual Income Tax Act, a return filed under Chapter 10, Individual Income Tax Act.
(2) (a) Except as provided in Subsection (4), an S corporation shall pay or withhold a tax on behalf of any nonresident shareholder.
(b) The amount paid or withheld by an S corporation under Subsection (2)(a) shall be determined by:
(i) calculating the items of income or loss from federal form 1120S, Schedule K;
(ii) applying the apportionment formula to determine the amount apportioned to Utah;
(iii) reducing the amount apportioned to Utah by the percentage of ownership attributable to resident shareholders; and
(iv) applying the rate to the remaining balance.
(3) (a) For a nonresident shareholder who is required to file a return under this chapter:
(i) the nonresident shareholder may claim a credit on the nonresident shareholder's return for the amount of tax paid or withheld by the S corporation on behalf of the nonresident shareholder;
(ii) if the nonresident shareholder has no other Utah source income, the nonresident shareholder may elect:
(A) not to claim the credit provided under Subsection (3)(a)(i); and
(B) not to file a return for the taxable year; and
(iii) if the nonresident shareholder may claim credits other than the credit described in Subsection (3)(a)(i), the nonresident shareholder shall file a return to claim those credits.
(b) If a nonresident shareholder is required to file a return under Chapter 10, Individual Income Tax Act, the nonresident shareholder is subject to Section 59-10-1103.
(4) Notwithstanding Subsection (2), the obligation to pay or withhold a tax under Subsection (2) does not apply to an organization that is exempt under Subsection 59-7-102(1)(a) from the taxes imposed by this chapter.
(5) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall by rule determine the rate at which an S corporation shall withhold for nonresident shareholders.
(b) The rate described in Subsection (5)(a) shall be consistent with the composite tax rate paid by partnerships.
(6) (a) If an S corporation fails to pay or withhold a tax as provided in this section, and thereafter the income subject to payment or withholding is reported and the resulting tax is paid by a nonresident shareholder, any tax required to be paid or withheld may not be collected from the S corporation.
(b) A nonresident shareholder's payment under Subsection (6)(a) does not relieve the S corporation from liability for penalties or interest associated with failure to pay or withhold a tax as provided in this section.
(7) Penalties, refunds, assessments, and required records for S corporations shall be governed by:
(a) this chapter if a nonresident shareholder is subject to this chapter; or
(b) Chapter 10, Individual Income Tax Act, if a nonresident shareholder is subject to Chapter 10, Individual Income Tax Act.
(8) (a) An S corporation shall furnish each nonresident shareholder a statement showing:
(i) the amount of the nonresident shareholder's share of the corporate earnings from Utah sources; and
(ii) the amount of the withholding from the nonresident shareholder's share of the corporate earnings from Utah sources.
(b) An S corporation shall pay the commission the amount withheld under this section:
(i) by the due date of the corporation's return, not including extensions; and
(ii) on forms furnished by the commission.
Section 1003. Section 59-8-106 is amended to read:
59-8-106
. Rulemaking authority.The commission is charged with the administration and enforcement of this chapter and may promulgate such rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act as may be required to effectuate the purposes of this chapter.
Section 1004. Section 59-8a-106 (Contingently Repealed) is amended to read:
*** Section 59-8a-106 (Contingently Repealed) NOT found
Section 1005. Section 59-10-103 is amended to read:
59-10-103
. Definitions.(1) As used in this chapter:
(a) "Adjusted gross income":
(i) for a resident or nonresident individual, is as defined in Section 62, Internal Revenue Code; or
(ii) for a resident or nonresident estate or trust, is as calculated in Section 67(e), Internal Revenue Code.
(b) "Adoption expenses" means:
(i) any actual medical and hospital expenses of the mother of the adopted child which are incident to the child's birth;
(ii) any welfare agency fees or costs;
(iii) any child placement service fees or costs;
(iv) any legal fees or costs; or
(v) any other fees or costs relating to an adoption.
(c) "Adult with a disability" means an individual who:
(i) is 18 years of age or older;
(ii) is eligible for services under Title 62A, Chapter 5, Services for People with Disabilities; and
(iii) is not enrolled in:
(A) an education program for students with disabilities that is authorized under Section 53A-15-301; or
(B) a school established under Title 53A, Chapter 25, Schools for the Deaf and Blind.
(d) (i) For purposes of Subsection 59-10-114(2)(l), "capital gain transaction" means a transaction that results in a:
(A) short-term capital gain; or
(B) long-term capital gain.
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "transaction."
(e) "Commercial domicile" means the principal place from which the trade or business of a Utah small business corporation is directed or managed.
(f) "Corporation" includes:
(i) associations;
(ii) joint stock companies; and
(iii) insurance companies.
(g) "Dependent child with a disability" means an individual 21 years of age or younger who:
(i) (A) is diagnosed by a school district representative under rules adopted by the State Board of Education as having a disability classified as:
(I) autism;
(II) deafness;
(III) preschool developmental delay;
(IV) dual sensory impairment;
(V) hearing impairment;
(VI) intellectual disability;
(VII) multidisability;
(VIII) orthopedic impairment;
(IX) other health impairment;
(X) traumatic brain injury; or
(XI) visual impairment;
(B) is not receiving residential services from:
(I) the Division of Services for People with Disabilities created under Section 62A-5-102; or
(II) a school established under Title 53A, Chapter 25, Schools for the Deaf and Blind; and
(C) is enrolled in:
(I) an education program for students with disabilities that is authorized under Section 53A-15-301; or
(II) a school established under Title 53A, Chapter 25, Schools for the Deaf and Blind; or
(ii) is identified under guidelines of the Department of Health as qualified for:
(A) Early Intervention; or
(B) Infant Development Services.
(h) "Distributable net income" is as defined in Section 643, Internal Revenue Code.
(i) "Employee" is as defined in Section 59-10-401.
(j) "Employer" is as defined in Section 59-10-401.
(k) "Federal taxable income":
(i) for a resident or nonresident individual, means taxable income as defined by Section 63, Internal Revenue Code; or
(ii) for a resident or nonresident estate or trust, is as calculated in Section 641(a) and (b), Internal Revenue Code.
(l) "Fiduciary" means:
(i) a guardian;
(ii) a trustee;
(iii) an executor;
(iv) an administrator;
(v) a receiver;
(vi) a conservator; or
(vii) any person acting in any fiduciary capacity for any individual.
(m) "Homesteaded land diminished from the Uintah and Ouray Reservation" means the homesteaded land that was held to have been diminished from the Uintah and Ouray Reservation in Hagen v. Utah, 510 U.S. 399 (1994).
(n) "Individual" means a natural person and includes aliens and minors.
(o) "Irrevocable trust" means a trust in which the settlor may not revoke or terminate all or part of the trust without the consent of a person who has a substantial beneficial interest in the trust and the interest would be adversely affected by the exercise of the settlor's power to revoke or terminate all or part of the trust.
(p) For purposes of Subsection 59-10-114(2)(l), "long-term capital gain" is as defined in Section 1222, Internal Revenue Code.
(q) "Nonresident individual" means an individual who is not a resident of this state.
(r) "Nonresident trust" or "nonresident estate" means a trust or estate which is not a resident estate or trust.
(s) (i) "Partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization:
(A) through or by means of which any business, financial operation, or venture is carried on; and
(B) which is not, within the meaning of this chapter:
(I) a trust;
(II) an estate; or
(III) a corporation.
(ii) "Partnership" does not include any organization not included under the definition of "partnership" in Section 761, Internal Revenue Code.
(iii) "Partner" includes a member in a syndicate, group, pool, joint venture, or organization described in Subsection (1)(s)(i).
(t) "Qualifying military servicemember" means a member of:
(i) The Utah Army National Guard;
(ii) The Utah Air National Guard; or
(iii) the following if the member is assigned to a unit that is located in the state:
(A) The Army Reserve;
(B) The Naval Reserve;
(C) The Air Force Reserve;
(D) The Marine Corps Reserve; or
(E) The Coast Guard Reserve.
(u) "Qualifying stock" means stock that is:
(i) (A) common; or
(B) preferred;
(ii) as defined by the commission by rule, originally issued to:
(A) a resident or nonresident individual; or
(B) a partnership if the resident or nonresident individual making a subtraction from federal taxable income in accordance with Subsection 59-10-114(2)(l):
(I) was a partner when the stock was issued; and
(II) remains a partner until the last day of the taxable year for which the resident or nonresident individual makes the subtraction from federal taxable income in accordance with Subsection 59-10-114(2)(l); and
(iii) issued:
(A) by a Utah small business corporation;
(B) on or after January 1, 2003; and
(C) for:
(I) money; or
(II) other property, except for stock or securities.
(v) (i) "Resident individual" means:
(A) an individual who is domiciled in this state for any period of time during the taxable year, but only for the duration of the period during which the individual is domiciled in this state; or
(B) an individual who is not domiciled in this state but:
(I) maintains a permanent place of abode in this state; and
(II) spends in the aggregate 183 or more days of the taxable year in this state.
(ii) For purposes of Subsection (1)(v)(i)(B), a fraction of a calendar day shall be counted as a whole day.
(w) "Resident estate" or "resident trust" is as defined in Section 75-7-103.
(x) For purposes of Subsection 59-10-114(2)(l), "short-term capital gain" is as defined in Section 1222, Internal Revenue Code.
(y) "Taxable income" or "state taxable income":
(i) subject to Subsection 59-10-302(2), for a resident individual other than a resident individual described in Subsection (1)(y)(iii), means the resident individual's federal taxable income after making the:
(A) additions and subtractions required by Section 59-10-114; and
(B) adjustments required by Section 59-10-115;
(ii) for a nonresident individual other than a nonresident individual described in Subsection (1)(y)(iii), is as defined in Section 59-10-116;
(iii) for a resident or nonresident individual that collects and pays a tax described in Part 12, Single Rate Individual Income Tax Act, is as defined in Section 59-10-1202;
(iv) for a resident estate or trust, is as calculated under Section 59-10-201.1; and
(v) for a nonresident estate or trust, is as calculated under Section 59-10-204.
(z) "Taxpayer" means any individual, estate, or trust or beneficiary of an estate or trust, whose income is subject in whole or part to the tax imposed by this chapter.
(aa) "Uintah and Ouray Reservation" means the lands recognized as being included within the Uintah and Ouray Reservation in:
(i) Hagen v. Utah, 510 U.S. 399 (1994); and
(ii) Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997).
(bb) (i) "Utah small business corporation" means a corporation that:
(A) is a small business corporation as defined in Section 1244(c)(3), Internal Revenue Code;
(B) except as provided in Subsection (1)(bb)(ii), meets the requirements of Section 1244(c)(1)(C), Internal Revenue Code; and
(C) has its commercial domicile in this state.
(ii) Notwithstanding Subsection (1)(bb)(i)(B), the time period described in Section 1244(c)(1)(C) and Section 1244(c)(2), Internal Revenue Code, for determining the source of a corporation's aggregate gross receipts shall end on the last day of the taxable year for which the resident or nonresident individual makes a subtraction from federal taxable income in accordance with Subsection 59-10-114(2)(l).
(cc) "Ute tribal member" means a person who is enrolled as a member of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(dd) "Ute tribe" means the Ute Indian Tribe of the Uintah and Ouray Reservation.
(ee) "Wages" is as defined in Section 59-10-401.
(2) (a) Any term used in this chapter has the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes unless a different meaning is clearly required.
(b) Any reference to the Internal Revenue Code or to the laws of the United States shall mean the Internal Revenue Code or other provisions of the laws of the United States relating to federal income taxes that are in effect for the taxable year.
(c) Any reference to a specific section of the Internal Revenue Code or other provision of the laws of the United States relating to federal income taxes shall include any corresponding or comparable provisions of the Internal Revenue Code as hereafter amended, redesignated, or reenacted.
Section 1006. Section 59-10-114 is amended to read:
59-10-114
. Additions to and subtractions from federal taxable income of an individual.(1) There shall be added to federal taxable income of a resident or nonresident individual:
(a) the amount of any income tax imposed by this or any predecessor Utah individual income tax law and the amount of any income tax imposed by the laws of another state, the District of Columbia, or a possession of the United States, to the extent deducted from adjusted gross income in determining federal taxable income;
(b) a lump sum distribution that the taxpayer does not include in adjusted gross income on the taxpayer's federal individual income tax return for the taxable year;
(c) for taxable years beginning on or after January 1, 2002, the amount of a child's income calculated under Subsection (5) that:
(i) a parent elects to report on the parent's federal individual income tax return for the taxable year; and
(ii) the parent does not include in adjusted gross income on the parent's federal individual income tax return for the taxable year;
(d) 25% of the personal exemptions, as defined and calculated in the Internal Revenue Code;
(e) a withdrawal from a medical care savings account and any penalty imposed in the taxable year if:
(i) the resident or nonresident individual did not deduct or include the amounts on the resident or nonresident individual's federal individual income tax return pursuant to Section 220, Internal Revenue Code;
(ii) the withdrawal is subject to Subsections 31A-32a-105(1) and (2); and
(iii) the withdrawal is deducted by the resident or nonresident individual under Subsection (2)(h);
(f) the amount withdrawn under Title 53B, Chapter 8a, Higher Education Savings Incentive Program, from the account of a resident or nonresident individual who is an account owner as defined in Section 53B-8a-102, for the taxable year for which the amount is withdrawn, if that amount withdrawn from the account of the resident or nonresident individual who is the account owner:
(i) is not expended for higher education costs as defined in Section 53B-8a-102; and
(ii) is:
(A) subtracted by the resident or nonresident individual:
(I) who is the account owner; and
(II) in accordance with Subsection (2)(i); or
(B) used as the basis for the resident or nonresident individual who is the account owner to claim a tax credit under Section 59-10-1206.1;
(g) except as provided in Subsection (6), for taxable years beginning on or after January 1, 2003, for bonds, notes, and other evidences of indebtedness acquired on or after January 1, 2003, the interest from bonds, notes, and other evidences of indebtedness issued by one or more of the following entities:
(i) a state other than this state;
(ii) the District of Columbia;
(iii) a political subdivision of a state other than this state; or
(iv) an agency or instrumentality of an entity described in Subsections (1)(g)(i) through (iii);
(h) subject to Subsection (2)(n), any distribution received by a resident beneficiary of a resident trust of income that was taxed at the trust level for federal tax purposes, but was subtracted from state taxable income of the trust pursuant to Subsection 59-10-202(2)(c);
(i) any distribution received by a resident beneficiary of a nonresident trust of undistributed distributable net income realized by the trust on or after January 1, 2004, if that undistributed distributable net income was taxed at the trust level for federal tax purposes, but was not taxed at the trust level by any state, with undistributed distributable net income considered to be distributed from the most recently accumulated undistributed distributable net income; and
(j) any adoption expense:
(i) for which a resident or nonresident individual receives reimbursement from another person; and
(ii) to the extent to which the resident or nonresident individual deducts that adoption expense:
(A) under Subsection (2)(c); or
(B) from federal taxable income on a federal individual income tax return.
(2) There shall be subtracted from federal taxable income of a resident or nonresident individual:
(a) the interest or a dividend on obligations or securities of the United States and its possessions or of any authority, commission, or instrumentality of the United States, to the extent that interest or dividend is included in gross income for federal income tax purposes for the taxable year but exempt from state income taxes under the laws of the United States, but the amount subtracted under this Subsection (2)(a) shall be reduced by any interest on indebtedness incurred or continued to purchase or carry the obligations or securities described in this Subsection (2)(a), and by any expenses incurred in the production of interest or dividend income described in this Subsection (2)(a) to the extent that such expenses, including amortizable bond premiums, are deductible in determining federal taxable income;
(b) 1/2 of the net amount of any income tax paid or payable to the United States after all allowable credits, as reported on the United States individual income tax return of the taxpayer for the same taxable year;
(c) the amount of adoption expenses for one of the following taxable years as elected by the resident or nonresident individual:
(i) regardless of whether a court issues an order granting the adoption, the taxable year in which the adoption expenses are:
(A) paid; or
(B) incurred;
(ii) the taxable year in which a court issues an order granting the adoption; or
(iii) any year in which the resident or nonresident individual may claim the federal adoption expenses credit under Section 23, Internal Revenue Code;
(d) amounts received by taxpayers under age 65 as retirement income which, for purposes of this section, means pensions and annuities, paid from an annuity contract purchased by an employer under a plan which meets the requirements of Section 404(a)(2), Internal Revenue Code, or purchased by an employee under a plan which meets the requirements of Section 408, Internal Revenue Code, or paid by the United States, a state, or political subdivision thereof, or the District of Columbia, to the employee involved or the surviving spouse;
(e) for each taxpayer age 65 or over before the close of the taxable year, a $7,500 personal retirement exemption;
(f) 75% of the amount of the personal exemption, as defined and calculated in the Internal Revenue Code, for each dependent child with a disability and adult with a disability who is claimed as a dependent on a taxpayer's return;
(g) subject to the limitations of Subsection (3)(e), amounts a taxpayer pays during the taxable year for health care insurance, as defined in Title 31A, Chapter 1, General Provisions:
(i) for:
(A) the taxpayer;
(B) the taxpayer's spouse; and
(C) the taxpayer's dependents; and
(ii) to the extent the taxpayer does not deduct the amounts under Section 125, 162, or 213, Internal Revenue Code, in determining federal taxable income for the taxable year;
(h) (i) except as provided in this Subsection (2)(h), the amount of a contribution made during the taxable year on behalf of the taxpayer to a medical care savings account and interest earned on a contribution to a medical care savings account established pursuant to Title 31A, Chapter 32a, Medical Care Savings Account Act, to the extent the contribution is accepted by the account administrator as provided in the Medical Care Savings Account Act, and if the taxpayer did not deduct or include amounts on the taxpayer's federal individual income tax return pursuant to Section 220, Internal Revenue Code; and
(ii) a contribution deductible under this Subsection (2)(h) may not exceed either of the following:
(A) the maximum contribution allowed under the Medical Care Savings Account Act for the tax year multiplied by two for taxpayers who file a joint return, if neither spouse is covered by health care insurance as defined in Section 31A-1-301 or self-funded plan that covers the other spouse, and each spouse has a medical care savings account; or
(B) the maximum contribution allowed under the Medical Care Savings Account Act for the tax year for taxpayers:
(I) who do not file a joint return; or
(II) who file a joint return, but do not qualify under Subsection (2)(h)(ii)(A);
(i) subject to Subsection (1)(f), the amount of a qualified investment as defined in Section 53B-8a-102 that:
(i) a resident or nonresident individual who is an account owner as defined in Section 53B-8a-102 makes during the taxable year;
(ii) the resident or nonresident individual described in Subsection (2)(i)(i) does not deduct on a federal individual income tax return; and
(iii) does not exceed the maximum amount of the qualified investment that may be subtracted from federal taxable income for a taxable year in accordance with Subsections 53B-8a-106(1)(e) and (f);
(j) for taxable years beginning on or after January 1, 2000, any amounts paid for premiums for long-term care insurance as defined in Section 31A-1-301 to the extent the amounts paid for long-term care insurance were not deducted under Section 213, Internal Revenue Code, in determining federal taxable income;
(k) for taxable years beginning on or after January 1, 2000, if the conditions of Subsection (4)(a) are met, the amount of income derived by a Ute tribal member:
(i) during a time period that the Ute tribal member resides on homesteaded land diminished from the Uintah and Ouray Reservation; and
(ii) from a source within the Uintah and Ouray Reservation;
(l) (i) for taxable years beginning on or after January 1, 2003, the total amount of a resident or nonresident individual's short-term capital gain or long-term capital gain on a capital gain transaction:
(A) that occurs on or after January 1, 2003;
(B) if 70% or more of the gross proceeds of the capital gain transaction are expended:
(I) to purchase qualifying stock in a Utah small business corporation; and
(II) within a 12-month period after the day on which the capital gain transaction occurs; and
(C) if, prior to the purchase of the qualifying stock described in Subsection (2)(l)(i)(B)(I), the resident or nonresident individual did not have an ownership interest in the Utah small business corporation that issued the qualifying stock; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(A) defining the term "gross proceeds"; and
(B) for purposes of Subsection (2)(l)(i)(C), prescribing the circumstances under which a resident or nonresident individual has an ownership interest in a Utah small business corporation;
(m) for the taxable year beginning on or after January 1, 2005, but beginning on or before December 31, 2005, the first $2,200 of income a qualifying military servicemember receives:
(i) for service:
(A) as a qualifying military servicemember; or
(B) under an order into active service in accordance with Section 39-1-5; and
(ii) to the extent that income is included in adjusted gross income on that resident or nonresident individual's federal individual income tax return for that taxable year;
(n) an amount received by a resident or nonresident individual or distribution received by a resident or nonresident beneficiary of a resident trust:
(i) if that amount or distribution constitutes a refund of taxes imposed by:
(A) a state; or
(B) the District of Columbia; and
(ii) to the extent that amount or distribution is included in adjusted gross income for that taxable year on the federal individual income tax return of the resident or nonresident individual or resident or nonresident beneficiary of a resident trust;
(o) the amount of a railroad retirement benefit:
(i) paid:
(A) in accordance with The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231 et seq.;
(B) to a resident or nonresident individual; and
(C) for the taxable year; and
(ii) to the extent that railroad retirement benefit is included in adjusted gross income on that resident or nonresident individual's federal individual income tax return for that taxable year; and
(p) an amount:
(i) received by an enrolled member of an American Indian tribe; and
(ii) to the extent that the state is not authorized or permitted to impose a tax under this part on that amount in accordance with:
(A) federal law;
(B) a treaty; or
(C) a final decision issued by a court of competent jurisdiction.
(3) (a) For purposes of Subsection (2)(d), the amount of retirement income subtracted for taxpayers under 65 shall be the lesser of the amount included in federal taxable income, or $4,800, except that:
(i) for married taxpayers filing joint returns, for each $1 of adjusted gross income earned over $32,000, the amount of the retirement income exemption that may be subtracted shall be reduced by 50 cents;
(ii) for married taxpayers filing separate returns, for each $1 of adjusted gross income earned over $16,000, the amount of the retirement income exemption that may be subtracted shall be reduced by 50 cents; and
(iii) for individual taxpayers, for each $1 of adjusted gross income earned over $25,000, the amount of the retirement income exemption that may be subtracted shall be reduced by 50 cents.
(b) For purposes of Subsection (2)(e), the amount of the personal retirement exemption shall be further reduced according to the following schedule:
(i) for married taxpayers filing joint returns, for each $1 of adjusted gross income earned over $32,000, the amount of the personal retirement exemption shall be reduced by 50 cents;
(ii) for married taxpayers filing separate returns, for each $1 of adjusted gross income earned over $16,000, the amount of the personal retirement exemption shall be reduced by 50 cents; and
(iii) for individual taxpayers, for each $1 of adjusted gross income earned over $25,000, the amount of the personal retirement exemption shall be reduced by 50 cents.
(c) For purposes of Subsections (3)(a) and (b), adjusted gross income shall be calculated by adding to adjusted gross income any interest income not otherwise included in adjusted gross income.
(d) For purposes of determining ownership of items of retirement income common law doctrine will be applied in all cases even though some items may have originated from service or investments in a community property state. Amounts received by the spouse of a living retiree because of the retiree's having been employed in a community property state are not deductible as retirement income of such spouse.
(e) For purposes of Subsection (2)(g), a subtraction for an amount paid for health care insurance as defined in Title 31A, Chapter 1, General Provisions, is not allowed:
(i) for an amount that is reimbursed or funded in whole or in part by the federal government, the state, or an agency or instrumentality of the federal government or the state; and
(ii) for a taxpayer who is eligible to participate in a health plan maintained and funded in whole or in part by the taxpayer's employer or the taxpayer's spouse's employer.
(4) (a) A subtraction for an amount described in Subsection (2)(k) is allowed only if:
(i) the taxpayer is a Ute tribal member; and
(ii) the governor and the Ute tribe execute and maintain an agreement meeting the requirements of this Subsection (4).
(b) The agreement described in Subsection (4)(a):
(i) may not:
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
(B) provide a subtraction under this section greater than or different from the subtraction described in Subsection (2)(k); or
(C) affect the power of the state to establish rates of taxation; and
(ii) shall:
(A) provide for the implementation of the subtraction described in Subsection (2)(k);
(B) be in writing;
(C) be signed by:
(I) the governor; and
(II) the chair of the Business Committee of the Ute tribe;
(D) be conditioned on obtaining any approval required by federal law; and
(E) state the effective date of the agreement.
(c) (i) The governor shall report to the commission by no later than February 1 of each year regarding whether or not an agreement meeting the requirements of this Subsection (4) is in effect.
(ii) If an agreement meeting the requirements of this Subsection (4) is terminated, the subtraction permitted under Subsection (2)(k) is not allowed for taxable years beginning on or after the January 1 following the termination of the agreement.
(d) For purposes of Subsection (2)(k) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) for determining whether income is derived from a source within the Uintah and Ouray Reservation; and
(ii) that are substantially similar to how adjusted gross income derived from Utah sources is determined under Section 59-10-117.
(5) (a) For purposes of this Subsection (5), "Form 8814" means:
(i) the federal individual income tax Form 8814, Parents' Election To Report Child's Interest and Dividends; or
(ii) (A) for taxable years beginning on or after January 1, 2002, a form designated by the commission in accordance with Subsection (5)(a)(ii)(B) as being substantially similar to 2000 Form 8814 if for purposes of federal individual income taxes the information contained on 2000 Form 8814 is reported on a form other than Form 8814; and
(B) for purposes of Subsection (5)(a)(ii)(A) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules designating a form as being substantially similar to 2000 Form 8814 if for purposes of federal individual income taxes the information contained on 2000 Form 8814 is reported on a form other than Form 8814.
(b) The amount of a child's income added to adjusted gross income under Subsection (1)(c) is equal to the difference between:
(i) the lesser of:
(A) the base amount specified on Form 8814; and
(B) the sum of the following reported on Form 8814:
(I) the child's taxable interest;
(II) the child's ordinary dividends; and
(III) the child's capital gain distributions; and
(ii) the amount not taxed that is specified on Form 8814.
(6) Notwithstanding Subsection (1)(g), interest from bonds, notes, and other evidences of indebtedness issued by an entity described in Subsections (1)(g)(i) through (iv) may not be added to federal taxable income of a resident or nonresident individual if, as annually determined by the commission:
(a) for an entity described in Subsection (1)(g)(i) or (ii), the entity and all of the political subdivisions, agencies, or instrumentalities of the entity do not impose a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of this state; or
(b) for an entity described in Subsection (1)(g)(iii) or (iv), the following do not impose a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of this state:
(i) the entity; or
(ii) (A) the state in which the entity is located; or
(B) the District of Columbia, if the entity is located within the District of Columbia.
Section 1007. Section 59-10-115 is amended to read:
59-10-115
. Adjustments to federal taxable income.(1) The commission shall allow an adjustment to federal taxable income of a taxpayer if the taxpayer would otherwise:
(a) receive a double tax benefit under this part; or
(b) suffer a double tax detriment under this part.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to allow for the adjustment to federal taxable income required by Subsection (1).
Section 1008. Section 59-10-116 is amended to read:
59-10-116
. Definitions -- Tax on nonresident individual -- Calculation -- Exemption.(1) For purposes of this section:
(a) "Military service" is as defined in Pub. L. No. 108-189, Sec. 101.
(b) "Servicemember" is as defined in Pub. L. No. 108-189, Sec. 101.
(c) "State income tax percentage" means a percentage equal to a nonresident individual's adjusted gross income for the taxable year received from Utah sources, as determined under Section 59-10-117, divided by the difference between:
(i) the nonresident individual's total adjusted gross income for that taxable year; and
(ii) if the nonresident individual described in Subsection (1)(c)(i) is a servicemember, the compensation the servicemember receives for military service if the servicemember is serving in compliance with military orders.
(d) "State taxable income" means a nonresident individual's federal taxable income after making the:
(i) additions and subtractions required by Section 59-10-114; and
(ii) adjustments required by Section 59-10-115.
(e) "Unapportioned state tax" means the product of the:
(i) difference between:
(A) a nonresident individual's state taxable income; and
(B) if the nonresident individual described in Subsection (1)(e)(i)(A) is a servicemember, compensation the servicemember receives for military service if the servicemember is serving in compliance with military orders; and
(ii) tax rate imposed under Section 59-10-104.
(2) Except as provided in Subsection (3) or Part 12, Single Rate Individual Income Tax Act, a tax is imposed on a nonresident individual in an amount equal to the product of the nonresident individual's:
(a) unapportioned state tax; and
(b) state income tax percentage.
(3) This section does not apply to a nonresident individual exempt from taxation under Section 59-10-104.1.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (1), the commission may by rule define what constitutes compensation.
Section 1009. Section 59-10-117 is amended to read:
59-10-117
. Adjusted gross income derived from Utah sources.(1) For purposes of Section 59-10-116, adjusted gross income derived from Utah sources includes those items includable in adjusted gross income attributable to or resulting from:
(a) the ownership in this state of any interest in real or tangible personal property, including real property or property rights from which "gross income from mining," as defined by Section 613(c), Internal Revenue Code, is derived; or
(b) the carrying on of a business, trade, profession, or occupation in this state.
(2) For the purposes of Subsection (1):
(a) income from intangible personal property, including annuities, dividends, interest, and gains from the disposition of intangible personal property shall constitute income derived from Utah sources only to the extent that such income is from property employed in a trade, business, profession, or occupation carried on in this state;
(b) deductions with respect to capital losses, net long-term capital gains, and net operating losses shall be based solely on income, gain, loss, and deduction connected with Utah sources, under rules prescribed by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, but otherwise shall be determined in the same manner as the corresponding federal deductions;
(c) salaries, wages, commissions, and compensation for personal services rendered outside this state shall not be considered to be derived from Utah sources;
(d) a nonresident shareholder's distributive share of ordinary income, gain, loss, and deduction derived from or connected with Utah sources shall be determined under Section 59-10-118;
(e) a nonresident, other than a dealer holding property primarily for sale to customers in the ordinary course of the dealer's trade or business, may not be considered to carry on a trade, business, profession, or occupation in this state solely by reason of the purchase or sale of property for the nonresident's own account;
(f) if a trade, business, profession, or occupation is carried on partly within and partly without this state, items of income, gain, loss, and deductions derived from or connected with Utah sources shall be determined in accordance with the provisions of Section 59-10-118;
(g) a nonresident partner's distributive share of partnership income, gain, loss, and deduction derived from or connected with Utah sources shall be determined under Section 59-10-303;
(h) the share of a nonresident estate or trust and nonresident beneficiaries of any estate or trust in income, gain, loss, and deduction derived from or connected with Utah sources shall be determined under Section 59-10-207; and
(i) any dividend, interest, or distributive share of income, gain, or loss from a real estate investment trust, as defined in Section 59-7-116.5, distributed or allocated to a nonresident investor in the trust, including any shareholder, beneficiary, or owner of a beneficial interest in the trust, shall be income from intangible personal property under Subsection (2)(a), and shall constitute income derived from Utah sources only to the extent the nonresident investor is employing its beneficial interest in the trust in a trade, business, profession, or occupation carried on by the investor in this state.
Section 1010. Section 59-10-202 is amended to read:
59-10-202
. Additions to and subtractions from federal taxable income of a resident or nonresident estate or trust.(1) There shall be added to federal taxable income of a resident or nonresident estate or trust:
(a) the amount of any income tax imposed by this or any predecessor Utah individual income tax law and the amount of any income tax imposed by the laws of another state, the District of Columbia, or a possession of the United States, to the extent deducted from federal adjusted total income as defined in Section 62, Internal Revenue Code, in determining federal taxable income;
(b) a lump sum distribution allowable as a deduction under Section 402(d)(3) of the Internal Revenue Code, to the extent deductible under Section 62(a)(8) of the Internal Revenue Code in determining adjusted gross income;
(c) except as provided in Subsection (3), for taxable years beginning on or after January 1, 2003, for bonds, notes, and other evidences of indebtedness acquired on or after January 1, 2003, the interest from bonds, notes, and other evidences of indebtedness issued by one or more of the following entities:
(i) a state other than this state;
(ii) the District of Columbia;
(iii) a political subdivision of a state other than this state; or
(iv) an agency or instrumentality of an entity described in Subsections (1)(c)(i) through (iii);
(d) any portion of federal taxable income for a taxable year if that federal taxable income is derived from stock:
(i) in an S corporation; and
(ii) that is held by an electing small business trust;
(e) (i) the amount withdrawn under Title 53B, Chapter 8a, Higher Education Savings Incentive Program, from the account of a resident or nonresident estate or trust that is an account owner as defined in Section 53B-8a-102, for the taxable year for which the amount is withdrawn, if that amount withdrawn from the account of the resident or nonresident estate or trust that is the account owner:
(A) is not expended for higher education costs as defined in Section 53B-8a-102; and
(B) is subtracted by the resident or nonresident estate or trust:
(I) that is the account owner; and
(II) in accordance with Subsection (2)(j)(i); and
(ii) the amount withdrawn under Title 53B, Chapter 8a, Higher Education Savings Incentive Program, from the account of a resident or nonresident estate or trust that is an account owner as defined in Section 53B-8a-102, for the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007, if that amount withdrawn from the account of the resident or nonresident estate or trust that is the account owner:
(A) is not expended for higher education costs as defined in Section 53B-8a-102; and
(B) is subtracted by the resident or nonresident estate or trust:
(I) that is the account owner; and
(II) in accordance with Subsection (2)(j)(ii); and
(f) any fiduciary adjustments required by Section 59-10-210.
(2) There shall be subtracted from federal taxable income of a resident or nonresident estate or trust:
(a) the interest or a dividend on obligations or securities of the United States and its possessions or of any authority, commission, or instrumentality of the United States, to the extent that interest or dividend is included in gross income for federal income tax purposes for the taxable year but exempt from state income taxes under the laws of the United States, but the amount subtracted under this Subsection (2) shall be reduced by any interest on indebtedness incurred or continued to purchase or carry the obligations or securities described in this Subsection (2), and by any expenses incurred in the production of interest or dividend income described in this Subsection (2) to the extent that such expenses, including amortizable bond premiums, are deductible in determining federal taxable income;
(b) 1/2 of the net amount of any income tax paid or payable to the United States after all allowable credits, as per the United States fiduciary income tax return of the taxpayer for the same taxable year;
(c) income of an irrevocable resident trust if:
(i) the income would not be treated as state taxable income derived from Utah sources under Section 59-10-204 if received by a nonresident trust;
(ii) the trust first became a resident trust on or after January 1, 2004;
(iii) no assets of the trust were held, at any time after January 1, 2003, in another resident irrevocable trust created by the same settlor or the spouse of the same settlor;
(iv) the trustee of the trust is a trust company as defined in Subsection 7-5-1(1)(d);
(v) the amount subtracted under this Subsection (2) is reduced to the extent the settlor or any other person is treated as an owner of any portion of the trust under Subtitle A, Subchapter J, Subpart E of the Internal Revenue Code; and
(vi) the amount subtracted under this Subsection (2) is reduced by any interest on indebtedness incurred or continued to purchase or carry the assets generating the income described in this Subsection (2), and by any expenses incurred in the production of income described in this Subsection (2), to the extent that those expenses, including amortizable bond premiums, are deductible in determining federal taxable income;
(d) if the conditions of Subsection (4)(a) are met, the amount of income of a resident or nonresident estate or trust derived from a deceased Ute tribal member:
(i) during a time period that the Ute tribal member resided on homesteaded land diminished from the Uintah and Ouray Reservation; and
(ii) from a source within the Uintah and Ouray Reservation;
(e) (i) for taxable years beginning on or after January 1, 2003, the total amount of a resident or nonresident estate's or trust's short-term capital gain or long-term capital gain on a capital gain transaction:
(A) that occurs on or after January 1, 2003;
(B) if 70% or more of the gross proceeds of the capital gain transaction are expended:
(I) to purchase qualifying stock in a Utah small business corporation; and
(II) within a 12-month period after the day on which the capital gain transaction occurs; and
(C) if, prior to the purchase of the qualifying stock described in Subsection (2)(e)(i)(B)(I), the resident or nonresident estate or trust did not have an ownership interest in the Utah small business corporation that issued the qualifying stock; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(A) defining the term "gross proceeds"; and
(B) for purposes of Subsection (2)(e)(i)(C), prescribing the circumstances under which a resident or nonresident estate or trust has an ownership interest in a Utah small business corporation;
(f) for the taxable year beginning on or after January 1, 2005, but beginning on or before December 31, 2005, the first $2,200 of income of a resident or nonresident estate or trust that is derived from a deceased qualifying military servicemember:
(i) for service:
(A) as a qualifying military servicemember; or
(B) under an order into active service in accordance with Section 39-1-5; and
(ii) to the extent that income is included in total income on that resident or nonresident estate's or trust's federal income tax return for estates and trusts for that taxable year;
(g) any amount:
(i) received by a resident or nonresident estate or trust;
(ii) that constitutes a refund of taxes imposed by:
(A) a state; or
(B) the District of Columbia; and
(iii) to the extent that amount is included in total income on that resident or nonresident estate's or trust's federal tax return for estates and trusts for that taxable year;
(h) the amount of a railroad retirement benefit:
(i) paid:
(A) in accordance with The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231 et seq.;
(B) to a resident or nonresident estate or trust derived from a deceased resident or nonresident individual; and
(C) for the taxable year; and
(ii) to the extent that railroad retirement benefit is included in total income on that resident or nonresident estate's or trust's federal tax return for estates and trusts;
(i) an amount:
(i) received by a resident or nonresident estate or trust if that amount is derived from a deceased enrolled member of an American Indian tribe; and
(ii) to the extent that the state is not authorized or permitted to impose a tax under this part on that amount in accordance with:
(A) federal law;
(B) a treaty; or
(C) a final decision issued by a court of competent jurisdiction;
(j) (i) subject to Subsection (1)(e)(i), for taxable years beginning on or after January 1, 2007, the amount of a qualified investment as defined in Section 53B-8a-102 that:
(A) a resident or nonresident estate or trust that is an account owner as defined in Section 53B-8a-102 makes during the taxable year;
(B) the resident or nonresident estate or trust described in Subsection (2)(j)(i)(A) does not deduct on a federal tax return for estates and trusts; and
(C) does not exceed the maximum amount of the qualified investment that may be subtracted from federal taxable income for a taxable year in accordance with Subsections 53B-8a-106(1)(e) and (f); and
(ii) subject to Subsection (1)(e)(ii), for the taxable year beginning on or after January 1, 2007, but beginning on or before December 31, 2007 only, and in addition to any subtraction a resident or nonresident estate or trust that is an account owner as defined in Section 53B-8a-102 makes in accordance with Subsection (2)(j)(i), the amount of a qualified investment as defined in Section 53B-8a-102 that:
(A) a resident or nonresident estate or trust that is an account owner as defined in Section 53B-8a-102 could have subtracted under Subsection (2)(j)(i) for the taxable year beginning on or after January 1, 2006, but beginning on or before December 31, 2006, had the subtraction under Subsection (2)(j)(i) been in effect for the taxable year beginning on or after January 1, 2006, but beginning on or before December 31, 2006;
(B) the resident or nonresident estate or trust described in Subsection (2)(j)(ii)(A) makes during the taxable year beginning on or after January 1, 2006, but beginning on or before December 31, 2006;
(C) the resident or nonresident estate or trust described in Subsection (2)(j)(ii)(A) does not deduct on a federal tax return for estates and trusts; and
(D) does not exceed the maximum amount of the qualified investment that may be subtracted from federal taxable income:
(I) for the taxable year beginning on or after January 1, 2006, but beginning on or before December 31, 2006; and
(II) in accordance with Subsections 53B-8a-106(1)(e) and (f); and
(k) any fiduciary adjustments required by Section 59-10-210.
(3) Notwithstanding Subsection (1)(c), interest from bonds, notes, and other evidences of indebtedness issued by an entity described in Subsections (1)(c)(i) through (iv) may not be added to federal taxable income of a resident or nonresident estate or trust if, as annually determined by the commission:
(a) for an entity described in Subsection (1)(c)(i) or (ii), the entity and all of the political subdivisions, agencies, or instrumentalities of the entity do not impose a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of this state; or
(b) for an entity described in Subsection (1)(c)(iii) or (iv), the following do not impose a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of this state:
(i) the entity; or
(ii) (A) the state in which the entity is located; or
(B) the District of Columbia, if the entity is located within the District of Columbia.
(4) (a) A subtraction for an amount described in Subsection (2)(d) is allowed only if:
(i) the income is derived from a deceased Ute tribal member; and
(ii) the governor and the Ute tribe execute and maintain an agreement meeting the requirements of this Subsection (4).
(b) The agreement described in Subsection (4)(a):
(i) may not:
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
(B) provide a subtraction under this section greater than or different from the subtraction described in Subsection (2)(d); or
(C) affect the power of the state to establish rates of taxation; and
(ii) shall:
(A) provide for the implementation of the subtraction described in Subsection (2)(d);
(B) be in writing;
(C) be signed by:
(I) the governor; and
(II) the chair of the Business Committee of the Ute tribe;
(D) be conditioned on obtaining any approval required by federal law; and
(E) state the effective date of the agreement.
(c) (i) The governor shall report to the commission by no later than February 1 of each year regarding whether or not an agreement meeting the requirements of this Subsection (4) is in effect.
(ii) If an agreement meeting the requirements of this Subsection (4) is terminated, the subtraction permitted under Subsection (2)(d) is not allowed for taxable years beginning on or after the January 1 following the termination of the agreement.
(d) For purposes of Subsection (2)(d) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) for determining whether income is derived from a source within the Uintah and Ouray Reservation; and
(ii) that are substantially similar to how adjusted gross income derived from Utah sources is determined under Section 59-10-117.
Section 1011. Section 59-10-209.1 is amended to read:
59-10-209.1
. Adjustments to state taxable income.(1) The commission shall allow an adjustment to state taxable income of a resident or nonresident estate or trust if the resident or nonresident estate or trust would otherwise:
(a) receive a double tax benefit under this chapter; or
(b) suffer a double tax detriment under this chapter.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to allow for the adjustment to state taxable income required by Subsection (1).
Section 1012. Section 59-10-210 is amended to read:
59-10-210
. Fiduciary adjustments.(1) A share of the fiduciary adjustments described in Subsection (2) shall be added to or subtracted from federal taxable income:
(a) of:
(i) a resident or nonresident estate or trust; or
(ii) a resident or nonresident beneficiary of a resident or nonresident estate or trust; and
(b) as provided in this section.
(2) For purposes of Subsection (1), the fiduciary adjustments are the following amounts:
(a) the additions to and subtractions from federal taxable income of a resident or nonresident estate or trust required by Section 59-10-202, except for Subsection 59-10-202(2)(b); and
(b) a tax credit claimed by a resident or nonresident estate or trust as allowed by:
(i) Section 59-6-102;
(ii) Part 10, Nonrefundable Tax Credit Act;
(iii) Part 11, Refundable Tax Credit Act;
(iv) Section 59-13-202;
(v) Section [63-38f-413] 63M-1-413; or
(vi) Section [63-38f-503] 63M-1-504.
(3) (a) The respective shares of an estate or trust and its beneficiaries, including for the purpose of this allocation a nonresident beneficiary, in the state fiduciary adjustments, shall be allocated in proportion to their respective shares of federal distributable net income of the estate or trust.
(b) If the estate or trust described in Subsection (3)(a) has no federal distributable net income for the taxable year, the share of each beneficiary in the fiduciary adjustments shall be allocated in proportion to that beneficiary's share of the estate or trust income for the taxable year that is, under state law or the governing instrument, required to be distributed currently plus any other amounts of that income distributed in that taxable year.
(c) After making the allocations required by Subsections (3)(a) and (b), any balance of the fiduciary adjustments shall be allocated to the estate or trust.
(4) (a) The commission shall allow a fiduciary to use a method for determining the allocation of the fiduciary adjustments described in Subsection (2) other than the method described in Subsection (3) if using the method described in Subsection (3) results in an inequity:
(i) in allocating the fiduciary adjustments described in Subsection (2); and
(ii) if the inequity is substantial:
(A) in amount; and
(B) in relation to the total amount of the fiduciary adjustments described in Subsection (2).
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules authorizing a fiduciary to use a method for determining the allocation of the fiduciary adjustments described in Subsection (2) other than the method described in Subsection (3) if using the method described in Subsection (3) results in an inequity:
(i) in allocating the fiduciary adjustments described in Subsection (2); and
(ii) if the inequity is substantial:
(A) in amount; and
(B) in relation to the total amount of the fiduciary adjustments described in Subsection (2).
Section 1013. Section 59-10-405.5 is amended to read:
59-10-405.5
. Definitions -- Withholding tax license requirements -- Penalty -- Application process and requirements -- Fee not required -- Bonds.(1) As used in this section:
(a) "applicant" means a person that:
(i) is required by this section to obtain a license; and
(ii) submits an application:
(A) to the commission; and
(B) for a license under this section;
(b) "application" means an application for a license under this section;
(c) "fiduciary of the applicant" means a person that:
(i) is required to collect, truthfully account for, and pay over an amount under this part for an applicant; and
(ii) (A) is a corporate officer of the applicant described in Subsection (1)(c)(i);
(B) is a director of the applicant described in Subsection (1)(c)(i);
(C) is an employee of the applicant described in Subsection (1)(c)(i);
(D) is a partner of the applicant described in Subsection (1)(c)(i);
(E) is a trustee of the applicant described in Subsection (1)(c)(i); or
(F) has a relationship to the applicant described in Subsection (1)(c)(i) that is similar to a relationship described in Subsections (1)(c)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) "fiduciary of the licensee" means a person that:
(i) is required to collect, truthfully account for, and pay over an amount under this part for a licensee; and
(ii) (A) is a corporate officer of the licensee described in Subsection (1)(d)(i);
(B) is a director of the licensee described in Subsection (1)(d)(i);
(C) is an employee of the licensee described in Subsection (1)(d)(i);
(D) is a partner of the licensee described in Subsection (1)(d)(i);
(E) is a trustee of the licensee described in Subsection (1)(d)(i); or
(F) has a relationship to the licensee described in Subsection (1)(d)(i) that is similar to a relationship described in Subsections (1)(d)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(e) "license" means a license under this section; and
(f) "licensee" means a person that is licensed under this section by the commission.
(2) The following persons are guilty of a criminal violation as provided in Section 59-1-401:
(a) a person that:
(i) is required to withhold, report, or remit any amounts under this part; and
(ii) engages in business within the state before obtaining a license under this section; or
(b) a person that:
(i) pays wages under this part; and
(ii) engages in business within the state before obtaining a license under this section.
(3) The license described in Subsection (2):
(a) shall be granted and issued:
(i) by the commission in accordance with this section;
(ii) without a license fee; and
(iii) if:
(A) an applicant:
(I) states the applicant's name and address in the application; and
(II) provides other information in the application that the commission may require; and
(B) the person meets the requirements of this section to be granted a license as determined by the commission;
(b) may not be assigned to another person; and
(c) is valid:
(i) only for the person named on the license; and
(ii) until:
(A) the person described in Subsection (3)(c)(i):
(I) ceases to do business; or
(II) changes that person's business address; or
(B) the commission revokes the license.
(4) The commission shall review an application and determine whether:
(a) the applicant meets the requirements of this section to be issued a license; and
(b) a bond is required to be posted with the commission in accordance with Subsections (5) and (6) before the applicant may be issued a license.
(5) (a) An applicant shall post a bond with the commission before the commission may issue the applicant a license if:
(i) a license under this section was revoked for a delinquency under this part for:
(A) the applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part; or
(ii) there is a delinquency in withholding, reporting, or remitting any amount under this part for:
(A) an applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part.
(b) If the commission determines it is necessary to ensure compliance with this part, the commission may require a licensee to:
(i) for a licensee that has not posted a bond under this section with the commission, post a bond with the commission in accordance with Subsection (6); or
(ii) for a licensee that has posted a bond under this section with the commission, increase the amount of the bond posted with the commission.
(6) (a) A bond required by Subsection (5) shall be:
(i) executed by:
(A) for an applicant, the applicant as principal, with a corporate surety; or
(B) for a licensee, the licensee as principal, with a corporate surety; and
(ii) payable to the commission conditioned upon the faithful performance of all of the requirements of this part including:
(A) the withholding or remitting of any amount under this part;
(B) the payment of any:
(I) penalty as provided in Section 59-1-401; or
(II) interest as provided in Section 59-1-402; or
(C) any other obligation of the:
(I) applicant under this part; or
(II) licensee under this part.
(b) Except as provided in Subsection (6)(d), the commission shall calculate the amount of a bond required by Subsection (5) on the basis of:
(i) commission estimates of:
(A) for an applicant, any amounts the applicant withholds, reports, or remits under this part; or
(B) for a licensee, any amounts the licensee withholds, reports, or remits under this part; and
(ii) any amount of a delinquency described in Subsection (6)(c).
(c) Except as provided in Subsection (6)(d), for purposes of Subsection (6)(b)(ii):
(i) for an applicant, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the applicant;
(II) a fiduciary of the applicant; or
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part; or
(B) the amount that any of the following owe under this part:
(I) the applicant;
(II) a fiduciary of the applicant; and
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part; or
(ii) for a licensee, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the licensee;
(II) a fiduciary of the licensee; or
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part; or
(B) the amount that any of the following owe under this part:
(I) the licensee;
(II) a fiduciary of the licensee; and
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part.
(d) Notwithstanding Subsection (6)(b) or (c), a bond required by Subsection (5) may not:
(i) be less than $25,000; or
(ii) exceed $500,000.
(7) (a) The commission shall revoke a license under this section if:
(i) a licensee violates any provision of this part; and
(ii) before the commission revokes the license the commission provides the licensee:
(A) reasonable notice; and
(B) a hearing.
(b) If the commission revokes a licensee's license in accordance with Subsection (7)(a), the commission may not issue another license to that licensee until that licensee complies with the requirements of this part, including:
(i) paying any:
(A) amounts due under this part;
(B) penalty as provided in Section 59-1-401; or
(C) interest as provided in Section 59-1-402; and
(ii) posting a bond in accordance with Subsections (5) and (6).
Section 1014. Section 59-10-514 is amended to read:
59-10-514
. Return filing requirements -- Rulemaking authority.(1) Subject to Subsection (3):
(a) an individual income tax return filed for a tax imposed in accordance with Part 1, Determination and Reporting of Tax Liability and Information, shall be filed with the commission:
(i) except as provided in Subsection (1)(a)(ii), on or before the 15th day of the fourth month following the last day of the taxpayer's taxable year; or
(ii) on or before the day on which a federal individual income tax return is due under the Internal Revenue Code if the Internal Revenue Code provides a due date for filing that federal individual income tax return that is different from the due date described in Subsection (1)(a)(i);
(b) a fiduciary income tax return filed for a tax imposed in accordance with Part 2, Trusts and Estates, shall be filed with the commission:
(i) except as provided in Subsection (1)(b)(ii), on or before the 15th day of the fourth month following the last day of the taxpayer's taxable year; or
(ii) on or before the day on which a federal tax return for estates and trusts is due under the Internal Revenue Code if the Internal Revenue Code provides a due date for filing that federal tax return for estates and trusts that is different from the due date described in Subsection (1)(b)(i); or
(c) a return filed in accordance with Section 59-10-507, shall be filed with the commission:
(i) except as provided in Subsection (1)(c)(ii), in accordance with Section 59-10-507; or
(ii) on or before the day on which a federal return of partnership income is due under the Internal Revenue Code if the Internal Revenue Code provides a due date for filing that federal return of partnership income that is different from the due date described in Subsection (1)(c)(i).
(2) A person required to make and file a return under this chapter shall, without assessment, notice, or demand, pay any tax due:
(a) to the commission; and
(b) before the due date for filing the return determined without regard to any extension of time for filing the return.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules prescribing what constitutes filing a return with the commission.
Section 1015. Section 59-10-514.1 is amended to read:
59-10-514.1
. Definitions -- Requirement to file returns using scan technology or by electronic means -- Exceptions -- Waiver.(1) As used in this section:
(a) (i) "electronic" means using a technology other than scan technology; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining "technology";
(b) (i) except as provided in Subsection (1)(b)(ii), "income tax return preparer" means an individual that prepares for compensation a return required to be filed by this chapter;
(ii) notwithstanding Subsection (1)(b)(i), "income tax return preparer" does not include an individual who:
(A) performs only one or more of the following relating to a return required to be filed by this chapter:
(I) types the return;
(II) reproduces the return; or
(III) performs an action similar to Subsection (1)(b)(ii)(A)(I) or (II) as determined by the commission by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; or
(B) prepares a return required to be filed by this chapter:
(I) of the individual's employer or an officer or employee of the employer if the individual is regularly and continuously employed by that employer;
(II) of any person if that individual is a fiduciary for that person; or
(III) for a taxpayer in response to a tax order issued to that taxpayer;
(c) "prepare" means to prepare a substantial portion or more of a return required to be filed by this chapter;
(d) (i) except as provided in Subsection (1)(d)(ii), "qualifying return" means a return required to be filed by this chapter for any taxable year that begins on or after the January 1 described in Subsection (2)(c)(i); and
(ii) notwithstanding Subsection (1)(d)(i), "qualifying return" does not include:
(A) an amended return; or
(B) (I) a return filed for any taxable year that begins before the first day of the current taxable year; and
(II) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining "current taxable year"; and
(e) (i) "scan technology" means technology that:
(A) allows a return to be scanned; and
(B) is approved by the commission; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule specify what types of technology constitute scan technology.
(2) (a) Subject to Subsections (2)(b) and (c) and except as provided in Subsection (3), an income tax return preparer shall file all qualifying returns using scan technology or by electronic means if the income tax return preparer prepares in any calendar year beginning on or after January 1, 2005, a total of 101 or more returns required to be filed by this chapter.
(b) (i) For purposes of Subsection (2)(a), if two or more income tax return preparers are affiliated with the same establishment, the total number of returns required to be filed by this chapter that are prepared in a calendar year beginning on or after January 1, 2005, by all of the income tax return preparers that are affiliated with that establishment shall be included in determining whether an income tax return preparer prepares in a calendar year beginning on or after January 1, 2005, a total of 101 or more returns required to be filed by this chapter.
(ii) For purposes of Subsection (2)(b)(i), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule determine the circumstances under which two or more income tax return preparers are affiliated with the same establishment.
(c) If an income tax return preparer is required by this Subsection (2) to file all qualifying returns using scan technology or by electronic means, the income tax return preparer shall file those qualifying returns using scan technology or by electronic means:
(i) beginning on January 1 of the first calendar year immediately following the day on which the income tax return preparer meets the requirements of this Subsection (2); and
(ii) for all calendar years after the calendar year described in Subsection (2)(c)(i).
(3) Notwithstanding Subsection (2), an income tax return preparer is not required to file a qualifying return using scan technology or by electronic means if:
(a) a schedule required to be attached to the qualifying return cannot be filed using scan technology or by electronic means;
(b) the taxpayer for which the qualifying return is prepared requests in writing that the income tax return preparer not file the qualifying return using scan technology or by electronic means; or
(c) subject to Subsection (4), the commission waives for one or more qualifying returns filed by the income tax return preparer the requirement imposed by this section to file the qualifying returns using scan technology or by electronic means.
(4) (a) For purposes of Subsection (3)(c), the commission may waive for one or more qualifying returns filed by an income tax return preparer the requirement imposed by this section to file the qualifying returns using scan technology or by electronic means if the income tax return preparer demonstrates to the commission that it would be an undue hardship to file the qualifying returns using scan technology or by electronic means.
(b) For purposes of Subsection (4)(a) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall by rule define the circumstances that constitute an undue hardship to file a qualifying return using scan technology or by electronic means.
Section 1016. Section 59-10-549 is amended to read:
59-10-549
. Contributions for education.(1) Except as provided in Section 59-10-551, a taxpayer that files a return pursuant to Section 59-10-502 may designate on the return a contribution as provided in this section to:
(a) (i) the foundation of any school district if that foundation is exempt from federal income taxation under Section 501(c)(3), Internal Revenue Code; or
(ii) a school district described in Title 53A, Chapter 2, School Districts, if the school district has not established a foundation;
(b) a college campus of the Utah College of Applied Technology listed in Section 53B-2a-105; or
(c) for taxable years beginning on or after January 1, 2004, but beginning on or before December 31, 2006, the Uniform School Fund.
(2) (a) A taxpayer may designate as a contribution under this section any whole dollar amount of $1 or more.
(b) (i) If the taxpayer is owed an individual income tax refund for the taxable year, the amount of a contribution under this section shall be deducted from the taxpayer's individual income tax refund.
(ii) If the taxpayer is not owed an individual income tax refund for the taxable year, the taxpayer may remit a contribution under this section with the taxpayer's individual income tax return.
(c) If a taxpayer files a joint return, the contribution under this section shall be a joint contribution.
(d) A contribution under this section is irrevocable during the taxable year for which the taxpayer makes the contribution.
(3) If a taxpayer designates an amount as a contribution under:
(a) Subsection (1)(a)(i), but does not designate a particular school district foundation to receive the contribution, the contribution shall be made to the Utah State Office of Education to be distributed to one or more associations of foundations:
(i) if those foundations that are members of the association are established in accordance with Section 53A-4-205; and
(ii) as determined by the Utah State Office of Education; or
(b) Subsection (1)(a)(ii), but does not designate a particular school district to receive the contribution, the contribution shall be made to the Utah State Office of Education.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to implement this section.
(5) The commission shall:
(a) determine annually the total amount of contributions designated in accordance with this section; and
(b) report this amount to the state treasurer.
(6) The state treasurer shall credit any contributions reported to the state treasurer in accordance with Subsection (5):
(a) subject to Subsection (3), if a taxpayer designates a contribution to an entity listed in Subsection (1)(a) or (b) in accordance with this section, to the entity that is designated by the taxpayer; or
(b) if a taxpayer designates a contribution to the Uniform School Fund under Subsection (1)(c) in accordance with this section, to the Uniform School Fund.
Section 1017. Section 59-10-1007 is amended to read:
59-10-1007
. Recycling market development zones tax credit.(1) For taxable years beginning on or after January 1, 1996, a claimant, estate, or trust in a recycling market development zone as defined in Section [63-38f-1102] 63M-1-1102 may claim a nonrefundable tax credit as provided in this section.
(a) (i) There shall be allowed a tax credit of 5% of the purchase price paid for machinery and equipment used directly in:
(A) commercial composting; or
(B) manufacturing facilities or plant units that:
(I) manufacture, process, compound, or produce recycled items of tangible personal property for sale; or
(II) reduce or reuse postconsumer waste material.
(ii) The Governor's Office of Economic Development shall certify that the machinery and equipment described in Subsection (1)(a)(i) are integral to the composting or recycling process:
(A) on a form provided by the commission; and
(B) before a claimant, estate, or trust is allowed a tax credit under this section.
(iii) The Governor's Office of Economic Development shall provide a claimant, estate, or trust seeking to claim a tax credit under this section with a copy of the form described in Subsection (1)(a)(ii).
(iv) The claimant, estate, or trust described in Subsection (1)(a)(iii) shall retain a copy of the form received under Subsection (1)(a)(iii).
(b) There shall be allowed a tax credit equal to 20% of net expenditures up to $10,000 to third parties for rent, wages, supplies, tools, test inventory, and utilities made by the claimant, estate, or trust for establishing and operating recycling or composting technology in Utah, with an annual maximum tax credit of $2,000.
(2) The total tax credit allowed under this section may not exceed 40% of the Utah income tax liability of the claimant, estate, or trust prior to any tax credits in the taxable year of purchase prior to claiming the tax credit authorized by this section.
(3) (a) Any tax credit not used for the taxable year in which the purchase price on composting or recycling machinery and equipment was paid may be carried forward against the claimant's, estate's, or trusts's tax liability under this chapter in the three succeeding taxable years until the total tax credit amount is used.
(b) Tax credits not claimed by a claimant, estate, or trust on the claimant's, estate's, or trust's tax return under this chapter within three years are forfeited.
(4) The commission shall make rules governing what information shall be filed with the commission to verify the entitlement to and amount of a tax credit.
(5) (a) Notwithstanding Subsection (1)(a), for taxable years beginning on or after January 1, 2001, a claimant, estate, or trust may not claim or carry forward a tax credit described in Subsection (1)(a) in a taxable year during which the claimant, estate, or trust claims or carries forward a tax credit under Section [63-38f-413] 63M-1-413.
(b) For a taxable year other than a taxable year during which the claimant, estate, or trust may not claim or carry forward a tax credit in accordance with Subsection (5)(a), a claimant, estate, or trust may claim or carry forward a tax credit described in Subsection (1)(a):
(i) if the claimant, estate, or trust may claim or carry forward the tax credit in accordance with Subsections (1) and (2); and
(ii) subject to Subsections (3) and (4).
(6) Notwithstanding Subsection (1)(b), for taxable years beginning on or after January 1, 2001, a claimant, estate, or trust may not claim a tax credit described in Subsection (1)(b) in a taxable year during which the claimant, estate, or trust claims or carries forward a tax credit under Section [63-38f-413] 63M-1-413.
(7) A claimant, estate, or trust may not claim or carry forward a tax credit available under this section for a taxable year during which the claimant, estate, or trust has claimed the targeted business income tax credit available under Section [63-38f-503] 63M-1-504.
Section 1018. Section 59-10-1012 (Superseded 01/01/08) is amended to read:
59-10-1012 (Superseded 01/01/08)
. Tax credits for research activities conducted in the state -- Carry forward -- Commission to report modification or repeal of federal credits.(1) (a) For taxable years beginning on or after January 1, 1999, but beginning before December 31, 2010, a claimant, estate, or trust meeting the requirements of this section shall qualify for the following nonrefundable tax credits for increasing research activities in this state:
(i) a research tax credit of 6% of the claimant's, estate's, or trust's qualified research expenses for the current taxable year that exceed the base amount provided for under Subsection (4); and
(ii) a tax credit for payments to qualified organizations for basic research as provided in Section 41(e), Internal Revenue Code of 6% for the current taxable year that exceed the base amount provided for under Subsection (4).
(b) If a claimant, estate, or trust qualifying for a tax credit under Subsection (1)(a) seeks to claim the tax credit, the claimant, estate, or trust shall:
(i) claim the tax credit or a portion of the tax credit for the taxable year immediately following the taxable year for which the claimant, estate, or trust qualifies for the tax credit;
(ii) carry the tax credit or a portion of the tax credit forward as provided in Subsection (4)(f); or
(iii) claim a portion of the tax credit and carry forward a portion of the tax credit as provided in Subsections (1)(b)(i) and (ii).
(c) The tax credits provided for in this section do not include the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code.
(2) For purposes of claiming a tax credit under this section, a unitary group as defined in Section 59-7-101 is considered to be one claimant.
(3) Except as specifically provided for in this section:
(a) the tax credits authorized under Subsection (1) shall be calculated as provided in Section 41, Internal Revenue Code; and
(b) the definitions provided in Section 41, Internal Revenue Code, apply in calculating the tax credits authorized under Subsection (1).
(4) For purposes of this section:
(a) the base amount shall be calculated as provided in Sections 41(c) and 41(h), Internal Revenue Code, except that:
(i) the base amount does not include the calculation of the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code;
(ii) a claimant's, estate's, or trust's gross receipts include only those gross receipts attributable to sources within this state as provided in Section 59-10-118; and
(iii) notwithstanding Section 41(c), Internal Revenue Code, for purposes of calculating the base amount, a claimant, estate, or trust:
(A) may elect to be treated as a start-up company as provided in Section 41(c)(3)(B) regardless of whether the claimant, estate, or trust meets the requirements of Section 41(c)(3)(B)(i)(I) or (II); and
(B) may not revoke an election to be treated as a start-up company under Subsection (4)(a)(iii)(A);
(b) "basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state;
(c) "qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state;
(d) "qualified research expenses" is as defined and calculated in Section 41(b), Internal Revenue Code, except that the term includes only those expenses incurred in conducting qualified research in this state;
(e) notwithstanding the provisions of Section 41(h), Internal Revenue Code, the tax credits provided for in this section shall not terminate if the credits terminate under Section 41, Internal Revenue Code; and
(f) notwithstanding the provisions of Sections 39 and 41(g), Internal Revenue Code, governing the carry forward and carry back of federal tax credits, if the amount of a tax credit claimed by a claimant, estate, or trust under this section exceeds the claimant's, estate's, or trust's tax liability under this chapter for a taxable year, the amount of the tax credit exceeding the liability:
(i) may be carried forward for a period that does not exceed the next 14 taxable years; and
(ii) may not be carried back to a taxable year preceding the current taxable year.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that amounts paid to the qualified organizations are for basic research conducted in this state.
(6) If a federal credit under Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
Section 1019. Section 59-10-1012 (Effective 01/01/08) is amended to read:
59-10-1012 (Effective 01/01/08)
. Tax credits for research activities conducted in the state -- Carry forward -- Commission to report modification or repeal of certain federal provisions -- Utah Tax Review Commission study.(1) (a) A claimant, estate, or trust meeting the requirements of this section may claim the following nonrefundable tax credits:
(i) a research tax credit of 7% of the claimant's, estate's, or trust's qualified research expenses for the current taxable year that exceed the base amount provided for under Subsection (3);
(ii) a tax credit for payments to qualified organizations for basic research as provided in Section 41(e), Internal Revenue Code of 7% for the current taxable year that exceed the base amount provided for under Subsection (3); and
(iii) a tax credit equal to 5% of the claimant's, estate's, or trust's qualified research expenses for the current taxable year.
(b) (i) Except as provided in Subsection (1)(b)(ii), a claimant, estate, or trust may:
(A) claim the tax credit or a portion of the tax credit for the taxable year immediately following the taxable year for which the claimant, estate, or trust qualifies for the tax credit;
(B) carry forward the tax credit or a portion of the tax credit as provided in Subsection (4); or
(C) claim a portion of the tax credit and carry forward a portion of the tax credit as provided in Subsections (1)(b)(i)(A) and (B).
(ii) A claimant, estate, or trust may not carry forward the tax credit allowed by Subsection (1)(a)(iii).
(c) The tax credits provided for in this section do not include the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code.
(2) Except as specifically provided for in this section:
(a) the tax credits authorized under Subsection (1) shall be calculated as provided in Section 41, Internal Revenue Code; and
(b) the definitions provided in Section 41, Internal Revenue Code, apply in calculating the tax credits authorized under Subsection (1).
(3) For purposes of this section:
(a) the base amount shall be calculated as provided in Sections 41(c) and 41(h), Internal Revenue Code, except that:
(i) the base amount does not include the calculation of the alternative incremental credit provided for in Section 41(c)(4), Internal Revenue Code;
(ii) a claimant's, estate's, or trust's gross receipts include only those gross receipts attributable to sources within this state as provided in Section 59-10-118; and
(iii) notwithstanding Section 41(c), Internal Revenue Code, for purposes of calculating the base amount, a claimant, estate, or trust:
(A) may elect to be treated as a start-up company as provided in Section 41(c)(3)(B) regardless of whether the claimant, estate, or trust meets the requirements of Section 41(c)(3)(B)(i)(I) or (II); and
(B) may not revoke an election to be treated as a start-up company under Subsection (3)(a)(iii)(A);
(b) "basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state;
(c) "qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state;
(d) "qualified research expenses" is as defined and calculated in Section 41(b), Internal Revenue Code, except that the term includes only:
(i) in-house research expenses incurred in this state; and
(ii) contract research expenses incurred in this state; and
(e) a tax credit provided for in this section is not terminated if a credit terminates under Section 41, Internal Revenue Code.
(4) If the amount of a tax credit claimed by a claimant, estate, or trust under Subsection (1)(a)(i) or (ii) exceeds the claimant's, estate's, or trust's tax liability under this chapter for a taxable year, the amount of the tax credit exceeding the tax liability:
(a) may be carried forward for a period that does not exceed the next 14 taxable years; and
(b) may not be carried back to a taxable year preceding the current taxable year.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that amounts paid to the qualified organizations are for basic research conducted in this state.
(6) If a provision of Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Utah Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
(7) (a) The Utah Tax Review Commission shall review the tax credits provided for in this section on or before October 1 of the year after the year in which the commission reports under Subsection (6) a modification or repeal of a provision of Section 41, Internal Revenue Code.
(b) Notwithstanding Subsection (7)(a), the Utah Tax Review Commission is not required to review the tax credits provided for in this section if the only modification to a provision of Section 41, Internal Revenue Code, is the extension of the termination date provided for in Section 41(h), Internal Revenue Code.
(c) The Utah Tax Review Commission shall address in a review under this section:
(i) the cost of the tax credits provided for in this section;
(ii) the purpose and effectiveness of the tax credits provided for in this section;
(iii) whether the tax credits provided for in this section benefit the state; and
(iv) whether the tax credits provided for in this section should be:
(A) continued;
(B) modified; or
(C) repealed.
(d) If the Utah Tax Review Commission reviews the tax credits provided for in this section, the Utah Tax Review Commission shall report its findings to the Revenue and Taxation Interim Committee on or before the November interim meeting of the year in which the Utah Tax Review Commission reviews the tax credits.
Section 1020. Section 59-10-1013 is amended to read:
59-10-1013
. Credits for machinery, equipment, or both primarily used for conducting qualified research or basic research -- Carry forward -- Commission to report modification or repeal of federal credits.(1) As used in this section:
(a) "Basic research" is as defined in Section 41(e)(7), Internal Revenue Code, except that the term includes only basic research conducted in this state.
(b) "Equipment" includes:
(i) computers;
(ii) computer equipment; and
(iii) computer software.
(c) "Purchase price":
(i) includes the cost of installing an item of machinery or equipment; and
(ii) does not include sales or use taxes imposed on an item of machinery or equipment.
(d) "Qualified organization" is as defined in Section 41(e)(6), Internal Revenue Code.
(e) "Qualified research" is as defined in Section 41(d), Internal Revenue Code, except that the term includes only qualified research conducted in this state.
(2) (a) Except as provided in Subsection (2)(c), for taxable years beginning on or after January 1, 1999, but beginning before December 31, 2010, a claimant, estate, or trust shall qualify for the following nonrefundable tax credits for the taxable year in which the machinery, equipment, or both, meets the requirements of either Subsection (2)(a)(i) or (2)(a)(ii):
(i) a tax credit of 6% of the purchase price of either machinery, equipment, or both:
(A) purchased by the claimant, estate, or trust during the taxable year;
(B) that is not exempt from sales or use taxes; and
(C) that is primarily used to conduct qualified research in this state; and
(ii) a tax credit of 6% of the purchase price paid by the claimant, estate, or trust for either machinery, equipment, or both:
(A) purchased by the claimant, estate, or trust during the taxable year;
(B) that is not exempt from sales or use taxes;
(C) that is donated to a qualified organization; and
(D) that is primarily used to conduct basic research in this state.
(b) If a claimant, estate, or trust qualifying for a tax credit under Subsection (2)(a) seeks to claim the tax credit, the claimant, estate, or trust shall:
(i) claim the tax credit or a portion of the tax credit for the taxable year immediately following the taxable year for which the claimant, estate, or trust qualifies for the tax credit;
(ii) carry the tax credit or a portion of the tax credit forward as provided in Subsection (5); or
(iii) claim a portion of the tax credit and carry forward a portion of the tax credit as provided in Subsections (2)(b)(i) and (ii).
(c) Notwithstanding Subsection (2)(a), if a claimant, estate, or trust qualifies for a tax credit under Subsection (2)(a) for a purchase of machinery, equipment, or both, the claimant, estate, or trust may not claim the tax credit or carry the tax credit forward if the machinery, equipment, or both, is primarily used to conduct qualified research in the state for a time period that is less than 12 consecutive months.
(3) For purposes of claiming a tax credit under this section, a unitary group as defined in Section 59-7-101 is considered to be one claimant.
(4) Notwithstanding the provisions of Section 41(h), Internal Revenue Code, the tax credits provided for in this section shall not terminate if the credits terminate under Section 41, Internal Revenue Code.
(5) Notwithstanding the provisions of Sections 39 and 41(g), Internal Revenue Code, governing the carry forward and carry back of federal tax credits, if the amount of a tax credit claimed by a claimant, estate, or trust under this section exceeds a claimant's, estate's, or trust's tax liability under this chapter for a taxable year, the amount of the tax credit exceeding the liability:
(a) may be carried forward for a period that does not exceed the next 14 taxable years; and
(b) may not be carried back to a taxable year preceding the current taxable year.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules for purposes of this section prescribing a certification process for qualified organizations to ensure that either machinery, equipment, or both provided to the qualified organization is to be primarily used to conduct basic research in this state.
(7) If a federal credit under Section 41, Internal Revenue Code, is modified or repealed, the commission shall report the modification or repeal to the Tax Review Commission within 60 days after the day on which the modification or repeal becomes effective.
Section 1021. Section 59-10-1015 is amended to read:
59-10-1015
. Definitions -- Tax credit for live organ donation expenses -- Rulemaking authority.(1) As used in this section:
(a) "human organ" means:
(i) human bone marrow; or
(ii) any part of a human:
(A) intestine;
(B) kidney;
(C) liver;
(D) lung; or
(E) pancreas;
(b) "live organ donation" means that an individual who is living donates one or more of that individual's human organs:
(i) to another human; and
(ii) to be transplanted:
(A) using a medical procedure; and
(B) to the body of the other human; and
(c) (i) "live organ donation expenses" means the total amount of expenses:
(A) incurred by a claimant; and
(B) that:
(I) are not reimbursed to that claimant by any person;
(II) are directly related to a live organ donation by:
(Aa) the claimant; or
(Bb) another individual that the claimant is allowed to claim as a dependent in accordance with Section 151, Internal Revenue Code; and
(III) are for:
(Aa) travel;
(Bb) lodging; or
(Cc) a lost wage; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define "lost wage."
(2) For taxable years beginning on or after January 1, 2005, a claimant may claim a nonrefundable tax credit:
(a) as provided in this section;
(b) against taxes otherwise due under this chapter;
(c) for live organ donation expenses incurred during the taxable year for which the live organ donation occurs; and
(d) in an amount equal to the lesser of:
(i) the actual amount of the live organ donation expenses; or
(ii) $10,000.
(3) If the amount of a tax credit under this section exceeds a claimant's tax liability under this chapter for a taxable year, the amount of the tax credit that exceeds the claimant's tax liability may be carried forward for a period that does not exceed the next five taxable years.
Section 1022. Section 59-10-1105 is amended to read:
59-10-1105
. Tax credit for hand tools used in farming operations -- Procedures for refund -- Transfers from General Fund to Education Fund -- Rulemaking authority.(1) For taxable years beginning on or after January 1, 2004, a claimant, estate, or trust may claim a refundable tax credit:
(a) as provided in this section;
(b) against taxes otherwise due under this chapter; and
(c) in an amount equal to the amount of tax the claimant, estate, or trust pays:
(i) on a purchase of a hand tool:
(A) if the purchase is made on or after July 1, 2004;
(B) if the hand tool is used or consumed primarily and directly in a farming operation in the state; and
(C) if the unit purchase price of the hand tool is more than $250; and
(ii) under Chapter 12, Sales and Use Tax Act, on the purchase described in Subsection (1)(c)(i).
(2) A claimant, estate, or trust:
(a) shall retain the following to establish the amount of tax the claimant, estate, or trust paid under Chapter 12, Sales and Use Tax Act, on the purchase described in Subsection (1)(c)(i):
(i) a receipt;
(ii) an invoice; or
(iii) a document similar to a document described in Subsection (2)(a)(i) or (ii); and
(b) may not carry forward or carry back a tax credit under this section.
(3) (a) In accordance with any rules prescribed by the commission under Subsection (3)(b), the commission shall:
(i) make a refund to a claimant, estate, or trust that claims a tax credit under this section if the amount of the tax credit exceeds the claimant's, estate's, or trust's tax liability under this chapter; and
(ii) transfer at least annually from the General Fund into the Education Fund an amount equal to the amount of tax credit claimed under this section.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules providing procedures for making:
(i) a refund to a claimant, estate, or trust as required by Subsection (3)(a)(i); or
(ii) transfers from the General Fund into the Education Fund as required by Subsection (3)(a)(ii).
Section 1023. Section 59-10-1205 is amended to read:
59-10-1205
. Adjustments to adjusted gross income of a resident or nonresident individual.(1) In calculating state taxable income for purposes of this part, the commission shall allow an adjustment to adjusted gross income of a resident or nonresident individual if the resident or nonresident individual would otherwise:
(a) receive a double tax benefit under this part; or
(b) suffer a double tax detriment under this part.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to allow for the adjustment to adjusted gross income required by Subsection (1).
Section 1024. Section 59-11-113 is amended to read:
59-11-113
. Administration by commission -- Action for collection of tax -- Limitation of action -- Limit for refund or credit of tax -- Appeal.(1) The commission is charged with the administration and enforcement of this chapter and may promulgate rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to effectuate the purposes of this chapter.
(2) The commission shall collect the tax provided for under this chapter, including applicable interest and penalties, and shall represent this state in all matters pertaining to collection, either before courts or otherwise. The commission may institute proceedings for the collection of this tax, and any interest and penalties on the tax, in the district court of any county in which any portion of the property is situated. For this purpose the commission may call to its assistance the attorney general and the various county attorneys throughout the state.
(3) (a) Except as provided in Subsections (4) through (7), the commission shall assess a tax under this chapter within three years after a taxpayer files a return.
(b) Except as provided in Subsections (4) through (7), if the commission does not assess a tax under this chapter within the three-year period provided in Subsection (3)(a), the commission may not file an action to collect the tax.
(4) Notwithstanding Subsection (3), the commission may assess a tax at any time if a taxpayer:
(a) files a false or fraudulent return with intent to evade; or
(b) does not file a return.
(5) Notwithstanding Subsection (3), beginning on July 1, 1998, the commission may extend the period to make an assessment or to commence a proceeding to collect the tax under this chapter if:
(a) the three-year period under Subsection (3) has not expired; and
(b) the commission and the taxpayer sign a written agreement:
(i) authorizing the extension; and
(ii) providing for the length of the extension.
(6) If the commission delays an audit at the request of a taxpayer, the commission may make an assessment as provided in Subsection (7) if:
(a) the taxpayer subsequently refuses to agree to an extension request by the commission; and
(b) the three-year period under Subsection (3) expires before the commission completes the audit.
(7) An assessment under Subsection (6) shall be:
(a) for the time period for which the commission could not make an assessment because of the expiration of the three-year period; and
(b) in an amount equal to the difference between:
(i) the commission's estimate of the amount of taxes the taxpayer would have been assessed for the time period described in Subsection (7)(a); and
(ii) the amount of taxes the taxpayer actually paid for the time period described in Subsection (7)(a).
(8) A taxpayer shall:
(a) notify the commission within 90 days after a final determination of a change made in a taxpayer's net income on the taxpayer's federal estate tax return if:
(i) the change is made because:
(A) the taxpayer filed an amended federal return; or
(B) of an action by the federal government; and
(ii) the change affects the taxpayer's state tax liability; and
(b) if the taxpayer is required to notify the commission of a change as provided in Subsection (8)(a)(i), file a copy of:
(i) the amended federal return; and
(ii) an amended state return which conforms to the changes on the federal return.
(9) (a) The commission may assess a deficiency in state estate taxes as a result of a change in a taxpayer's net income under Subsection (8):
(i) within three years after a taxpayer files an amended return under Subsection (8)(b) if the taxpayer files an amended return; or
(ii) within six years after the change if a taxpayer does not file an amended return under Subsection (8)(b).
(b) The amount of a deficiency assessed under Subsection (9)(a) may not exceed the amount of the increase in Utah tax attributable to the change in the taxpayer's net income under Subsection (8)(a).
(10) (a) Except as provided in Subsection (10)(b), the commission may not make a credit or refund unless the taxpayer files a claim with the commission within three years of the date of overpayment.
(b) Notwithstanding Subsection (10)(a), beginning on July 1, 1998, the commission shall extend the period for a taxpayer to file a claim under Subsection (10)(a) if:
(i) the three-year period under Subsection (10)(a) has not expired; and
(ii) the commission and the taxpayer sign a written agreement:
(A) authorizing the extension; and
(B) providing for the length of the extension.
(11) Any party to a proceeding before the district court concerning the tax imposed by this chapter, including the commission, may appeal from the order, judgment, or decree entered by the district court.
Section 1025. Section 59-12-102 (Superseded 01/01/08) is amended to read:
59-12-102 (Superseded 01/01/08)
. Definitions.As used in this chapter:
(1) (a) "Admission or user fees" includes season passes.
(b) "Admission or user fees" does not include annual membership dues to private organizations.
(2) "Agreement" means the Streamlined Sales and Use Tax Agreement described in Section 59-12-102.1.
(3) "Agreement combined tax rate" means the sum of the tax rates:
(a) listed under Subsection (4); and
(b) that are imposed within a local taxing jurisdiction.
(4) "Agreement sales and use tax" means a tax imposed under:
(a) Subsection 59-12-103(2)(a)(i);
(b) Subsection 59-12-103(2)(b)(i);
(c) Subsection 59-12-103(2)(c)(i);
(d) Subsection 59-12-103(2)(d)(i);
(e) Subsection 59-12-103(2)(e)(ii)(A);
(f) Subsection 59-12-103(2)(e)(iii)(A);
(g) Section 59-12-204;
(h) Section 59-12-401;
(i) Section 59-12-402;
(j) Section 59-12-501;
(k) Section 59-12-502;
(l) Section 59-12-703;
(m) Section 59-12-802;
(n) Section 59-12-804;
(o) Section 59-12-1001;
(p) Section 59-12-1102;
(q) Section 59-12-1302;
(r) Section 59-12-1402; or
(s) Section 59-12-1503.
(5) "Aircraft" is as defined in Section 72-10-102.
(6) "Alcoholic beverage" means a beverage that:
(a) is suitable for human consumption; and
(b) contains .5% or more alcohol by volume.
(7) "Area agency on aging" is as defined in Section 62A-3-101.
(8) "Assisted amusement device" means an amusement device, skill device, or ride device that is started and stopped by an individual:
(a) who is not the purchaser or renter of the right to use or operate the amusement device, skill device, or ride device; and
(b) at the direction of the seller of the right to use the amusement device, skill device, or ride device.
(9) "Assisted cleaning or washing of tangible personal property" means cleaning or washing of tangible personal property if the cleaning or washing labor is primarily performed by an individual:
(a) who is not the purchaser of the cleaning or washing of the tangible personal property; and
(b) at the direction of the seller of the cleaning or washing of the tangible personal property.
(10) "Authorized carrier" means:
(a) in the case of vehicles operated over public highways, the holder of credentials indicating that the vehicle is or will be operated pursuant to both the International Registration Plan and the International Fuel Tax Agreement;
(b) in the case of aircraft, the holder of a Federal Aviation Administration operating certificate or air carrier's operating certificate; or
(c) in the case of locomotives, freight cars, railroad work equipment, or other rolling stock, the holder of a certificate issued by the United States Surface Transportation Board.
(11) (a) Except as provided in Subsection (11)(b), "biomass energy" means any of the following that is used as the primary source of energy to produce fuel or electricity:
(i) material from a plant or tree; or
(ii) other organic matter that is available on a renewable basis, including:
(A) slash and brush from forests and woodlands;
(B) animal waste;
(C) methane produced:
(I) at landfills; or
(II) as a byproduct of the treatment of wastewater residuals;
(D) aquatic plants; and
(E) agricultural products.
(b) "Biomass energy" does not include:
(i) black liquor;
(ii) treated woods; or
(iii) biomass from municipal solid waste other than methane produced:
(A) at landfills; or
(B) as a byproduct of the treatment of wastewater residuals.
(12) (a) "Bundled transaction" means the sale of two or more items of tangible personal property if:
(i) one or more of the items of tangible personal property is food and food ingredients; and
(ii) the items of tangible personal property are:
(A) distinct and identifiable; and
(B) sold for one price that is not itemized.
(b) "Bundled transaction" does not include the sale of tangible personal property if the sales price varies, or is negotiable, on the basis of the selection by the purchaser of the items of tangible personal property included in the transaction.
(c) For purposes of Subsection (12)(a)(ii)(A), tangible personal property that is distinct and identifiable does not include:
(i) packaging that:
(A) accompanies the sale of the tangible personal property; and
(B) is incidental or immaterial to the sale of the tangible personal property;
(ii) tangible personal property provided free of charge with the purchase of another item of tangible personal property; or
(iii) an item of tangible personal property included in the definition of "purchase price."
(d) For purposes of Subsection (12)(c)(ii), an item of tangible personal property is provided free of charge with the purchase of another item of tangible personal property if the sales price of the purchased item of tangible personal property does not vary depending on the inclusion of the tangible personal property provided free of charge.
(13) "Certified automated system" means software certified by the governing board of the agreement in accordance with Section 59-12-102.1 that:
(a) calculates the agreement sales and use tax imposed within a local taxing jurisdiction:
(i) on a transaction; and
(ii) in the states that are members of the agreement;
(b) determines the amount of agreement sales and use tax to remit to a state that is a member of the agreement; and
(c) maintains a record of the transaction described in Subsection (13)(a)(i).
(14) "Certified service provider" means an agent certified:
(a) by the governing board of the agreement in accordance with Section 59-12-102.1; and
(b) to perform all of a seller's sales and use tax functions for an agreement sales and use tax other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's own purchases.
(15) (a) Subject to Subsection (15)(b), "clothing" means all human wearing apparel suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "clothing"; and
(ii) that are consistent with the list of items that constitute "clothing" under the agreement.
(16) "Coal-to-liquid" means the process of converting coal into a liquid synthetic fuel.
(17) "Commercial use" means the use of gas, electricity, heat, coal, fuel oil, or other fuels that does not constitute industrial use under Subsection (41) or residential use under Subsection (79).
(18) (a) "Common carrier" means a person engaged in or transacting the business of transporting passengers, freight, merchandise, or other property for hire within this state.
(b) (i) "Common carrier" does not include a person who, at the time the person is traveling to or from that person's place of employment, transports a passenger to or from the passenger's place of employment.
(ii) For purposes of Subsection (18)(b)(i), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining what constitutes a person's place of employment.
(19) "Component part" includes:
(a) poultry, dairy, and other livestock feed, and their components;
(b) baling ties and twine used in the baling of hay and straw;
(c) fuel used for providing temperature control of orchards and commercial greenhouses doing a majority of their business in wholesale sales, and for providing power for off-highway type farm machinery; and
(d) feed, seeds, and seedlings.
(20) "Computer" means an electronic device that accepts information:
(a) (i) in digital form; or
(ii) in a form similar to digital form; and
(b) manipulates that information for a result based on a sequence of instructions.
(21) "Computer software" means a set of coded instructions designed to cause:
(a) a computer to perform a task; or
(b) automatic data processing equipment to perform a task.
(22) "Construction materials" means any tangible personal property that will be converted into real property.
(23) "Delivered electronically" means delivered to a purchaser by means other than tangible storage media.
(24) (a) "Delivery charge" means a charge:
(i) by a seller of:
(A) tangible personal property; or
(B) services; and
(ii) for preparation and delivery of the tangible personal property or services described in Subsection (24)(a)(i) to a location designated by the purchaser.
(b) "Delivery charge" includes a charge for the following:
(i) transportation;
(ii) shipping;
(iii) postage;
(iv) handling;
(v) crating; or
(vi) packing.
(25) "Dietary supplement" means a product, other than tobacco, that:
(a) is intended to supplement the diet;
(b) contains one or more of the following dietary ingredients:
(i) a vitamin;
(ii) a mineral;
(iii) an herb or other botanical;
(iv) an amino acid;
(v) a dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or
(vi) a concentrate, metabolite, constituent, extract, or combination of any ingredient described in Subsections (25)(b)(i) through (v);
(c) (i) except as provided in Subsection (25)(c)(ii), is intended for ingestion in:
(A) tablet form;
(B) capsule form;
(C) powder form;
(D) softgel form;
(E) gelcap form; or
(F) liquid form; or
(ii) notwithstanding Subsection (25)(c)(i), if the product is not intended for ingestion in a form described in Subsections (25)(c)(i)(A) through (F), is not represented:
(A) as conventional food; and
(B) for use as a sole item of:
(I) a meal; or
(II) the diet; and
(d) is required to be labeled as a dietary supplement:
(i) identifiable by the "Supplemental Facts" box found on the label; and
(ii) as required by 21 C.F.R. Sec. 101.36.
(26) (a) "Direct mail" means printed material delivered or distributed by United States mail or other delivery service:
(i) to:
(A) a mass audience; or
(B) addressees on a mailing list provided by a purchaser of the mailing list; and
(ii) if the cost of the printed material is not billed directly to the recipients.
(b) "Direct mail" includes tangible personal property supplied directly or indirectly by a purchaser to a seller of direct mail for inclusion in a package containing the printed material.
(c) "Direct mail" does not include multiple items of printed material delivered to a single address.
(27) (a) "Disposable home medical equipment or supplies" means medical equipment or supplies that:
(i) cannot withstand repeated use; and
(ii) are purchased by, for, or on behalf of a person other than:
(A) a health care facility as defined in Section 26-21-2;
(B) a health care provider as defined in Section 78-14-3;
(C) an office of a health care provider described in Subsection (27)(a)(ii)(B); or
(D) a person similar to a person described in Subsections (27)(a)(ii)(A) through (C).
(b) "Disposable home medical equipment or supplies" does not include:
(i) a drug;
(ii) durable medical equipment;
(iii) a hearing aid;
(iv) a hearing aid accessory;
(v) mobility enhancing equipment; or
(vi) tangible personal property used to correct impaired vision, including:
(A) eyeglasses; or
(B) contact lenses.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes medical equipment or supplies.
(28) (a) "Drug" means a compound, substance, or preparation, or a component of a compound, substance, or preparation that is:
(i) recognized in:
(A) the official United States Pharmacopoeia;
(B) the official Homeopathic Pharmacopoeia of the United States;
(C) the official National Formulary; or
(D) a supplement to a publication listed in Subsections (28)(a)(i)(A) through (C);
(ii) intended for use in the:
(A) diagnosis of disease;
(B) cure of disease;
(C) mitigation of disease;
(D) treatment of disease; or
(E) prevention of disease; or
(iii) intended to affect:
(A) the structure of the body; or
(B) any function of the body.
(b) "Drug" does not include:
(i) food and food ingredients;
(ii) a dietary supplement;
(iii) an alcoholic beverage; or
(iv) a prosthetic device.
(29) (a) Except as provided in Subsection (29)(c), "durable medical equipment" means equipment that:
(i) can withstand repeated use;
(ii) is primarily and customarily used to serve a medical purpose;
(iii) generally is not useful to a person in the absence of illness or injury; and
(iv) is not worn in or on the body.
(b) "Durable medical equipment" includes parts used in the repair or replacement of the equipment described in Subsection (29)(a).
(c) Notwithstanding Subsection (29)(a), "durable medical equipment" does not include mobility enhancing equipment.
(30) "Electronic" means:
(a) relating to technology; and
(b) having:
(i) electrical capabilities;
(ii) digital capabilities;
(iii) magnetic capabilities;
(iv) wireless capabilities;
(v) optical capabilities;
(vi) electromagnetic capabilities; or
(vii) capabilities similar to Subsections (30)(b)(i) through (vi).
(31) "Employee" is as defined in Section 59-10-401.
(32) "Fixed guideway" means a public transit facility that uses and occupies:
(a) rail for the use of public transit; or
(b) a separate right-of-way for the use of public transit.
(33) (a) "Food and food ingredients" means substances:
(i) regardless of whether the substances are in:
(A) liquid form;
(B) concentrated form;
(C) solid form;
(D) frozen form;
(E) dried form; or
(F) dehydrated form; and
(ii) that are:
(A) sold for:
(I) ingestion by humans; or
(II) chewing by humans; and
(B) consumed for the substance's:
(I) taste; or
(II) nutritional value.
(b) "Food and food ingredients" includes an item described in Subsection (65)(b)(iii).
(c) "Food and food ingredients" does not include:
(i) an alcoholic beverage;
(ii) tobacco; or
(iii) prepared food.
(34) (a) "Fundraising sales" means sales:
(i) (A) made by a school; or
(B) made by a school student;
(ii) that are for the purpose of raising funds for the school to purchase equipment, materials, or provide transportation; and
(iii) that are part of an officially sanctioned school activity.
(b) For purposes of Subsection (34)(a)(iii), "officially sanctioned school activity" means a school activity:
(i) that is conducted in accordance with a formal policy adopted by the school or school district governing the authorization and supervision of fundraising activities;
(ii) that does not directly or indirectly compensate an individual teacher or other educational personnel by direct payment, commissions, or payment in kind; and
(iii) the net or gross revenues from which are deposited in a dedicated account controlled by the school or school district.
(35) "Geothermal energy" means energy contained in heat that continuously flows outward from the earth that is used as the sole source of energy to produce electricity.
(36) "Governing board of the agreement" means the governing board of the agreement that is:
(a) authorized to administer the agreement; and
(b) established in accordance with the agreement.
(37) (a) For purposes of Subsection 59-12-104(41), "governmental entity" means:
(i) the executive branch of the state, including all departments, institutions, boards, divisions, bureaus, offices, commissions, and committees;
(ii) the judicial branch of the state, including the courts, the Judicial Council, the Office of the Court Administrator, and similar administrative units in the judicial branch;
(iii) the legislative branch of the state, including the House of Representatives, the Senate, the Legislative Printing Office, the Office of Legislative Research and General Counsel, the Office of the Legislative Auditor General, and the Office of the Legislative Fiscal Analyst;
(iv) the National Guard;
(v) an independent entity as defined in Section 63E-1-102; or
(vi) a political subdivision as defined in Section 17B-1-102.
(b) "Governmental entity" does not include the state systems of public and higher education, including:
(i) a college campus of the Utah College of Applied Technology;
(ii) a school;
(iii) the State Board of Education;
(iv) the State Board of Regents; or
(v) a state institution of higher education as defined in Section 53B-3-102.
(38) (a) "Hearing aid" means:
(i) an instrument or device having an electronic component that is designed to:
(A) (I) improve impaired human hearing; or
(II) correct impaired human hearing; and
(B) (I) be worn in the human ear; or
(II) affixed behind the human ear;
(ii) an instrument or device that is surgically implanted into the cochlea; or
(iii) a telephone amplifying device.
(b) "Hearing aid" does not include:
(i) except as provided in Subsection (38)(a)(i)(B) or (38)(a)(ii), an instrument or device having an electronic component that is designed to be worn on the body;
(ii) except as provided in Subsection (38)(a)(iii), an assistive listening device or system designed to be used by one individual, including:
(A) a personal amplifying system;
(B) a personal FM system;
(C) a television listening system; or
(D) a device or system similar to a device or system described in Subsections (38)(b)(ii)(A) through (C); or
(iii) an assistive listening device or system designed to be used by more than one individual, including:
(A) a device or system installed in:
(I) an auditorium;
(II) a church;
(III) a conference room;
(IV) a synagogue; or
(V) a theater; or
(B) a device or system similar to a device or system described in Subsections (38)(b)(iii)(A)(I) through (V).
(39) (a) "Hearing aid accessory" means a hearing aid:
(i) component;
(ii) attachment; or
(iii) accessory.
(b) "Hearing aid accessory" includes:
(i) a hearing aid neck loop;
(ii) a hearing aid cord;
(iii) a hearing aid ear mold;
(iv) hearing aid tubing;
(v) a hearing aid ear hook; or
(vi) a hearing aid remote control.
(c) "Hearing aid accessory" does not include:
(i) a component, attachment, or accessory designed to be used only with an:
(A) instrument or device described in Subsection (38)(b)(i); or
(B) assistive listening device or system described in Subsection (38)(b)(ii) or (iii); or
(ii) a hearing aid battery.
(40) "Hydroelectric energy" means water used as the sole source of energy to produce electricity.
(41) "Industrial use" means the use of natural gas, electricity, heat, coal, fuel oil, or other fuels:
(a) in mining or extraction of minerals;
(b) in agricultural operations to produce an agricultural product up to the time of harvest or placing the agricultural product into a storage facility, including:
(i) commercial greenhouses;
(ii) irrigation pumps;
(iii) farm machinery;
(iv) implements of husbandry as defined in Subsection 41-1a-102(23) that are not registered under Title 41, Chapter 1a, Part 2, Registration; and
(v) other farming activities;
(c) in manufacturing tangible personal property at an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(d) by a scrap recycler if:
(i) from a fixed location, the scrap recycler utilizes machinery or equipment to process one or more of the following items into prepared grades of processed materials for use in new products:
(A) iron;
(B) steel;
(C) nonferrous metal;
(D) paper;
(E) glass;
(F) plastic;
(G) textile; or
(H) rubber; and
(ii) the new products under Subsection (41)(d)(i) would otherwise be made with nonrecycled materials; or
(e) in producing a form of energy or steam described in Subsection 54-2-1(2)(a) by a cogeneration facility as defined in Section 54-2-1.
(42) (a) Except as provided in Subsection (42)(b), "installation charge" means a charge for installing tangible personal property.
(b) Notwithstanding Subsection (42)(a), "installation charge" does not include a charge for repairs or renovations of tangible personal property.
(43) (a) "Lease" or "rental" means a transfer of possession or control of tangible personal property for:
(i) (A) a fixed term; or
(B) an indeterminate term; and
(ii) consideration.
(b) "Lease" or "rental" includes an agreement covering a motor vehicle and trailer if the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in Section 7701(h)(1), Internal Revenue Code.
(c) "Lease" or "rental" does not include:
(i) a transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;
(ii) a transfer of possession or control of property under an agreement that requires the transfer of title:
(A) upon completion of required payments; and
(B) if the payment of an option price does not exceed the greater of:
(I) $100; or
(II) 1% of the total required payments; or
(iii) providing tangible personal property along with an operator for a fixed period of time or an indeterminate period of time if the operator is necessary for equipment to perform as designed.
(d) For purposes of Subsection (43)(c)(iii), an operator is necessary for equipment to perform as designed if the operator’s duties exceed the:
(i) set-up of tangible personal property;
(ii) maintenance of tangible personal property; or
(iii) inspection of tangible personal property.
(44) "Load and leave" means delivery to a purchaser by use of a tangible storage media if the tangible storage media is not physically transferred to the purchaser.
(45) "Local taxing jurisdiction" means a:
(a) county that is authorized to impose an agreement sales and use tax;
(b) city that is authorized to impose an agreement sales and use tax; or
(c) town that is authorized to impose an agreement sales and use tax.
(46) "Manufactured home" is as defined in Section 58-56-3.
(47) For purposes of Section 59-12-104, "manufacturing facility" means:
(a) an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(b) a scrap recycler if:
(i) from a fixed location, the scrap recycler utilizes machinery or equipment to process one or more of the following items into prepared grades of processed materials for use in new products:
(A) iron;
(B) steel;
(C) nonferrous metal;
(D) paper;
(E) glass;
(F) plastic;
(G) textile; or
(H) rubber; and
(ii) the new products under Subsection (47)(b)(i) would otherwise be made with nonrecycled materials; or
(c) a cogeneration facility as defined in Section 54-2-1.
(48) "Member of the immediate family of the producer" means a person who is related to a producer described in Subsection 59-12-104(20)(a) as a:
(a) child or stepchild, regardless of whether the child or stepchild is:
(i) an adopted child or adopted stepchild; or
(ii) a foster child or foster stepchild;
(b) grandchild or stepgrandchild;
(c) grandparent or stepgrandparent;
(d) nephew or stepnephew;
(e) niece or stepniece;
(f) parent or stepparent;
(g) sibling or stepsibling;
(h) spouse;
(i) person who is the spouse of a person described in Subsections (48)(a) through (g); or
(j) person similar to a person described in Subsections (48)(a) through (i) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(49) "Mobile home" is as defined in Section 58-56-3.
(50) "Mobile telecommunications service" is as defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
(51) (a) Except as provided in Subsection (51)(c), "mobility enhancing equipment" means equipment that is:
(i) primarily and customarily used to provide or increase the ability to move from one place to another;
(ii) appropriate for use in a:
(A) home; or
(B) motor vehicle; and
(iii) not generally used by persons with normal mobility.
(b) "Mobility enhancing equipment" includes parts used in the repair or replacement of the equipment described in Subsection (51)(a).
(c) Notwithstanding Subsection (51)(a), "mobility enhancing equipment" does not include:
(i) a motor vehicle;
(ii) equipment on a motor vehicle if that equipment is normally provided by the motor vehicle manufacturer;
(iii) durable medical equipment; or
(iv) a prosthetic device.
(52) "Model 1 seller" means a seller that has selected a certified service provider as the seller's agent to perform all of the seller’s sales and use tax functions for agreement sales and use taxes other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's own purchases.
(53) "Model 2 seller" means a seller that:
(a) except as provided in Subsection (53)(b), has selected a certified automated system to perform the seller's sales tax functions for agreement sales and use taxes; and
(b) notwithstanding Subsection (53)(a), retains responsibility for remitting all of the sales tax:
(i) collected by the seller; and
(ii) to the appropriate local taxing jurisdiction.
(54) (a) Subject to Subsection (54)(b), "model 3 seller" means a seller that has:
(i) sales in at least five states that are members of the agreement;
(ii) total annual sales revenues of at least $500,000,000;
(iii) a proprietary system that calculates the amount of tax:
(A) for an agreement sales and use tax; and
(B) due to each local taxing jurisdiction; and
(iv) entered into a performance agreement with the governing board of the agreement.
(b) For purposes of Subsection (54)(a), "model 3 seller" includes an affiliated group of sellers using the same proprietary system.
(55) "Modular home" means a modular unit as defined in Section 58-56-3.
(56) "Motor vehicle" is as defined in Section 41-1a-102.
(57) "Oil shale" means a group of fine black to dark brown shales containing bituminous material that yields petroleum upon distillation.
(58) (a) "Other fuels" means products that burn independently to produce heat or energy.
(b) "Other fuels" includes oxygen when it is used in the manufacturing of tangible personal property.
(59) "Pawnbroker" is as defined in Section 13-32a-102.
(60) "Pawn transaction" is as defined in Section 13-32a-102.
(61) (a) "Permanently attached to real property" means that for tangible personal property attached to real property:
(i) the attachment of the tangible personal property to the real property:
(A) is essential to the use of the tangible personal property; and
(B) suggests that the tangible personal property will remain attached to the real property in the same place over the useful life of the tangible personal property; or
(ii) if the tangible personal property is detached from the real property, the detachment would:
(A) cause substantial damage to the tangible personal property; or
(B) require substantial alteration or repair of the real property to which the tangible personal property is attached.
(b) "Permanently attached to real property" includes:
(i) the attachment of an accessory to the tangible personal property if the accessory is:
(A) essential to the operation of the tangible personal property; and
(B) attached only to facilitate the operation of the tangible personal property;
(ii) a temporary detachment of tangible personal property from real property for a repair or renovation if the repair or renovation is performed where the tangible personal property and real property are located; or
(iii) an attachment of the following tangible personal property to real property, regardless of whether the attachment to real property is only through a line that supplies water, electricity, gas, telephone, cable, or supplies a similar item as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(A) property attached to oil, gas, or water pipelines, other than the property listed in Subsection (61)(c)(iii);
(B) a hot water heater;
(C) a water softener system; or
(D) a water filtration system, other than a water filtration system manufactured as part of a refrigerator.
(c) "Permanently attached to real property" does not include:
(i) the attachment of portable or movable tangible personal property to real property if that portable or movable tangible personal property is attached to real property only for:
(A) convenience;
(B) stability; or
(C) for an obvious temporary purpose;
(ii) the detachment of tangible personal property from real property other than the detachment described in Subsection (61)(b)(ii); or
(iii) an attachment of the following tangible personal property to real property if the attachment to real property is only through a line that supplies water, electricity, gas, telephone, cable, or supplies a similar item as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(A) a refrigerator;
(B) a washer;
(C) a dryer;
(D) a stove;
(E) a television;
(F) a computer;
(G) a telephone; or
(H) tangible personal property similar to Subsections (61)(c)(iii)(A) through (G) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(62) "Person" includes any individual, firm, partnership, joint venture, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any county, city, municipality, district, or other local governmental entity of the state, or any group or combination acting as a unit.
(63) "Place of primary use":
(a) for telephone service other than mobile telecommunications service, means the street address representative of where the purchaser's use of the telephone service primarily occurs, which shall be:
(i) the residential street address of the purchaser; or
(ii) the primary business street address of the purchaser; or
(b) for mobile telecommunications service, is as defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
(64) "Postproduction" means an activity related to the finishing or duplication of a medium described in Subsection 59-12-104(56)(a).
(65) (a) "Prepared food" means:
(i) food:
(A) sold in a heated state; or
(B) heated by a seller;
(ii) two or more food ingredients mixed or combined by the seller for sale as a single item; or
(iii) except as provided in Subsection (65)(c), food sold with an eating utensil provided by the seller, including a:
(A) plate;
(B) knife;
(C) fork;
(D) spoon;
(E) glass;
(F) cup;
(G) napkin; or
(H) straw.
(b) "Prepared food" does not include:
(i) food that a seller only:
(A) cuts;
(B) repackages; or
(C) pasteurizes; or
(ii) (A) the following:
(I) raw egg;
(II) raw fish;
(III) raw meat;
(IV) raw poultry; or
(V) a food containing an item described in Subsections (65)(b)(ii)(A)(I) through (IV); and
(B) if the Food and Drug Administration recommends in Chapter 3, Part 401.11 of the Food and Drug Administration's Food Code that a consumer cook the items described in Subsection (65)(b)(ii)(A) to prevent food borne illness; or
(iii) the following if sold without eating utensils provided by the seller:
(A) food and food ingredients sold by a seller if the seller's proper primary classification under the 2002 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget, is manufacturing in Sector 311, Food Manufacturing, except for Subsector 3118, Bakeries and Tortilla Manufacturing;
(B) food and food ingredients sold in an unheated state:
(I) by weight or volume; and
(II) as a single item; or
(C) a bakery item, including:
(I) a bagel;
(II) a bar;
(III) a biscuit;
(IV) bread;
(V) a bun;
(VI) a cake;
(VII) a cookie;
(VIII) a croissant;
(IX) a danish;
(X) a donut;
(XI) a muffin;
(XII) a pastry;
(XIII) a pie;
(XIV) a roll;
(XV) a tart;
(XVI) a torte; or
(XVII) a tortilla.
(c) Notwithstanding Subsection (65)(a)(iii), an eating utensil provided by the seller does not include the following used to transport the food:
(i) a container; or
(ii) packaging.
(66) "Prescription" means an order, formula, or recipe that is issued:
(a) (i) orally;
(ii) in writing;
(iii) electronically; or
(iv) by any other manner of transmission; and
(b) by a licensed practitioner authorized by the laws of a state.
(67) (a) Except as provided in Subsection (67)(b)(ii) or (iii), "prewritten computer software" means computer software that is not designed and developed:
(i) by the author or other creator of the computer software; and
(ii) to the specifications of a specific purchaser.
(b) "Prewritten computer software" includes:
(i) a prewritten upgrade to computer software if the prewritten upgrade to the computer software is not designed and developed:
(A) by the author or other creator of the computer software; and
(B) to the specifications of a specific purchaser;
(ii) notwithstanding Subsection (67)(a), computer software designed and developed by the author or other creator of the computer software to the specifications of a specific purchaser if the computer software is sold to a person other than the purchaser; or
(iii) notwithstanding Subsection (67)(a) and except as provided in Subsection (67)(c), prewritten computer software or a prewritten portion of prewritten computer software:
(A) that is modified or enhanced to any degree; and
(B) if the modification or enhancement described in Subsection (67)(b)(iii)(A) is designed and developed to the specifications of a specific purchaser.
(c) Notwithstanding Subsection (67)(b)(iii), "prewritten computer software" does not include a modification or enhancement described in Subsection (67)(b)(iii) if the charges for the modification or enhancement are:
(i) reasonable; and
(ii) separately stated on the invoice or other statement of price provided to the purchaser.
(68) (a) "Prosthetic device" means a device that is worn on or in the body to:
(i) artificially replace a missing portion of the body;
(ii) prevent or correct a physical deformity or physical malfunction; or
(iii) support a weak or deformed portion of the body.
(b) "Prosthetic device" includes:
(i) parts used in the repairs or renovation of a prosthetic device; or
(ii) replacement parts for a prosthetic device.
(c) "Prosthetic device" does not include:
(i) corrective eyeglasses;
(ii) contact lenses;
(iii) hearing aids; or
(iv) dental prostheses.
(69) (a) "Protective equipment" means an item:
(i) for human wear; and
(ii) that is:
(A) designed as protection:
(I) to the wearer against injury or disease; or
(II) against damage or injury of other persons or property; and
(B) not suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "protective equipment"; and
(ii) that are consistent with the list of items that constitute "protective equipment" under the agreement.
(70) (a) For purposes of Subsection 59-12-104(41), "publication" means any written or printed matter, other than a photocopy:
(i) regardless of:
(A) characteristics;
(B) copyright;
(C) form;
(D) format;
(E) method of reproduction; or
(F) source; and
(ii) made available in printed or electronic format.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "photocopy."
(71) (a) "Purchase price" and "sales price" mean the total amount of consideration:
(i) valued in money; and
(ii) for which tangible personal property or services are:
(A) sold;
(B) leased; or
(C) rented.
(b) "Purchase price" and "sales price" include:
(i) the seller’s cost of the tangible personal property or services sold;
(ii) expenses of the seller, including:
(A) the cost of materials used;
(B) a labor cost;
(C) a service cost;
(D) interest;
(E) a loss;
(F) the cost of transportation to the seller; or
(G) a tax imposed on the seller; or
(iii) a charge by the seller for any service necessary to complete the sale.
(c) "Purchase price" and "sales price" do not include:
(i) a discount:
(A) in a form including:
(I) cash;
(II) term; or
(III) coupon;
(B) that is allowed by a seller;
(C) taken by a purchaser on a sale; and
(D) that is not reimbursed by a third party; or
(ii) the following if separately stated on an invoice, bill of sale, or similar document provided to the purchaser:
(A) the amount of a trade-in;
(B) the following from credit extended on the sale of tangible personal property or services:
(I) interest charges;
(II) financing charges; or
(III) carrying charges;
(C) a tax or fee legally imposed directly on the consumer;
(D) a delivery charge; or
(E) an installation charge.
(72) "Purchaser" means a person to whom:
(a) a sale of tangible personal property is made; or
(b) a service is furnished.
(73) "Regularly rented" means:
(a) rented to a guest for value three or more times during a calendar year; or
(b) advertised or held out to the public as a place that is regularly rented to guests for value.
(74) "Renewable energy" means:
(a) biomass energy;
(b) hydroelectric energy;
(c) geothermal energy;
(d) solar energy; or
(e) wind energy.
(75) (a) "Renewable energy production facility" means a facility that:
(i) uses renewable energy to produce electricity; and
(ii) has a production capacity of 20 kilowatts or greater.
(b) A facility is a renewable energy production facility regardless of whether the facility is:
(i) connected to an electric grid; or
(ii) located on the premises of an electricity consumer.
(76) "Rental" is as defined in Subsection (43).
(77) "Repairs or renovations of tangible personal property" means:
(a) a repair or renovation of tangible personal property that is not permanently attached to real property; or
(b) attaching tangible personal property to other tangible personal property if the other tangible personal property to which the tangible personal property is attached is not permanently attached to real property.
(78) "Research and development" means the process of inquiry or experimentation aimed at the discovery of facts, devices, technologies, or applications and the process of preparing those devices, technologies, or applications for marketing.
(79) "Residential use" means the use in or around a home, apartment building, sleeping quarters, and similar facilities or accommodations.
(80) "Retail sale" or "sale at retail" means a sale, lease, or rental for a purpose other than:
(a) resale;
(b) sublease; or
(c) subrent.
(81) (a) "Retailer" means any person engaged in a regularly organized business in tangible personal property or any other taxable transaction under Subsection 59-12-103(1), and who is selling to the user or consumer and not for resale.
(b) "Retailer" includes commission merchants, auctioneers, and any person regularly engaged in the business of selling to users or consumers within the state.
(82) (a) "Sale" means any transfer of title, exchange, or barter, conditional or otherwise, in any manner, of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), for consideration.
(b) "Sale" includes:
(i) installment and credit sales;
(ii) any closed transaction constituting a sale;
(iii) any sale of electrical energy, gas, services, or entertainment taxable under this chapter;
(iv) any transaction if the possession of property is transferred but the seller retains the title as security for the payment of the price; and
(v) any transaction under which right to possession, operation, or use of any article of tangible personal property is granted under a lease or contract and the transfer of possession would be taxable if an outright sale were made.
(83) "Sale at retail" is as defined in Subsection (82).
(84) "Sale-leaseback transaction" means a transaction by which title to tangible personal property that is subject to a tax under this chapter is transferred:
(a) by a purchaser-lessee;
(b) to a lessor;
(c) for consideration; and
(d) if:
(i) the purchaser-lessee paid sales and use tax on the purchaser-lessee's initial purchase of the tangible personal property;
(ii) the sale of the tangible personal property to the lessor is intended as a form of financing:
(A) for the property; and
(B) to the purchaser-lessee; and
(iii) in accordance with generally accepted accounting principles, the purchaser-lessee is required to:
(A) capitalize the property for financial reporting purposes; and
(B) account for the lease payments as payments made under a financing arrangement.
(85) "Sales price" is as defined in Subsection (71).
(86) (a) "Sales relating to schools" means the following sales by, amounts paid to, or amounts charged by a school:
(i) sales that are directly related to the school's educational functions or activities, including:
(A) the sale of:
(I) textbooks;
(II) textbook fees;
(III) laboratory fees;
(IV) laboratory supplies; or
(V) safety equipment;
(B) the sale of a uniform, protective equipment, or sports or recreational equipment that:
(I) a student is specifically required to wear as a condition of participation in a school-related event or school-related activity; and
(II) is not readily adaptable to general or continued usage to the extent that it takes the place of ordinary clothing;
(C) sales of the following if the net or gross revenues generated by the sales are deposited into a school district fund or school fund dedicated to school meals:
(I) food and food ingredients; or
(II) prepared food; or
(D) transportation charges for official school activities; or
(ii) amounts paid to or amounts charged by a school for admission to a school-related event or school-related activity.
(b) "Sales relating to schools" does not include:
(i) bookstore sales of items that are not educational materials or supplies;
(ii) except as provided in Subsection (86)(a)(i)(B):
(A) clothing;
(B) clothing accessories or equipment;
(C) protective equipment; or
(D) sports or recreational equipment; or
(iii) amounts paid to or amounts charged by a school for admission to a school-related event or school-related activity if the amounts paid or charged are passed through to a person:
(A) other than a:
(I) school;
(II) nonprofit organization authorized by a school board or a governing body of a private school to organize and direct a competitive secondary school activity; or
(III) nonprofit association authorized by a school board or a governing body of a private school to organize and direct a competitive secondary school activity; and
(B) that is required to collect sales and use taxes under this chapter.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining the term "passed through."
(87) For purposes of this section and Section 59-12-104, "school":
(a) means:
(i) an elementary school or a secondary school that:
(A) is a:
(I) public school; or
(II) private school; and
(B) provides instruction for one or more grades kindergarten through 12; or
(ii) a public school district; and
(b) includes the Electronic High School as defined in Section 53A-15-1002.
(88) "Seller" means a person that makes a sale, lease, or rental of:
(a) tangible personal property; or
(b) a service.
(89) (a) "Semiconductor fabricating, processing, research, or development materials" means tangible personal property:
(i) used primarily in the process of:
(A) (I) manufacturing a semiconductor;
(II) fabricating a semiconductor; or
(III) research or development of a:
(Aa) semiconductor; or
(Bb) semiconductor manufacturing process; or
(B) maintaining an environment suitable for a semiconductor; or
(ii) consumed primarily in the process of:
(A) (I) manufacturing a semiconductor;
(II) fabricating a semiconductor; or
(III) research or development of a:
(Aa) semiconductor; or
(Bb) semiconductor manufacturing process; or
(B) maintaining an environment suitable for a semiconductor.
(b) "Semiconductor fabricating, processing, research, or development materials" includes:
(i) parts used in the repairs or renovations of tangible personal property described in Subsection (89)(a); or
(ii) a chemical, catalyst, or other material used to:
(A) produce or induce in a semiconductor a:
(I) chemical change; or
(II) physical change;
(B) remove impurities from a semiconductor; or
(C) improve the marketable condition of a semiconductor.
(90) "Senior citizen center" means a facility having the primary purpose of providing services to the aged as defined in Section 62A-3-101.
(91) "Simplified electronic return" means the electronic return:
(a) described in Section 318(C) of the agreement; and
(b) approved by the governing board of the agreement.
(92) "Solar energy" means the sun used as the sole source of energy for producing electricity.
(93) (a) "Sports or recreational equipment" means an item:
(i) designed for human use; and
(ii) that is:
(A) worn in conjunction with:
(I) an athletic activity; or
(II) a recreational activity; and
(B) not suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "sports or recreational equipment"; and
(ii) that are consistent with the list of items that constitute "sports or recreational equipment" under the agreement.
(94) "State" means the state of Utah, its departments, and agencies.
(95) "Storage" means any keeping or retention of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), in this state for any purpose except sale in the regular course of business.
(96) (a) "Tangible personal property" means personal property that:
(i) may be:
(A) seen;
(B) weighed;
(C) measured;
(D) felt; or
(E) touched; or
(ii) is in any manner perceptible to the senses.
(b) "Tangible personal property" includes:
(i) electricity;
(ii) water;
(iii) gas;
(iv) steam; or
(v) prewritten computer software.
(97) "Tar sands" means impregnated sands that yield mixtures of liquid hydrocarbon and require further processing other than mechanical blending before becoming finished petroleum products.
(98) (a) "Telecommunications enabling or facilitating equipment, machinery, or software" means an item listed in Subsection (98)(b) if that item is purchased or leased primarily to enable or facilitate one or more of the following to function:
(i) telecommunications switching or routing equipment, machinery, or software; or
(ii) telecommunications transmission equipment, machinery, or software.
(b) The following apply to Subsection (98)(a):
(i) a pole;
(ii) software;
(iii) a supplementary power supply;
(iv) temperature or environmental equipment or machinery;
(v) test equipment;
(vi) a tower; or
(vii) equipment, machinery, or software that functions similarly to an item listed in Subsections (98)(b)(i) through (vi) as determined by the commission by rule made in accordance with Subsection (98)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (98)(b)(i) through (vi).
(99) "Telecommunications equipment, machinery, or software required for 911 service" means equipment, machinery, or software that is required to comply with 47 C.F.R. Sec. 20.18.
(100) "Telecommunications maintenance or repair equipment, machinery, or software" means equipment, machinery, or software purchased or leased primarily to maintain or repair one or more of the following, regardless of whether the equipment, machinery, or software is purchased or leased as a spare part or as an upgrade or modification to one or more of the following:
(a) telecommunications enabling or facilitating equipment, machinery, or software;
(b) telecommunications switching or routing equipment, machinery, or software; or
(c) telecommunications transmission equipment, machinery, or software.
(101) (a) "Telecommunications switching or routing equipment, machinery, or software" means an item listed in Subsection (101)(b) if that item is purchased or leased primarily for switching or routing:
(i) voice communications;
(ii) data communications; or
(iii) telephone service.
(b) The following apply to Subsection (101)(a):
(i) a bridge;
(ii) a computer;
(iii) a cross connect;
(iv) a modem;
(v) a multiplexer;
(vi) plug in circuitry;
(vii) a router;
(viii) software;
(ix) a switch; or
(x) equipment, machinery, or software that functions similarly to an item listed in Subsections (101)(b)(i) through (ix) as determined by the commission by rule made in accordance with Subsection (101)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (101)(b)(i) through (ix).
(102) (a) "Telecommunications transmission equipment, machinery, or software" means an item listed in Subsection (102)(b) if that item is purchased or leased primarily for sending, receiving, or transporting:
(i) voice communications;
(ii) data communications; or
(iii) telephone service.
(b) The following apply to Subsection (102)(a):
(i) an amplifier;
(ii) a cable;
(iii) a closure;
(iv) a conduit;
(v) a controller;
(vi) a duplexer;
(vii) a filter;
(viii) an input device;
(ix) an input/output device;
(x) an insulator;
(xi) microwave machinery or equipment;
(xii) an oscillator;
(xiii) an output device;
(xiv) a pedestal;
(xv) a power converter;
(xvi) a power supply;
(xvii) a radio channel;
(xviii) a radio receiver;
(xix) a radio transmitter;
(xx) a repeater;
(xxi) software;
(xxii) a terminal;
(xxiii) a timing unit;
(xxiv) a transformer;
(xxv) a wire; or
(xxvi) equipment, machinery, or software that functions similarly to an item listed in Subsections (102)(b)(i) through (xxv) as determined by the commission by rule made in accordance with Subsection (102)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (102)(b)(i) through (xxv).
(103) (a) "Telephone service" means a two-way transmission:
(i) by:
(A) wire;
(B) radio;
(C) lightwave; or
(D) other electromagnetic means; and
(ii) of one or more of the following:
(A) a sign;
(B) a signal;
(C) writing;
(D) an image;
(E) sound;
(F) a message;
(G) data; or
(H) other information of any nature.
(b) "Telephone service" includes:
(i) mobile telecommunications service;
(ii) private communications service; or
(iii) automated digital telephone answering service.
(c) "Telephone service" does not include a service or a transaction that a state or a political subdivision of a state is prohibited from taxing as of July 1, 2001, under the Internet Tax Freedom Act, Pub. L. No. 105-277.
(104) Notwithstanding where a call is billed or paid, "telephone service address" means:
(a) if the location described in this Subsection (104)(a) is known, the location of the telephone service equipment:
(i) to which a call is charged; and
(ii) from which the call originates or terminates;
(b) if the location described in Subsection (104)(a) is not known but the location described in this Subsection (104)(b) is known, the location of the origination point of the signal of the telephone service first identified by:
(i) the telecommunications system of the seller; or
(ii) if the system used to transport the signal is not that of the seller, information received by the seller from its service provider; or
(c) if the locations described in Subsection (104)(a) or (b) are not known, the location of a purchaser's primary place of use.
(105) (a) "Telephone service provider" means a person that:
(i) owns, controls, operates, or manages a telephone service; and
(ii) engages in an activity described in Subsection (105)(a)(i) for the shared use with or resale to any person of the telephone service.
(b) A person described in Subsection (105)(a) is a telephone service provider whether or not the Public Service Commission of Utah regulates:
(i) that person; or
(ii) the telephone service that the person owns, controls, operates, or manages.
(106) "Tobacco" means:
(a) a cigarette;
(b) a cigar;
(c) chewing tobacco;
(d) pipe tobacco; or
(e) any other item that contains tobacco.
(107) "Unassisted amusement device" means an amusement device, skill device, or ride device that is started and stopped by the purchaser or renter of the right to use or operate the amusement device, skill device, or ride device.
(108) (a) "Use" means the exercise of any right or power over tangible personal property under Subsection 59-12-103(1), incident to the ownership or the leasing of that property, item, or service.
(b) "Use" does not include the sale, display, demonstration, or trial of that property in the regular course of business and held for resale.
(109) (a) Subject to Subsection (109)(b), "vehicle" means the following that are required to be titled, registered, or titled and registered:
(i) an aircraft as defined in Section 72-10-102;
(ii) a vehicle as defined in Section 41-1a-102;
(iii) an off-highway vehicle as defined in Section 41-22-2; or
(iv) a vessel as defined in Section 41-1a-102.
(b) For purposes of Subsection 59-12-104(33) only, "vehicle" includes:
(i) a vehicle described in Subsection (109)(a); or
(ii) (A) a locomotive;
(B) a freight car;
(C) railroad work equipment; or
(D) other railroad rolling stock.
(110) "Vehicle dealer" means a person engaged in the business of buying, selling, or exchanging a vehicle as defined in Subsection (109).
(111) (a) Except as provided in Subsection (111)(b), "waste energy facility" means a facility that generates electricity:
(i) using as the primary source of energy waste materials that would be placed in a landfill or refuse pit if it were not used to generate electricity, including:
(A) tires;
(B) waste coal; or
(C) oil shale; and
(ii) in amounts greater than actually required for the operation of the facility.
(b) "Waste energy facility" does not include a facility that incinerates:
(i) municipal solid waste;
(ii) hospital waste as defined in 40 C.F.R. 60.51c; or
(iii) medical/infectious waste as defined in 40 C.F.R. 60.51c.
(112) "Watercraft" means a vessel as defined in Section 73-18-2.
(113) "Wind energy" means wind used as the sole source of energy to produce electricity.
(114) "ZIP Code" means a Zoning Improvement Plan Code assigned to a geographic location by the United States Postal Service.
Section 1026. Section 59-12-102 (Effective 01/01/08) is amended to read:
59-12-102 (Effective 01/01/08)
. Definitions.As used in this chapter:
(1) (a) "Admission or user fees" includes season passes.
(b) "Admission or user fees" does not include annual membership dues to private organizations.
(2) "Agreement" means the Streamlined Sales and Use Tax Agreement described in Section 59-12-102.1.
(3) "Agreement combined tax rate" means the sum of the tax rates:
(a) listed under Subsection (4); and
(b) that are imposed within a local taxing jurisdiction.
(4) "Agreement sales and use tax" means a tax imposed under:
(a) Subsection 59-12-103(2)(a)(i);
(b) Subsection 59-12-103(2)(b)(i);
(c) Subsection 59-12-103(2)(c)(i);
(d) Subsection 59-12-103(2)(d)(i);
(e) Subsection 59-12-103(2)(e)(ii)(A);
(f) Subsection 59-12-103(2)(e)(iii)(A);
(g) Section 59-12-204;
(h) Section 59-12-401;
(i) Section 59-12-402;
(j) Section 59-12-501;
(k) Section 59-12-502;
(l) Section 59-12-703;
(m) Section 59-12-802;
(n) Section 59-12-804;
(o) Section 59-12-1001;
(p) Section 59-12-1102;
(q) Section 59-12-1302;
(r) Section 59-12-1402;
(s) Section 59-12-1503; or
(t) Section 59-12-1703.
(5) "Aircraft" is as defined in Section 72-10-102.
(6) "Alcoholic beverage" means a beverage that:
(a) is suitable for human consumption; and
(b) contains .5% or more alcohol by volume.
(7) "Area agency on aging" is as defined in Section 62A-3-101.
(8) "Assisted amusement device" means an amusement device, skill device, or ride device that is started and stopped by an individual:
(a) who is not the purchaser or renter of the right to use or operate the amusement device, skill device, or ride device; and
(b) at the direction of the seller of the right to use the amusement device, skill device, or ride device.
(9) "Assisted cleaning or washing of tangible personal property" means cleaning or washing of tangible personal property if the cleaning or washing labor is primarily performed by an individual:
(a) who is not the purchaser of the cleaning or washing of the tangible personal property; and
(b) at the direction of the seller of the cleaning or washing of the tangible personal property.
(10) "Authorized carrier" means:
(a) in the case of vehicles operated over public highways, the holder of credentials indicating that the vehicle is or will be operated pursuant to both the International Registration Plan and the International Fuel Tax Agreement;
(b) in the case of aircraft, the holder of a Federal Aviation Administration operating certificate or air carrier's operating certificate; or
(c) in the case of locomotives, freight cars, railroad work equipment, or other rolling stock, the holder of a certificate issued by the United States Surface Transportation Board.
(11) (a) Except as provided in Subsection (11)(b), "biomass energy" means any of the following that is used as the primary source of energy to produce fuel or electricity:
(i) material from a plant or tree; or
(ii) other organic matter that is available on a renewable basis, including:
(A) slash and brush from forests and woodlands;
(B) animal waste;
(C) methane produced:
(I) at landfills; or
(II) as a byproduct of the treatment of wastewater residuals;
(D) aquatic plants; and
(E) agricultural products.
(b) "Biomass energy" does not include:
(i) black liquor;
(ii) treated woods; or
(iii) biomass from municipal solid waste other than methane produced:
(A) at landfills; or
(B) as a byproduct of the treatment of wastewater residuals.
(12) (a) "Bundled transaction" means the sale of two or more items of tangible personal property if:
(i) one or more of the items of tangible personal property is food and food ingredients; and
(ii) the items of tangible personal property are:
(A) distinct and identifiable; and
(B) sold for one price that is not itemized.
(b) "Bundled transaction" does not include the sale of tangible personal property if the sales price varies, or is negotiable, on the basis of the selection by the purchaser of the items of tangible personal property included in the transaction.
(c) For purposes of Subsection (12)(a)(ii)(A), tangible personal property that is distinct and identifiable does not include:
(i) packaging that:
(A) accompanies the sale of the tangible personal property; and
(B) is incidental or immaterial to the sale of the tangible personal property;
(ii) tangible personal property provided free of charge with the purchase of another item of tangible personal property; or
(iii) an item of tangible personal property included in the definition of "purchase price."
(d) For purposes of Subsection (12)(c)(ii), an item of tangible personal property is provided free of charge with the purchase of another item of tangible personal property if the sales price of the purchased item of tangible personal property does not vary depending on the inclusion of the tangible personal property provided free of charge.
(13) "Certified automated system" means software certified by the governing board of the agreement in accordance with Section 59-12-102.1 that:
(a) calculates the agreement sales and use tax imposed within a local taxing jurisdiction:
(i) on a transaction; and
(ii) in the states that are members of the agreement;
(b) determines the amount of agreement sales and use tax to remit to a state that is a member of the agreement; and
(c) maintains a record of the transaction described in Subsection (13)(a)(i).
(14) "Certified service provider" means an agent certified:
(a) by the governing board of the agreement in accordance with Section 59-12-102.1; and
(b) to perform all of a seller's sales and use tax functions for an agreement sales and use tax other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's own purchases.
(15) (a) Subject to Subsection (15)(b), "clothing" means all human wearing apparel suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "clothing"; and
(ii) that are consistent with the list of items that constitute "clothing" under the agreement.
(16) "Coal-to-liquid" means the process of converting coal into a liquid synthetic fuel.
(17) "Commercial use" means the use of gas, electricity, heat, coal, fuel oil, or other fuels that does not constitute industrial use under Subsection (42) or residential use under Subsection (80).
(18) (a) "Common carrier" means a person engaged in or transacting the business of transporting passengers, freight, merchandise, or other property for hire within this state.
(b) (i) "Common carrier" does not include a person who, at the time the person is traveling to or from that person's place of employment, transports a passenger to or from the passenger's place of employment.
(ii) For purposes of Subsection (18)(b)(i), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining what constitutes a person's place of employment.
(19) "Component part" includes:
(a) poultry, dairy, and other livestock feed, and their components;
(b) baling ties and twine used in the baling of hay and straw;
(c) fuel used for providing temperature control of orchards and commercial greenhouses doing a majority of their business in wholesale sales, and for providing power for off-highway type farm machinery; and
(d) feed, seeds, and seedlings.
(20) "Computer" means an electronic device that accepts information:
(a) (i) in digital form; or
(ii) in a form similar to digital form; and
(b) manipulates that information for a result based on a sequence of instructions.
(21) "Computer software" means a set of coded instructions designed to cause:
(a) a computer to perform a task; or
(b) automatic data processing equipment to perform a task.
(22) "Construction materials" means any tangible personal property that will be converted into real property.
(23) "Delivered electronically" means delivered to a purchaser by means other than tangible storage media.
(24) (a) "Delivery charge" means a charge:
(i) by a seller of:
(A) tangible personal property; or
(B) services; and
(ii) for preparation and delivery of the tangible personal property or services described in Subsection (24)(a)(i) to a location designated by the purchaser.
(b) "Delivery charge" includes a charge for the following:
(i) transportation;
(ii) shipping;
(iii) postage;
(iv) handling;
(v) crating; or
(vi) packing.
(25) (a) "Dental prosthesis" means the following if fabricated in a laboratory:
(i) a bridge;
(ii) a crown if that crown covers at least 75% of a tooth structure;
(iii) a denture;
(iv) an implant;
(v) an orthodontic device designed to:
(A) retain the position or spacing of teeth; and
(B) replace a missing tooth;
(vi) a partial denture; or
(vii) a device similar to Subsections (25)(a)(i) through (vi).
(b) "Dental prosthesis" does not include an appliance or device, other than a device described in Subsection (25)(a), if that appliance or device is used in orthodontic therapy to apply force to the teeth and their supporting structures to:
(i) produce changes in their relationship to each other; and
(ii) control their growth and development.
(26) "Dietary supplement" means a product, other than tobacco, that:
(a) is intended to supplement the diet;
(b) contains one or more of the following dietary ingredients:
(i) a vitamin;
(ii) a mineral;
(iii) an herb or other botanical;
(iv) an amino acid;
(v) a dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or
(vi) a concentrate, metabolite, constituent, extract, or combination of any ingredient described in Subsections (26)(b)(i) through (v);
(c) (i) except as provided in Subsection (26)(c)(ii), is intended for ingestion in:
(A) tablet form;
(B) capsule form;
(C) powder form;
(D) softgel form;
(E) gelcap form; or
(F) liquid form; or
(ii) notwithstanding Subsection (26)(c)(i), if the product is not intended for ingestion in a form described in Subsections (26)(c)(i)(A) through (F), is not represented:
(A) as conventional food; and
(B) for use as a sole item of:
(I) a meal; or
(II) the diet; and
(d) is required to be labeled as a dietary supplement:
(i) identifiable by the "Supplemental Facts" box found on the label; and
(ii) as required by 21 C.F.R. Sec. 101.36.
(27) (a) "Direct mail" means printed material delivered or distributed by United States mail or other delivery service:
(i) to:
(A) a mass audience; or
(B) addressees on a mailing list provided by a purchaser of the mailing list; and
(ii) if the cost of the printed material is not billed directly to the recipients.
(b) "Direct mail" includes tangible personal property supplied directly or indirectly by a purchaser to a seller of direct mail for inclusion in a package containing the printed material.
(c) "Direct mail" does not include multiple items of printed material delivered to a single address.
(28) (a) "Disposable home medical equipment or supplies" means medical equipment or supplies that:
(i) cannot withstand repeated use; and
(ii) are purchased by, for, or on behalf of a person other than:
(A) a health care facility as defined in Section 26-21-2;
(B) a health care provider as defined in Section 78-14-3;
(C) an office of a health care provider described in Subsection (28)(a)(ii)(B); or
(D) a person similar to a person described in Subsections (28)(a)(ii)(A) through (C).
(b) "Disposable home medical equipment or supplies" does not include:
(i) a drug;
(ii) durable medical equipment;
(iii) a hearing aid;
(iv) a hearing aid accessory;
(v) mobility enhancing equipment; or
(vi) tangible personal property used to correct impaired vision, including:
(A) eyeglasses; or
(B) contact lenses.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes medical equipment or supplies.
(29) (a) "Drug" means a compound, substance, or preparation, or a component of a compound, substance, or preparation that is:
(i) recognized in:
(A) the official United States Pharmacopoeia;
(B) the official Homeopathic Pharmacopoeia of the United States;
(C) the official National Formulary; or
(D) a supplement to a publication listed in Subsections (29)(a)(i)(A) through (C);
(ii) intended for use in the:
(A) diagnosis of disease;
(B) cure of disease;
(C) mitigation of disease;
(D) treatment of disease; or
(E) prevention of disease; or
(iii) intended to affect:
(A) the structure of the body; or
(B) any function of the body.
(b) "Drug" does not include:
(i) food and food ingredients;
(ii) a dietary supplement;
(iii) an alcoholic beverage; or
(iv) a prosthetic device.
(30) (a) Except as provided in Subsection (30)(c), "durable medical equipment" means equipment that:
(i) can withstand repeated use;
(ii) is primarily and customarily used to serve a medical purpose;
(iii) generally is not useful to a person in the absence of illness or injury; and
(iv) is not worn in or on the body.
(b) "Durable medical equipment" includes parts used in the repair or replacement of the equipment described in Subsection (30)(a).
(c) Notwithstanding Subsection (30)(a), "durable medical equipment" does not include mobility enhancing equipment.
(31) "Electronic" means:
(a) relating to technology; and
(b) having:
(i) electrical capabilities;
(ii) digital capabilities;
(iii) magnetic capabilities;
(iv) wireless capabilities;
(v) optical capabilities;
(vi) electromagnetic capabilities; or
(vii) capabilities similar to Subsections (31)(b)(i) through (vi).
(32) "Employee" is as defined in Section 59-10-401.
(33) "Fixed guideway" means a public transit facility that uses and occupies:
(a) rail for the use of public transit; or
(b) a separate right-of-way for the use of public transit.
(34) (a) "Food and food ingredients" means substances:
(i) regardless of whether the substances are in:
(A) liquid form;
(B) concentrated form;
(C) solid form;
(D) frozen form;
(E) dried form; or
(F) dehydrated form; and
(ii) that are:
(A) sold for:
(I) ingestion by humans; or
(II) chewing by humans; and
(B) consumed for the substance's:
(I) taste; or
(II) nutritional value.
(b) "Food and food ingredients" includes an item described in Subsection (66)(b)(iii).
(c) "Food and food ingredients" does not include:
(i) an alcoholic beverage;
(ii) tobacco; or
(iii) prepared food.
(35) (a) "Fundraising sales" means sales:
(i) (A) made by a school; or
(B) made by a school student;
(ii) that are for the purpose of raising funds for the school to purchase equipment, materials, or provide transportation; and
(iii) that are part of an officially sanctioned school activity.
(b) For purposes of Subsection (35)(a)(iii), "officially sanctioned school activity" means a school activity:
(i) that is conducted in accordance with a formal policy adopted by the school or school district governing the authorization and supervision of fundraising activities;
(ii) that does not directly or indirectly compensate an individual teacher or other educational personnel by direct payment, commissions, or payment in kind; and
(iii) the net or gross revenues from which are deposited in a dedicated account controlled by the school or school district.
(36) "Geothermal energy" means energy contained in heat that continuously flows outward from the earth that is used as the sole source of energy to produce electricity.
(37) "Governing board of the agreement" means the governing board of the agreement that is:
(a) authorized to administer the agreement; and
(b) established in accordance with the agreement.
(38) (a) For purposes of Subsection 59-12-104(41), "governmental entity" means:
(i) the executive branch of the state, including all departments, institutions, boards, divisions, bureaus, offices, commissions, and committees;
(ii) the judicial branch of the state, including the courts, the Judicial Council, the Office of the Court Administrator, and similar administrative units in the judicial branch;
(iii) the legislative branch of the state, including the House of Representatives, the Senate, the Legislative Printing Office, the Office of Legislative Research and General Counsel, the Office of the Legislative Auditor General, and the Office of the Legislative Fiscal Analyst;
(iv) the National Guard;
(v) an independent entity as defined in Section 63E-1-102; or
(vi) a political subdivision as defined in Section 17B-1-102.
(b) "Governmental entity" does not include the state systems of public and higher education, including:
(i) a college campus of the Utah College of Applied Technology;
(ii) a school;
(iii) the State Board of Education;
(iv) the State Board of Regents; or
(v) a state institution of higher education as defined in Section 53B-3-102.
(39) (a) "Hearing aid" means:
(i) an instrument or device having an electronic component that is designed to:
(A) (I) improve impaired human hearing; or
(II) correct impaired human hearing; and
(B) (I) be worn in the human ear; or
(II) affixed behind the human ear;
(ii) an instrument or device that is surgically implanted into the cochlea; or
(iii) a telephone amplifying device.
(b) "Hearing aid" does not include:
(i) except as provided in Subsection (39)(a)(i)(B) or (39)(a)(ii), an instrument or device having an electronic component that is designed to be worn on the body;
(ii) except as provided in Subsection (39)(a)(iii), an assistive listening device or system designed to be used by one individual, including:
(A) a personal amplifying system;
(B) a personal FM system;
(C) a television listening system; or
(D) a device or system similar to a device or system described in Subsections (39)(b)(ii)(A) through (C); or
(iii) an assistive listening device or system designed to be used by more than one individual, including:
(A) a device or system installed in:
(I) an auditorium;
(II) a church;
(III) a conference room;
(IV) a synagogue; or
(V) a theater; or
(B) a device or system similar to a device or system described in Subsections (39)(b)(iii)(A)(I) through (V).
(40) (a) "Hearing aid accessory" means a hearing aid:
(i) component;
(ii) attachment; or
(iii) accessory.
(b) "Hearing aid accessory" includes:
(i) a hearing aid neck loop;
(ii) a hearing aid cord;
(iii) a hearing aid ear mold;
(iv) hearing aid tubing;
(v) a hearing aid ear hook; or
(vi) a hearing aid remote control.
(c) "Hearing aid accessory" does not include:
(i) a component, attachment, or accessory designed to be used only with an:
(A) instrument or device described in Subsection (39)(b)(i); or
(B) assistive listening device or system described in Subsection (39)(b)(ii) or (iii); or
(ii) a hearing aid battery.
(41) "Hydroelectric energy" means water used as the sole source of energy to produce electricity.
(42) "Industrial use" means the use of natural gas, electricity, heat, coal, fuel oil, or other fuels:
(a) in mining or extraction of minerals;
(b) in agricultural operations to produce an agricultural product up to the time of harvest or placing the agricultural product into a storage facility, including:
(i) commercial greenhouses;
(ii) irrigation pumps;
(iii) farm machinery;
(iv) implements of husbandry as defined in Subsection 41-1a-102(23) that are not registered under Title 41, Chapter 1a, Part 2, Registration; and
(v) other farming activities;
(c) in manufacturing tangible personal property at an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(d) by a scrap recycler if:
(i) from a fixed location, the scrap recycler utilizes machinery or equipment to process one or more of the following items into prepared grades of processed materials for use in new products:
(A) iron;
(B) steel;
(C) nonferrous metal;
(D) paper;
(E) glass;
(F) plastic;
(G) textile; or
(H) rubber; and
(ii) the new products under Subsection (42)(d)(i) would otherwise be made with nonrecycled materials; or
(e) in producing a form of energy or steam described in Subsection 54-2-1(2)(a) by a cogeneration facility as defined in Section 54-2-1.
(43) (a) Except as provided in Subsection (43)(b), "installation charge" means a charge for installing tangible personal property.
(b) Notwithstanding Subsection (43)(a), "installation charge" does not include a charge for repairs or renovations of tangible personal property.
(44) (a) "Lease" or "rental" means a transfer of possession or control of tangible personal property for:
(i) (A) a fixed term; or
(B) an indeterminate term; and
(ii) consideration.
(b) "Lease" or "rental" includes an agreement covering a motor vehicle and trailer if the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in Section 7701(h)(1), Internal Revenue Code.
(c) "Lease" or "rental" does not include:
(i) a transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;
(ii) a transfer of possession or control of property under an agreement that requires the transfer of title:
(A) upon completion of required payments; and
(B) if the payment of an option price does not exceed the greater of:
(I) $100; or
(II) 1% of the total required payments; or
(iii) providing tangible personal property along with an operator for a fixed period of time or an indeterminate period of time if the operator is necessary for equipment to perform as designed.
(d) For purposes of Subsection (44)(c)(iii), an operator is necessary for equipment to perform as designed if the operator’s duties exceed the:
(i) set-up of tangible personal property;
(ii) maintenance of tangible personal property; or
(iii) inspection of tangible personal property.
(45) "Load and leave" means delivery to a purchaser by use of a tangible storage media if the tangible storage media is not physically transferred to the purchaser.
(46) "Local taxing jurisdiction" means a:
(a) county that is authorized to impose an agreement sales and use tax;
(b) city that is authorized to impose an agreement sales and use tax; or
(c) town that is authorized to impose an agreement sales and use tax.
(47) "Manufactured home" is as defined in Section 58-56-3.
(48) For purposes of Section 59-12-104, "manufacturing facility" means:
(a) an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(b) a scrap recycler if:
(i) from a fixed location, the scrap recycler utilizes machinery or equipment to process one or more of the following items into prepared grades of processed materials for use in new products:
(A) iron;
(B) steel;
(C) nonferrous metal;
(D) paper;
(E) glass;
(F) plastic;
(G) textile; or
(H) rubber; and
(ii) the new products under Subsection (48)(b)(i) would otherwise be made with nonrecycled materials; or
(c) a cogeneration facility as defined in Section 54-2-1.
(49) "Member of the immediate family of the producer" means a person who is related to a producer described in Subsection 59-12-104(20)(a) as a:
(a) child or stepchild, regardless of whether the child or stepchild is:
(i) an adopted child or adopted stepchild; or
(ii) a foster child or foster stepchild;
(b) grandchild or stepgrandchild;
(c) grandparent or stepgrandparent;
(d) nephew or stepnephew;
(e) niece or stepniece;
(f) parent or stepparent;
(g) sibling or stepsibling;
(h) spouse;
(i) person who is the spouse of a person described in Subsections (49)(a) through (g); or
(j) person similar to a person described in Subsections (49)(a) through (i) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(50) "Mobile home" is as defined in Section 58-56-3.
(51) "Mobile telecommunications service" is as defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
(52) (a) Except as provided in Subsection (52)(c), "mobility enhancing equipment" means equipment that is:
(i) primarily and customarily used to provide or increase the ability to move from one place to another;
(ii) appropriate for use in a:
(A) home; or
(B) motor vehicle; and
(iii) not generally used by persons with normal mobility.
(b) "Mobility enhancing equipment" includes parts used in the repair or replacement of the equipment described in Subsection (52)(a).
(c) Notwithstanding Subsection (52)(a), "mobility enhancing equipment" does not include:
(i) a motor vehicle;
(ii) equipment on a motor vehicle if that equipment is normally provided by the motor vehicle manufacturer;
(iii) durable medical equipment; or
(iv) a prosthetic device.
(53) "Model 1 seller" means a seller that has selected a certified service provider as the seller's agent to perform all of the seller’s sales and use tax functions for agreement sales and use taxes other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's own purchases.
(54) "Model 2 seller" means a seller that:
(a) except as provided in Subsection (54)(b), has selected a certified automated system to perform the seller's sales tax functions for agreement sales and use taxes; and
(b) notwithstanding Subsection (54)(a), retains responsibility for remitting all of the sales tax:
(i) collected by the seller; and
(ii) to the appropriate local taxing jurisdiction.
(55) (a) Subject to Subsection (55)(b), "model 3 seller" means a seller that has:
(i) sales in at least five states that are members of the agreement;
(ii) total annual sales revenues of at least $500,000,000;
(iii) a proprietary system that calculates the amount of tax:
(A) for an agreement sales and use tax; and
(B) due to each local taxing jurisdiction; and
(iv) entered into a performance agreement with the governing board of the agreement.
(b) For purposes of Subsection (55)(a), "model 3 seller" includes an affiliated group of sellers using the same proprietary system.
(56) "Modular home" means a modular unit as defined in Section 58-56-3.
(57) "Motor vehicle" is as defined in Section 41-1a-102.
(58) "Oil shale" means a group of fine black to dark brown shales containing bituminous material that yields petroleum upon distillation.
(59) (a) "Other fuels" means products that burn independently to produce heat or energy.
(b) "Other fuels" includes oxygen when it is used in the manufacturing of tangible personal property.
(60) "Pawnbroker" is as defined in Section 13-32a-102.
(61) "Pawn transaction" is as defined in Section 13-32a-102.
(62) (a) "Permanently attached to real property" means that for tangible personal property attached to real property:
(i) the attachment of the tangible personal property to the real property:
(A) is essential to the use of the tangible personal property; and
(B) suggests that the tangible personal property will remain attached to the real property in the same place over the useful life of the tangible personal property; or
(ii) if the tangible personal property is detached from the real property, the detachment would:
(A) cause substantial damage to the tangible personal property; or
(B) require substantial alteration or repair of the real property to which the tangible personal property is attached.
(b) "Permanently attached to real property" includes:
(i) the attachment of an accessory to the tangible personal property if the accessory is:
(A) essential to the operation of the tangible personal property; and
(B) attached only to facilitate the operation of the tangible personal property;
(ii) a temporary detachment of tangible personal property from real property for a repair or renovation if the repair or renovation is performed where the tangible personal property and real property are located; or
(iii) an attachment of the following tangible personal property to real property, regardless of whether the attachment to real property is only through a line that supplies water, electricity, gas, telephone, cable, or supplies a similar item as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(A) property attached to oil, gas, or water pipelines, other than the property listed in Subsection (62)(c)(iii);
(B) a hot water heater;
(C) a water softener system; or
(D) a water filtration system, other than a water filtration system manufactured as part of a refrigerator.
(c) "Permanently attached to real property" does not include:
(i) the attachment of portable or movable tangible personal property to real property if that portable or movable tangible personal property is attached to real property only for:
(A) convenience;
(B) stability; or
(C) for an obvious temporary purpose;
(ii) the detachment of tangible personal property from real property other than the detachment described in Subsection (62)(b)(ii); or
(iii) an attachment of the following tangible personal property to real property if the attachment to real property is only through a line that supplies water, electricity, gas, telephone, cable, or supplies a similar item as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(A) a refrigerator;
(B) a washer;
(C) a dryer;
(D) a stove;
(E) a television;
(F) a computer;
(G) a telephone; or
(H) tangible personal property similar to Subsections (62)(c)(iii)(A) through (G) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(63) "Person" includes any individual, firm, partnership, joint venture, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any county, city, municipality, district, or other local governmental entity of the state, or any group or combination acting as a unit.
(64) "Place of primary use":
(a) for telephone service other than mobile telecommunications service, means the street address representative of where the purchaser's use of the telephone service primarily occurs, which shall be:
(i) the residential street address of the purchaser; or
(ii) the primary business street address of the purchaser; or
(b) for mobile telecommunications service, is as defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
(65) "Postproduction" means an activity related to the finishing or duplication of a medium described in Subsection 59-12-104(56)(a).
(66) (a) "Prepared food" means:
(i) food:
(A) sold in a heated state; or
(B) heated by a seller;
(ii) two or more food ingredients mixed or combined by the seller for sale as a single item; or
(iii) except as provided in Subsection (66)(c), food sold with an eating utensil provided by the seller, including a:
(A) plate;
(B) knife;
(C) fork;
(D) spoon;
(E) glass;
(F) cup;
(G) napkin; or
(H) straw.
(b) "Prepared food" does not include:
(i) food that a seller only:
(A) cuts;
(B) repackages; or
(C) pasteurizes; or
(ii) (A) the following:
(I) raw egg;
(II) raw fish;
(III) raw meat;
(IV) raw poultry; or
(V) a food containing an item described in Subsections (66)(b)(ii)(A)(I) through (IV); and
(B) if the Food and Drug Administration recommends in Chapter 3, Part 401.11 of the Food and Drug Administration's Food Code that a consumer cook the items described in Subsection (66)(b)(ii)(A) to prevent food borne illness; or
(iii) the following if sold without eating utensils provided by the seller:
(A) food and food ingredients sold by a seller if the seller's proper primary classification under the 2002 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget, is manufacturing in Sector 311, Food Manufacturing, except for Subsector 3118, Bakeries and Tortilla Manufacturing;
(B) food and food ingredients sold in an unheated state:
(I) by weight or volume; and
(II) as a single item; or
(C) a bakery item, including:
(I) a bagel;
(II) a bar;
(III) a biscuit;
(IV) bread;
(V) a bun;
(VI) a cake;
(VII) a cookie;
(VIII) a croissant;
(IX) a danish;
(X) a donut;
(XI) a muffin;
(XII) a pastry;
(XIII) a pie;
(XIV) a roll;
(XV) a tart;
(XVI) a torte; or
(XVII) a tortilla.
(c) Notwithstanding Subsection (66)(a)(iii), an eating utensil provided by the seller does not include the following used to transport the food:
(i) a container; or
(ii) packaging.
(67) "Prescription" means an order, formula, or recipe that is issued:
(a) (i) orally;
(ii) in writing;
(iii) electronically; or
(iv) by any other manner of transmission; and
(b) by a licensed practitioner authorized by the laws of a state.
(68) (a) Except as provided in Subsection (68)(b)(ii) or (iii), "prewritten computer software" means computer software that is not designed and developed:
(i) by the author or other creator of the computer software; and
(ii) to the specifications of a specific purchaser.
(b) "Prewritten computer software" includes:
(i) a prewritten upgrade to computer software if the prewritten upgrade to the computer software is not designed and developed:
(A) by the author or other creator of the computer software; and
(B) to the specifications of a specific purchaser;
(ii) notwithstanding Subsection (68)(a), computer software designed and developed by the author or other creator of the computer software to the specifications of a specific purchaser if the computer software is sold to a person other than the purchaser; or
(iii) notwithstanding Subsection (68)(a) and except as provided in Subsection (68)(c), prewritten computer software or a prewritten portion of prewritten computer software:
(A) that is modified or enhanced to any degree; and
(B) if the modification or enhancement described in Subsection (68)(b)(iii)(A) is designed and developed to the specifications of a specific purchaser.
(c) Notwithstanding Subsection (68)(b)(iii), "prewritten computer software" does not include a modification or enhancement described in Subsection (68)(b)(iii) if the charges for the modification or enhancement are:
(i) reasonable; and
(ii) separately stated on the invoice or other statement of price provided to the purchaser.
(69) (a) "Prosthetic device" means a device that is worn on or in the body to:
(i) artificially replace a missing portion of the body;
(ii) prevent or correct a physical deformity or physical malfunction; or
(iii) support a weak or deformed portion of the body.
(b) "Prosthetic device" includes:
(i) parts used in the repairs or renovation of a prosthetic device;
(ii) replacement parts for a prosthetic device; or
(iii) a dental prosthesis.
(c) "Prosthetic device" does not include:
(i) corrective eyeglasses;
(ii) contact lenses; or
(iii) hearing aids.
(70) (a) "Protective equipment" means an item:
(i) for human wear; and
(ii) that is:
(A) designed as protection:
(I) to the wearer against injury or disease; or
(II) against damage or injury of other persons or property; and
(B) not suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "protective equipment"; and
(ii) that are consistent with the list of items that constitute "protective equipment" under the agreement.
(71) (a) For purposes of Subsection 59-12-104(41), "publication" means any written or printed matter, other than a photocopy:
(i) regardless of:
(A) characteristics;
(B) copyright;
(C) form;
(D) format;
(E) method of reproduction; or
(F) source; and
(ii) made available in printed or electronic format.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "photocopy."
(72) (a) "Purchase price" and "sales price" mean the total amount of consideration:
(i) valued in money; and
(ii) for which tangible personal property or services are:
(A) sold;
(B) leased; or
(C) rented.
(b) "Purchase price" and "sales price" include:
(i) the seller’s cost of the tangible personal property or services sold;
(ii) expenses of the seller, including:
(A) the cost of materials used;
(B) a labor cost;
(C) a service cost;
(D) interest;
(E) a loss;
(F) the cost of transportation to the seller; or
(G) a tax imposed on the seller; or
(iii) a charge by the seller for any service necessary to complete the sale.
(c) "Purchase price" and "sales price" do not include:
(i) a discount:
(A) in a form including:
(I) cash;
(II) term; or
(III) coupon;
(B) that is allowed by a seller;
(C) taken by a purchaser on a sale; and
(D) that is not reimbursed by a third party; or
(ii) the following if separately stated on an invoice, bill of sale, or similar document provided to the purchaser:
(A) the amount of a trade-in;
(B) the following from credit extended on the sale of tangible personal property or services:
(I) interest charges;
(II) financing charges; or
(III) carrying charges;
(C) a tax or fee legally imposed directly on the consumer;
(D) a delivery charge; or
(E) an installation charge.
(73) "Purchaser" means a person to whom:
(a) a sale of tangible personal property is made; or
(b) a service is furnished.
(74) "Regularly rented" means:
(a) rented to a guest for value three or more times during a calendar year; or
(b) advertised or held out to the public as a place that is regularly rented to guests for value.
(75) "Renewable energy" means:
(a) biomass energy;
(b) hydroelectric energy;
(c) geothermal energy;
(d) solar energy; or
(e) wind energy.
(76) (a) "Renewable energy production facility" means a facility that:
(i) uses renewable energy to produce electricity; and
(ii) has a production capacity of 20 kilowatts or greater.
(b) A facility is a renewable energy production facility regardless of whether the facility is:
(i) connected to an electric grid; or
(ii) located on the premises of an electricity consumer.
(77) "Rental" is as defined in Subsection (44).
(78) "Repairs or renovations of tangible personal property" means:
(a) a repair or renovation of tangible personal property that is not permanently attached to real property; or
(b) attaching tangible personal property to other tangible personal property if the other tangible personal property to which the tangible personal property is attached is not permanently attached to real property.
(79) "Research and development" means the process of inquiry or experimentation aimed at the discovery of facts, devices, technologies, or applications and the process of preparing those devices, technologies, or applications for marketing.
(80) "Residential use" means the use in or around a home, apartment building, sleeping quarters, and similar facilities or accommodations.
(81) "Retail sale" or "sale at retail" means a sale, lease, or rental for a purpose other than:
(a) resale;
(b) sublease; or
(c) subrent.
(82) (a) "Retailer" means any person engaged in a regularly organized business in tangible personal property or any other taxable transaction under Subsection 59-12-103(1), and who is selling to the user or consumer and not for resale.
(b) "Retailer" includes commission merchants, auctioneers, and any person regularly engaged in the business of selling to users or consumers within the state.
(83) (a) "Sale" means any transfer of title, exchange, or barter, conditional or otherwise, in any manner, of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), for consideration.
(b) "Sale" includes:
(i) installment and credit sales;
(ii) any closed transaction constituting a sale;
(iii) any sale of electrical energy, gas, services, or entertainment taxable under this chapter;
(iv) any transaction if the possession of property is transferred but the seller retains the title as security for the payment of the price; and
(v) any transaction under which right to possession, operation, or use of any article of tangible personal property is granted under a lease or contract and the transfer of possession would be taxable if an outright sale were made.
(84) "Sale at retail" is as defined in Subsection (81).
(85) "Sale-leaseback transaction" means a transaction by which title to tangible personal property that is subject to a tax under this chapter is transferred:
(a) by a purchaser-lessee;
(b) to a lessor;
(c) for consideration; and
(d) if:
(i) the purchaser-lessee paid sales and use tax on the purchaser-lessee's initial purchase of the tangible personal property;
(ii) the sale of the tangible personal property to the lessor is intended as a form of financing:
(A) for the property; and
(B) to the purchaser-lessee; and
(iii) in accordance with generally accepted accounting principles, the purchaser-lessee is required to:
(A) capitalize the property for financial reporting purposes; and
(B) account for the lease payments as payments made under a financing arrangement.
(86) "Sales price" is as defined in Subsection (72).
(87) (a) "Sales relating to schools" means the following sales by, amounts paid to, or amounts charged by a school:
(i) sales that are directly related to the school's educational functions or activities including:
(A) the sale of:
(I) textbooks;
(II) textbook fees;
(III) laboratory fees;
(IV) laboratory supplies; or
(V) safety equipment;
(B) the sale of a uniform, protective equipment, or sports or recreational equipment that:
(I) a student is specifically required to wear as a condition of participation in a school-related event or school-related activity; and
(II) is not readily adaptable to general or continued usage to the extent that it takes the place of ordinary clothing;
(C) sales of the following if the net or gross revenues generated by the sales are deposited into a school district fund or school fund dedicated to school meals:
(I) food and food ingredients; or
(II) prepared food; or
(D) transportation charges for official school activities; or
(ii) amounts paid to or amounts charged by a school for admission to a school-related event or school-related activity.
(b) "Sales relating to schools" does not include:
(i) bookstore sales of items that are not educational materials or supplies;
(ii) except as provided in Subsection (87)(a)(i)(B):
(A) clothing;
(B) clothing accessories or equipment;
(C) protective equipment; or
(D) sports or recreational equipment; or
(iii) amounts paid to or amounts charged by a school for admission to a school-related event or school-related activity if the amounts paid or charged are passed through to a person:
(A) other than a:
(I) school;
(II) nonprofit organization authorized by a school board or a governing body of a private school to organize and direct a competitive secondary school activity; or
(III) nonprofit association authorized by a school board or a governing body of a private school to organize and direct a competitive secondary school activity; and
(B) that is required to collect sales and use taxes under this chapter.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining the term "passed through."
(88) For purposes of this section and Section 59-12-104, "school":
(a) means:
(i) an elementary school or a secondary school that:
(A) is a:
(I) public school; or
(II) private school; and
(B) provides instruction for one or more grades kindergarten through 12; or
(ii) a public school district; and
(b) includes the Electronic High School as defined in Section 53A-15-1002.
(89) "Seller" means a person that makes a sale, lease, or rental of:
(a) tangible personal property; or
(b) a service.
(90) (a) "Semiconductor fabricating, processing, research, or development materials" means tangible personal property:
(i) used primarily in the process of:
(A) (I) manufacturing a semiconductor;
(II) fabricating a semiconductor; or
(III) research or development of a:
(Aa) semiconductor; or
(Bb) semiconductor manufacturing process; or
(B) maintaining an environment suitable for a semiconductor; or
(ii) consumed primarily in the process of:
(A) (I) manufacturing a semiconductor;
(II) fabricating a semiconductor; or
(III) research or development of a:
(Aa) semiconductor; or
(Bb) semiconductor manufacturing process; or
(B) maintaining an environment suitable for a semiconductor.
(b) "Semiconductor fabricating, processing, research, or development materials" includes:
(i) parts used in the repairs or renovations of tangible personal property described in Subsection (90)(a); or
(ii) a chemical, catalyst, or other material used to:
(A) produce or induce in a semiconductor a:
(I) chemical change; or
(II) physical change;
(B) remove impurities from a semiconductor; or
(C) improve the marketable condition of a semiconductor.
(91) "Senior citizen center" means a facility having the primary purpose of providing services to the aged as defined in Section 62A-3-101.
(92) "Simplified electronic return" means the electronic return:
(a) described in Section 318(C) of the agreement; and
(b) approved by the governing board of the agreement.
(93) "Solar energy" means the sun used as the sole source of energy for producing electricity.
(94) (a) "Sports or recreational equipment" means an item:
(i) designed for human use; and
(ii) that is:
(A) worn in conjunction with:
(I) an athletic activity; or
(II) a recreational activity; and
(B) not suitable for general use.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules:
(i) listing the items that constitute "sports or recreational equipment"; and
(ii) that are consistent with the list of items that constitute "sports or recreational equipment" under the agreement.
(95) "State" means the state of Utah, its departments, and agencies.
(96) "Storage" means any keeping or retention of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), in this state for any purpose except sale in the regular course of business.
(97) (a) "Tangible personal property" means personal property that:
(i) may be:
(A) seen;
(B) weighed;
(C) measured;
(D) felt; or
(E) touched; or
(ii) is in any manner perceptible to the senses.
(b) "Tangible personal property" includes:
(i) electricity;
(ii) water;
(iii) gas;
(iv) steam; or
(v) prewritten computer software.
(98) "Tar sands" means impregnated sands that yield mixtures of liquid hydrocarbon and require further processing other than mechanical blending before becoming finished petroleum products.
(99) (a) "Telecommunications enabling or facilitating equipment, machinery, or software" means an item listed in Subsection (99)(b) if that item is purchased or leased primarily to enable or facilitate one or more of the following to function:
(i) telecommunications switching or routing equipment, machinery, or software; or
(ii) telecommunications transmission equipment, machinery, or software.
(b) The following apply to Subsection (99)(a):
(i) a pole;
(ii) software;
(iii) a supplementary power supply;
(iv) temperature or environmental equipment or machinery;
(v) test equipment;
(vi) a tower; or
(vii) equipment, machinery, or software that functions similarly to an item listed in Subsections (99)(b)(i) through (vi) as determined by the commission by rule made in accordance with Subsection (99)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (99)(b)(i) through (vi).
(100) "Telecommunications equipment, machinery, or software required for 911 service" means equipment, machinery, or software that is required to comply with 47 C.F.R. Sec. 20.18.
(101) "Telecommunications maintenance or repair equipment, machinery, or software" means equipment, machinery, or software purchased or leased primarily to maintain or repair one or more of the following, regardless of whether the equipment, machinery, or software is purchased or leased as a spare part or as an upgrade or modification to one or more of the following:
(a) telecommunications enabling or facilitating equipment, machinery, or software;
(b) telecommunications switching or routing equipment, machinery, or software; or
(c) telecommunications transmission equipment, machinery, or software.
(102) (a) "Telecommunications switching or routing equipment, machinery, or software" means an item listed in Subsection (102)(b) if that item is purchased or leased primarily for switching or routing:
(i) voice communications;
(ii) data communications; or
(iii) telephone service.
(b) The following apply to Subsection (102)(a):
(i) a bridge;
(ii) a computer;
(iii) a cross connect;
(iv) a modem;
(v) a multiplexer;
(vi) plug in circuitry;
(vii) a router;
(viii) software;
(ix) a switch; or
(x) equipment, machinery, or software that functions similarly to an item listed in Subsections (102)(b)(i) through (ix) as determined by the commission by rule made in accordance with Subsection (102)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (102)(b)(i) through (ix).
(103) (a) "Telecommunications transmission equipment, machinery, or software" means an item listed in Subsection (103)(b) if that item is purchased or leased primarily for sending, receiving, or transporting:
(i) voice communications;
(ii) data communications; or
(iii) telephone service.
(b) The following apply to Subsection (103)(a):
(i) an amplifier;
(ii) a cable;
(iii) a closure;
(iv) a conduit;
(v) a controller;
(vi) a duplexer;
(vii) a filter;
(viii) an input device;
(ix) an input/output device;
(x) an insulator;
(xi) microwave machinery or equipment;
(xii) an oscillator;
(xiii) an output device;
(xiv) a pedestal;
(xv) a power converter;
(xvi) a power supply;
(xvii) a radio channel;
(xviii) a radio receiver;
(xix) a radio transmitter;
(xx) a repeater;
(xxi) software;
(xxii) a terminal;
(xxiii) a timing unit;
(xxiv) a transformer;
(xxv) a wire; or
(xxvi) equipment, machinery, or software that functions similarly to an item listed in Subsections (103)(b)(i) through (xxv) as determined by the commission by rule made in accordance with Subsection (103)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define what constitutes equipment, machinery, or software that functions similarly to an item listed in Subsections (103)(b)(i) through (xxv).
(104) (a) "Telephone service" means a two-way transmission:
(i) by:
(A) wire;
(B) radio;
(C) lightwave; or
(D) other electromagnetic means; and
(ii) of one or more of the following:
(A) a sign;
(B) a signal;
(C) writing;
(D) an image;
(E) sound;
(F) a message;
(G) data; or
(H) other information of any nature.
(b) "Telephone service" includes:
(i) mobile telecommunications service;
(ii) private communications service; or
(iii) automated digital telephone answering service.
(c) "Telephone service" does not include a service or a transaction that a state or a political subdivision of a state is prohibited from taxing as of July 1, 2001, under the Internet Tax Freedom Act, Pub. L. No. 105-277.
(105) Notwithstanding where a call is billed or paid, "telephone service address" means:
(a) if the location described in this Subsection (105)(a) is known, the location of the telephone service equipment:
(i) to which a call is charged; and
(ii) from which the call originates or terminates;
(b) if the location described in Subsection (105)(a) is not known but the location described in this Subsection (105)(b) is known, the location of the origination point of the signal of the telephone service first identified by:
(i) the telecommunications system of the seller; or
(ii) if the system used to transport the signal is not that of the seller, information received by the seller from its service provider; or
(c) if the locations described in Subsection (105)(a) or (b) are not known, the location of a purchaser's primary place of use.
(106) (a) "Telephone service provider" means a person that:
(i) owns, controls, operates, or manages a telephone service; and
(ii) engages in an activity described in Subsection (106)(a)(i) for the shared use with or resale to any person of the telephone service.
(b) A person described in Subsection (106)(a) is a telephone service provider whether or not the Public Service Commission of Utah regulates:
(i) that person; or
(ii) the telephone service that the person owns, controls, operates, or manages.
(107) "Tobacco" means:
(a) a cigarette;
(b) a cigar;
(c) chewing tobacco;
(d) pipe tobacco; or
(e) any other item that contains tobacco.
(108) "Unassisted amusement device" means an amusement device, skill device, or ride device that is started and stopped by the purchaser or renter of the right to use or operate the amusement device, skill device, or ride device.
(109) (a) "Use" means the exercise of any right or power over tangible personal property under Subsection 59-12-103(1), incident to the ownership or the leasing of that property, item, or service.
(b) "Use" does not include the sale, display, demonstration, or trial of that property in the regular course of business and held for resale.
(110) (a) Subject to Subsection (110)(b), "vehicle" means the following that are required to be titled, registered, or titled and registered:
(i) an aircraft as defined in Section 72-10-102;
(ii) a vehicle as defined in Section 41-1a-102;
(iii) an off-highway vehicle as defined in Section 41-22-2; or
(iv) a vessel as defined in Section 41-1a-102.
(b) For purposes of Subsection 59-12-104(33) only, "vehicle" includes:
(i) a vehicle described in Subsection (110)(a); or
(ii) (A) a locomotive;
(B) a freight car;
(C) railroad work equipment; or
(D) other railroad rolling stock.
(111) "Vehicle dealer" means a person engaged in the business of buying, selling, or exchanging a vehicle as defined in Subsection (110).
(112) (a) Except as provided in Subsection (112)(b), "waste energy facility" means a facility that generates electricity:
(i) using as the primary source of energy waste materials that would be placed in a landfill or refuse pit if it were not used to generate electricity, including:
(A) tires;
(B) waste coal; or
(C) oil shale; and
(ii) in amounts greater than actually required for the operation of the facility.
(b) "Waste energy facility" does not include a facility that incinerates:
(i) municipal solid waste;
(ii) hospital waste as defined in 40 C.F.R. 60.51c; or
(iii) medical/infectious waste as defined in 40 C.F.R. 60.51c.
(113) "Watercraft" means a vessel as defined in Section 73-18-2.
(114) "Wind energy" means wind used as the sole source of energy to produce electricity.
(115) "ZIP Code" means a Zoning Improvement Plan Code assigned to a geographic location by the United States Postal Service.
Section 1027. Section 59-12-104 (Superseded 01/01/08) is amended to read:
59-12-104 (Superseded 01/01/08)
. Exemptions.The following sales and uses are exempt from the taxes imposed by this chapter:
(1) sales of aviation fuel, motor fuel, and special fuel subject to a Utah state excise tax under Chapter 13, Motor and Special Fuel Tax Act;
(2) sales to the state, its institutions, and its political subdivisions; however, this exemption does not apply to sales of:
(a) construction materials except:
(i) construction materials purchased by or on behalf of institutions of the public education system as defined in Utah Constitution Article X, Section 2, provided the construction materials are clearly identified and segregated and installed or converted to real property which is owned by institutions of the public education system; and
(ii) construction materials purchased by the state, its institutions, or its political subdivisions which are installed or converted to real property by employees of the state, its institutions, or its political subdivisions; or
(b) tangible personal property in connection with the construction, operation, maintenance, repair, or replacement of a project, as defined in Section 11-13-103, or facilities providing additional project capacity, as defined in Section 11-13-103;
(3) (a) sales of an item described in Subsection (3)(b) from a vending machine if:
(i) the proceeds of each sale do not exceed $1; and
(ii) the seller or operator of the vending machine reports an amount equal to 150% of the cost of the item described in Subsection (3)(b) as goods consumed; and
(b) Subsection (3)(a) applies to:
(i) food and food ingredients; or
(ii) prepared food;
(4) sales of the following to a commercial airline carrier for in-flight consumption:
(a) food and food ingredients;
(b) prepared food; or
(c) services related to Subsection (4)(a) or (b);
(5) sales of parts and equipment for installation in aircraft operated by common carriers in interstate or foreign commerce;
(6) sales of commercials, motion picture films, prerecorded audio program tapes or records, and prerecorded video tapes by a producer, distributor, or studio to a motion picture exhibitor, distributor, or commercial television or radio broadcaster;
(7) (a) subject to Subsection (7)(b), sales of cleaning or washing of tangible personal property if the cleaning or washing of the tangible personal property is not assisted cleaning or washing of tangible personal property;
(b) if a seller that sells at the same business location assisted cleaning or washing of tangible personal property and cleaning or washing of tangible personal property that is not assisted cleaning or washing of tangible personal property, the exemption described in Subsection (7)(a) applies if the seller separately accounts for the sales of the assisted cleaning or washing of the tangible personal property; and
(c) for purposes of Subsection (7)(b) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) governing the circumstances under which sales are at the same business location; and
(ii) establishing the procedures and requirements for a seller to separately account for sales of assisted cleaning or washing of tangible personal property;
(8) sales made to or by religious or charitable institutions in the conduct of their regular religious or charitable functions and activities, if the requirements of Section 59-12-104.1 are fulfilled;
(9) sales of a vehicle of a type required to be registered under the motor vehicle laws of this state if the vehicle is:
(a) not registered in this state; and
(b) (i) not used in this state; or
(ii) used in this state:
(A) if the vehicle is not used to conduct business, for a time period that does not exceed the longer of:
(I) 30 days in any calendar year; or
(II) the time period necessary to transport the vehicle to the borders of this state; or
(B) if the vehicle is used to conduct business, for the time period necessary to transport the vehicle to the borders of this state;
(10) (a) amounts paid for an item described in Subsection (10)(b) if:
(i) the item is intended for human use; and
(ii) (A) a prescription was issued for the item; or
(B) the item was purchased by a hospital or other medical facility; and
(b) (i) Subsection (10)(a) applies to:
(A) a drug;
(B) a syringe; or
(C) a stoma supply; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the terms:
(A) "syringe"; or
(B) "stoma supply";
(11) sales or use of property, materials, or services used in the construction of or incorporated in pollution control facilities allowed by Sections 19-2-123 through 19-2-127;
(12) (a) sales of an item described in Subsection (12)(c) served by:
(i) the following if the item described in Subsection (12)(c) is not available to the general public:
(A) a church; or
(B) a charitable institution;
(ii) an institution of higher education if:
(A) the item described in Subsection (12)(c) is not available to the general public; or
(B) the item described in Subsection (12)(c) is prepaid as part of a student meal plan offered by the institution of higher education; or
(b) sales of an item described in Subsection (12)(c) provided for a patient by:
(i) a medical facility; or
(ii) a nursing facility; and
(c) Subsections (12)(a) and (b) apply to:
(i) food and food ingredients;
(ii) prepared food; or
(iii) alcoholic beverages;
(13) (a) except as provided in Subsection (13)(b), the sale of tangible personal property by a person:
(i) regardless of the number of transactions involving the sale of that tangible personal property by that person; and
(ii) not regularly engaged in the business of selling that type of tangible personal property;
(b) this Subsection (13) does not apply if:
(i) the sale is one of a series of sales of a character to indicate that the person is regularly engaged in the business of selling that type of tangible personal property;
(ii) the person holds that person out as regularly engaged in the business of selling that type of tangible personal property;
(iii) the person sells an item of tangible personal property that the person purchased as a sale that is exempt under Subsection (25); or
(iv) the sale is of a vehicle or vessel required to be titled or registered under the laws of this state in which case the tax is based upon:
(A) the bill of sale or other written evidence of value of the vehicle or vessel being sold; or
(B) in the absence of a bill of sale or other written evidence of value, the fair market value of the vehicle or vessel being sold at the time of the sale as determined by the commission; and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules establishing the circumstances under which:
(i) a person is regularly engaged in the business of selling a type of tangible personal property;
(ii) a sale of tangible personal property is one of a series of sales of a character to indicate that a person is regularly engaged in the business of selling that type of tangible personal property; or
(iii) a person holds that person out as regularly engaged in the business of selling a type of tangible personal property;
(14) (a) except as provided in Subsection (14)(b), amounts paid or charged on or after July 1, 2006, for a purchase or lease by a manufacturing facility other than a cogeneration facility, for the following:
(i) machinery and equipment that:
(A) is used:
(I) for a manufacturing facility other than a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(47)(b):
(Aa) in the manufacturing process; and
(Bb) to manufacture an item sold as tangible personal property; or
(II) for a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(47)(b), to process an item sold as tangible personal property; and
(B) has an economic life of three or more years; and
(ii) normal operating repair or replacement parts that:
(A) have an economic life of three or more years; and
(B) are used:
(I) for a manufacturing facility in the state other than a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(47)(b), in the manufacturing process; or
(II) for a manufacturing facility in the state that is a scrap recycler described in Subsection 59-12-102(47)(b), to process an item sold as tangible personal property;
(b) (i) amounts paid or charged on or after July 1, 2005, for a purchase or lease by a manufacturing facility that is a cogeneration facility placed in service on or after May 1, 2006, for the following:
(A) machinery and equipment that:
(I) is used:
(Aa) in the manufacturing process; and
(Bb) to manufacture an item sold as tangible personal property; and
(II) has an economic life of three or more years; and
(B) normal operating repair or replacement parts that:
(I) are used in the manufacturing process in a manufacturing facility in the state; and
(II) have an economic life of three or more years; and
(ii) for amounts paid or charged on or after July 1, 2005, but on or before June 30, 2006, for a purchase or lease described in Subsection (14)(b)(i), a cogeneration facility may claim the exemption allowed by Subsection (14)(b)(i) by filing for a refund:
(A) for sales and use taxes paid under this chapter on the purchase or lease payment; and
(B) in accordance with Section 59-12-110;
(c) for purposes of this Subsection (14) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission:
(i) shall by rule define the term "establishment"; and
(ii) may by rule define what constitutes processing an item sold as tangible personal property; and
(d) on or before October 1, 1991, and every five years after October 1, 1991, the commission shall:
(i) review the exemptions described in this Subsection (14) and make recommendations to the Revenue and Taxation Interim Committee concerning whether the exemptions should be continued, modified, or repealed; and
(ii) include in its report:
(A) the cost of the exemptions;
(B) the purpose and effectiveness of the exemptions; and
(C) the benefits of the exemptions to the state;
(15) (a) sales of the following if the requirements of Subsection (15)(b) are met:
(i) tooling;
(ii) special tooling;
(iii) support equipment;
(iv) special test equipment; or
(v) parts used in the repairs or renovations of tooling or equipment described in Subsections (15)(a)(i) through (iv); and
(b) sales of tooling, equipment, or parts described in Subsection (15)(a) are exempt if:
(i) the tooling, equipment, or parts are used or consumed exclusively in the performance of any aerospace or electronics industry contract with the United States government or any subcontract under that contract; and
(ii) under the terms of the contract or subcontract described in Subsection (15)(b)(i), title to the tooling, equipment, or parts is vested in the United States government as evidenced by:
(A) a government identification tag placed on the tooling, equipment, or parts; or
(B) listing on a government-approved property record if placing a government identification tag on the tooling, equipment, or parts is impractical;
(16) sales of newspapers or newspaper subscriptions;
(17) (a) except as provided in Subsection (17)(b), tangible personal property traded in as full or part payment of the purchase price, except that for purposes of calculating sales or use tax upon vehicles not sold by a vehicle dealer, trade-ins are limited to other vehicles only, and the tax is based upon:
(i) the bill of sale or other written evidence of value of the vehicle being sold and the vehicle being traded in; or
(ii) in the absence of a bill of sale or other written evidence of value, the then existing fair market value of the vehicle being sold and the vehicle being traded in, as determined by the commission; and
(b) notwithstanding Subsection (17)(a), Subsection (17)(a) does not apply to the following items of tangible personal property traded in as full or part payment of the purchase price:
(i) money;
(ii) electricity;
(iii) water;
(iv) gas; or
(v) steam;
(18) (a) (i) except as provided in Subsection (18)(b), sales of tangible personal property used or consumed primarily and directly in farming operations, regardless of whether the tangible personal property:
(A) becomes part of real estate; or
(B) is installed by a:
(I) farmer;
(II) contractor; or
(III) subcontractor; or
(ii) sales of parts used in the repairs or renovations of tangible personal property if the tangible personal property is exempt under Subsection (18)(a)(i); and
(b) notwithstanding Subsection (18)(a), amounts paid or charged for the following tangible personal property are subject to the taxes imposed by this chapter:
(i) (A) subject to Subsection (18)(b)(i)(B), the following tangible personal property if the tangible personal property is used in a manner that is incidental to farming:
(I) machinery;
(II) equipment;
(III) materials; or
(IV) supplies; and
(B) tangible personal property that is considered to be used in a manner that is incidental to farming includes:
(I) hand tools; or
(II) maintenance and janitorial equipment and supplies;
(ii) (A) subject to Subsection (18)(b)(ii)(B), tangible personal property if the tangible personal property is used in an activity other than farming; and
(B) tangible personal property that is considered to be used in an activity other than farming includes:
(I) office equipment and supplies; or
(II) equipment and supplies used in:
(Aa) the sale or distribution of farm products;
(Bb) research; or
(Cc) transportation; or
(iii) a vehicle required to be registered by the laws of this state during the period ending two years after the date of the vehicle's purchase;
(19) sales of hay;
(20) exclusive sale during the harvest season of seasonal crops, seedling plants, or garden, farm, or other agricultural produce if the seasonal crops are, seedling plants are, or garden, farm, or other agricultural produce is sold by:
(a) the producer of the seasonal crops, seedling plants, or garden, farm, or other agricultural produce;
(b) an employee of the producer described in Subsection (20)(a); or
(c) a member of the immediate family of the producer described in Subsection (20)(a);
(21) purchases made using a coupon as defined in 7 U.S.C. Sec. 2012 that is issued under the Food Stamp Program, 7 U.S.C. Sec. 2011 et seq.;
(22) sales of nonreturnable containers, nonreturnable labels, nonreturnable bags, nonreturnable shipping cases, and nonreturnable casings to a manufacturer, processor, wholesaler, or retailer for use in packaging tangible personal property to be sold by that manufacturer, processor, wholesaler, or retailer;
(23) property stored in the state for resale;
(24) (a) purchases of property if:
(i) the property is:
(A) purchased outside of this state;
(B) brought into this state:
(I) at any time after the purchase described in Subsection (24)(a)(i)(A); and
(II) by a nonresident person who is not living or working in this state at the time of the purchase;
(C) used for the personal use or enjoyment of the nonresident person described in Subsection (24)(a)(i)(B)(II) while that nonresident person is within the state; and
(D) not used in conducting business in this state; and
(ii) for:
(A) property other than the property described in Subsection (24)(a)(ii)(B), the first use of the property for a purpose for which the property is designed occurs outside of this state;
(B) a boat, the boat is registered outside of this state; or
(C) a vehicle other than a vehicle sold to an authorized carrier, the vehicle is registered outside of this state;
(b) the exemption provided for in Subsection (24)(a) does not apply to:
(i) a lease or rental of property; or
(ii) a sale of a vehicle exempt under Subsection (33); and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (24)(a), the commission may by rule define what constitutes the following:
(i) conducting business in this state if that phrase has the same meaning in this Subsection (24) as in Subsection (66);
(ii) the first use of property if that phrase has the same meaning in this Subsection (24) as in Subsection (66); or
(iii) a purpose for which property is designed if that phrase has the same meaning in this Subsection (24) as in Subsection (66);
(25) property purchased for resale in this state, in the regular course of business, either in its original form or as an ingredient or component part of a manufactured or compounded product;
(26) property upon which a sales or use tax was paid to some other state, or one of its subdivisions, except that the state shall be paid any difference between the tax paid and the tax imposed by this part and Part 2, Local Sales and Use Tax Act, and no adjustment is allowed if the tax paid was greater than the tax imposed by this part and Part 2, Local Sales and Use Tax Act;
(27) any sale of a service described in Subsections 59-12-103(1)(b), (c), and (d) to a person for use in compounding a service taxable under the subsections;
(28) purchases made in accordance with the special supplemental nutrition program for women, infants, and children established in 42 U.S.C. Sec. 1786;
(29) beginning on July 1, 1999, through June 30, 2014, sales or leases of rolls, rollers, refractory brick, electric motors, or other replacement parts used in the furnaces, mills, or ovens of a steel mill described in SIC Code 3312 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(30) sales of a boat of a type required to be registered under Title 73, Chapter 18, State Boating Act, a boat trailer, or an outboard motor if the boat, boat trailer, or outboard motor is:
(a) not registered in this state; and
(b) (i) not used in this state; or
(ii) used in this state:
(A) if the boat, boat trailer, or outboard motor is not used to conduct business, for a time period that does not exceed the longer of:
(I) 30 days in any calendar year; or
(II) the time period necessary to transport the boat, boat trailer, or outboard motor to the borders of this state; or
(B) if the boat, boat trailer, or outboard motor is used to conduct business, for the time period necessary to transport the boat, boat trailer, or outboard motor to the borders of this state;
(31) sales of aircraft manufactured in Utah if sold for delivery and use outside Utah where a sales or use tax is not imposed, even if the title is passed in Utah;
(32) amounts paid for the purchase of telephone service for purposes of providing telephone service;
(33) sales, leases, or uses of the following:
(a) a vehicle by an authorized carrier; or
(b) tangible personal property that is installed on a vehicle:
(i) sold or leased to or used by an authorized carrier; and
(ii) before the vehicle is placed in service for the first time;
(34) (a) 45% of the sales price of any new manufactured home; and
(b) 100% of the sales price of any used manufactured home;
(35) sales relating to schools and fundraising sales;
(36) sales or rentals of durable medical equipment if:
(a) a person presents a prescription for the durable medical equipment; and
(b) the durable medical equipment is used for home use only;
(37) (a) sales to a ski resort of electricity to operate a passenger ropeway as defined in Section 72-11-102; and
(b) the commission shall by rule determine the method for calculating sales exempt under Subsection (37)(a) that are not separately metered and accounted for in utility billings;
(38) sales to a ski resort of:
(a) snowmaking equipment;
(b) ski slope grooming equipment;
(c) passenger ropeways as defined in Section 72-11-102; or
(d) parts used in the repairs or renovations of equipment or passenger ropeways described in Subsections (38)(a) through (c);
(39) sales of natural gas, electricity, heat, coal, fuel oil, or other fuels for industrial use;
(40) (a) subject to Subsection (40)(b), sales or rentals of the right to use or operate for amusement, entertainment, or recreation an unassisted amusement device as defined in Section 59-12-102;
(b) if a seller that sells or rents at the same business location the right to use or operate for amusement, entertainment, or recreation one or more unassisted amusement devices and one or more assisted amusement devices, the exemption described in Subsection (40)(a) applies if the seller separately accounts for the sales or rentals of the right to use or operate for amusement, entertainment, or recreation for the assisted amusement devices; and
(c) for purposes of Subsection (40)(b) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) governing the circumstances under which sales are at the same business location; and
(ii) establishing the procedures and requirements for a seller to separately account for the sales or rentals of the right to use or operate for amusement, entertainment, or recreation for assisted amusement devices;
(41) (a) sales of photocopies by:
(i) a governmental entity; or
(ii) an entity within the state system of public education, including:
(A) a school; or
(B) the State Board of Education; or
(b) sales of publications by a governmental entity;
(42) amounts paid for admission to an athletic event at an institution of higher education that is subject to the provisions of Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq.;
(43) sales of telephone service charged to a prepaid telephone calling card;
(44) (a) sales of:
(i) hearing aids;
(ii) hearing aid accessories; or
(iii) except as provided in Subsection (44)(b), parts used in the repairs or renovations of hearing aids or hearing aid accessories; and
(b) for purposes of this Subsection (44), notwithstanding Subsection (44)(a)(iii), "parts" does not include batteries;
(45) (a) sales made to or by:
(i) an area agency on aging; or
(ii) a senior citizen center owned by a county, city, or town; or
(b) sales made by a senior citizen center that contracts with an area agency on aging;
(46) sales or leases of semiconductor fabricating, processing, research, or development materials regardless of whether the semiconductor fabricating, processing, research, or development materials:
(a) actually come into contact with a semiconductor; or
(b) ultimately become incorporated into real property;
(47) an amount paid by or charged to a purchaser for accommodations and services described in Subsection 59-12-103(1)(i) to the extent the amount is exempt under Section 59-12-104.2;
(48) beginning on September 1, 2001, the lease or use of a vehicle issued a temporary sports event registration certificate in accordance with Section 41-3-306 for the event period specified on the temporary sports event registration certificate;
(49) sales or uses of electricity, if the sales or uses are:
(a) made under a tariff adopted by the Public Service Commission of Utah only for purchase of electricity produced from a new wind, geothermal, biomass, or solar power energy source, as designated in the tariff by the Public Service Commission of Utah; and
(b) for an amount of electricity that is:
(i) unrelated to the amount of electricity used by the person purchasing the electricity under the tariff described in Subsection (49)(a); and
(ii) equivalent to the number of kilowatthours specified in the tariff described in Subsection (49)(a) that may be purchased under the tariff described in Subsection (49)(a);
(50) sales or rentals of mobility enhancing equipment if a person presents a prescription for the mobility enhancing equipment;
(51) sales of water in a:
(a) pipe;
(b) conduit;
(c) ditch; or
(d) reservoir;
(52) sales of currency or coinage that constitute legal tender of the United States or of a foreign nation;
(53) (a) sales of an item described in Subsection (53)(b) if the item:
(i) does not constitute legal tender of any nation; and
(ii) has a gold, silver, or platinum content of 80% or more; and
(b) Subsection (53)(a) applies to a gold, silver, or platinum:
(i) ingot;
(ii) bar;
(iii) medallion; or
(iv) decorative coin;
(54) amounts paid on a sale-leaseback transaction;
(55) sales of a prosthetic device:
(a) for use on or in a human;
(b) for which a prescription is issued; and
(c) to a person that presents a prescription for the prosthetic device;
(56) (a) except as provided in Subsection (56)(b), purchases, leases, or rentals of machinery or equipment by an establishment described in Subsection (56)(c) if the machinery or equipment is primarily used in the production or postproduction of the following media for commercial distribution:
(i) a motion picture;
(ii) a television program;
(iii) a movie made for television;
(iv) a music video;
(v) a commercial;
(vi) a documentary; or
(vii) a medium similar to Subsections (56)(a)(i) through (vi) as determined by the commission by administrative rule made in accordance with Subsection (56)(d); or
(b) notwithstanding Subsection (56)(a), purchases, leases, or rentals of machinery or equipment by an establishment described in Subsection (56)(c) that is used for the production or postproduction of the following are subject to the taxes imposed by this chapter:
(i) a live musical performance;
(ii) a live news program; or
(iii) a live sporting event;
(c) the following establishments listed in the 1997 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget, apply to Subsections (56)(a) and (b):
(i) NAICS Code 512110; or
(ii) NAICS Code 51219; and
(d) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule:
(i) prescribe what constitutes a medium similar to Subsections (56)(a)(i) through (vi); or
(ii) define:
(A) "commercial distribution";
(B) "live musical performance";
(C) "live news program"; or
(D) "live sporting event";
(57) (a) leases of seven or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is a renewable energy production facility;
(B) is located in the state; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its generation capacity increased by one or more megawatts on or after July 1, 2004 as a result of the use of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is used to make the facility or the increase in capacity of the facility described in Subsection (57)(a)(i) operational up to the point of interconnection with an existing transmission grid including:
(A) a wind turbine;
(B) generating equipment;
(C) a control and monitoring system;
(D) a power line;
(E) substation equipment;
(F) lighting;
(G) fencing;
(H) pipes; or
(I) other equipment used for locating a power line or pole; and
(b) this Subsection (57) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new renewable energy production facility; or
(B) the increase in the capacity of a renewable energy production facility;
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity of the facility described in Subsection (57)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the renewable energy production facility described in Subsection (57)(a)(i) is operational as described in Subsection (57)(a)(iii); or
(B) the increased capacity described in Subsection (57)(a)(i) is operational as described in Subsection (57)(a)(iii);
(58) (a) leases of seven or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is a waste energy production facility;
(B) is located in the state; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its generation capacity increased by one or more megawatts on or after July 1, 2004 as a result of the use of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is used to make the facility or the increase in capacity of the facility described in Subsection (58)(a)(i) operational up to the point of interconnection with an existing transmission grid including:
(A) generating equipment;
(B) a control and monitoring system;
(C) a power line;
(D) substation equipment;
(E) lighting;
(F) fencing;
(G) pipes; or
(H) other equipment used for locating a power line or pole; and
(b) this Subsection (58) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new waste energy facility; or
(B) the increase in the capacity of a waste energy facility;
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity described in Subsection (58)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the waste energy facility described in Subsection (58)(a)(i) is operational as described in Subsection (58)(a)(iii); or
(B) the increased capacity described in Subsection (58)(a)(i) is operational as described in Subsection (58)(a)(iii);
(59) (a) leases of five or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is located in the state;
(B) produces fuel from biomass energy including:
(I) methanol; or
(II) ethanol; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its capacity to produce fuel increase by 25% or more on or after July 1, 2004 as a result of the installation of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is installed on the facility described in Subsection (59)(a)(i);
(b) this Subsection (59) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new facility described in Subsection (59)(a)(i); or
(B) the increase in capacity of the facility described in Subsection (59)(a)(i); or
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity described in Subsection (59)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the facility described in Subsection (59)(a)(i) is operational; or
(B) the increased capacity described in Subsection (59)(a)(i) is operational;
(60) amounts paid to a purchaser as a rebate from the manufacturer of a new vehicle for purchasing the new vehicle;
(61) (a) subject to Subsection (61)(b), sales of tangible personal property to persons within this state that is subsequently shipped outside the state and incorporated pursuant to contract into and becomes a part of real property located outside of this state, except to the extent that the other state or political entity imposes a sales, use, gross receipts, or other similar transaction excise tax on it against which the other state or political entity allows a credit for taxes imposed by this chapter; and
(b) the exemption provided for in Subsection (61)(a):
(i) is allowed only if the exemption is applied:
(A) in calculating the purchase price of the tangible personal property; and
(B) to a written contract that is in effect on July 1, 2004; and
(ii) (A) does not apply beginning on the day on which the contract described in Subsection (61)(b)(i):
(I) is substantially modified; or
(II) terminates; and
(B) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule prescribe the circumstances under which a contract is substantially modified;
(62) purchases:
(a) of one or more of the following items in printed or electronic format:
(i) a list containing information that includes one or more:
(A) names; or
(B) addresses; or
(ii) a database containing information that includes one or more:
(A) names; or
(B) addresses; and
(b) used to send direct mail;
(63) redemptions or repurchases of property by a person if that property was:
(a) delivered to a pawnbroker as part of a pawn transaction; and
(b) redeemed or repurchased within the time period established in a written agreement between the person and the pawnbroker for redeeming or repurchasing the property;
(64) (a) purchases or leases of an item described in Subsection (64)(b) if the item:
(i) is purchased or leased by, or on behalf of, a telephone service provider; and
(ii) has a useful economic life of one or more years; and
(b) the following apply to Subsection (64)(a):
(i) telecommunications enabling or facilitating equipment, machinery, or software;
(ii) telecommunications equipment, machinery, or software required for 911 service;
(iii) telecommunications maintenance or repair equipment, machinery, or software;
(iv) telecommunications switching or routing equipment, machinery, or software; or
(v) telecommunications transmission equipment, machinery, or software;
(65) (a) beginning on July 1, 2006, and ending on June 30, 2016, purchases of tangible personal property used in the research and development of coal-to-liquids, oil shale, or tar sands technology; and
(b) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may, for purposes of Subsection (65)(a), make rules defining what constitutes tangible personal property used in the research and development of coal-to-liquids, oil shale, and tar sands technology;
(66) (a) purchases of property if:
(i) the property is:
(A) purchased outside of this state;
(B) brought into this state at any time after the purchase described in Subsection (66)(a)(i)(A); and
(C) used in conducting business in this state; and
(ii) for:
(A) property other than the property described in Subsection (66)(a)(ii)(B), the first use of the property for a purpose for which the property is designed occurs outside of this state; or
(B) a vehicle other than a vehicle sold to an authorized carrier, the vehicle is registered outside of this state;
(b) the exemption provided for in Subsection (66)(a) does not apply to:
(i) a lease or rental of property; or
(ii) a sale of a vehicle exempt under Subsection (33); and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (66)(a), the commission may by rule define what constitutes the following:
(i) conducting business in this state if that phrase has the same meaning in this Subsection (66) as in Subsection (24);
(ii) the first use of property if that phrase has the same meaning in this Subsection (66) as in Subsection (24); or
(iii) a purpose for which property is designed if that phrase has the same meaning in this Subsection (66) as in Subsection (24);
(67) sales of disposable home medical equipment or supplies if:
(a) a person presents a prescription for the disposable home medical equipment or supplies;
(b) the disposable home medical equipment or supplies are used exclusively by the person to whom the prescription described in Subsection (67)(a) is issued; and
(c) the disposable home medical equipment and supplies are listed as eligible for payment under:
(i) Title XVIII, federal Social Security Act; or
(ii) the state plan for medical assistance under Title XIX, federal Social Security Act; and
(68) sales to a public transit district under Title 17B, Chapter 2a, Part 8, Public Transit District Act, or to a subcontractor of a public transit district, including sales of construction materials that are to be installed or converted to real property owned by the public transit district.
Section 1028. Section 59-12-104 (Effective 01/01/08) is amended to read:
59-12-104 (Effective 01/01/08)
. Exemptions.The following sales and uses are exempt from the taxes imposed by this chapter:
(1) sales of aviation fuel, motor fuel, and special fuel subject to a Utah state excise tax under Chapter 13, Motor and Special Fuel Tax Act;
(2) sales to the state, its institutions, and its political subdivisions; however, this exemption does not apply to sales of:
(a) construction materials except:
(i) construction materials purchased by or on behalf of institutions of the public education system as defined in Utah Constitution Article X, Section 2, provided the construction materials are clearly identified and segregated and installed or converted to real property which is owned by institutions of the public education system; and
(ii) construction materials purchased by the state, its institutions, or its political subdivisions which are installed or converted to real property by employees of the state, its institutions, or its political subdivisions; or
(b) tangible personal property in connection with the construction, operation, maintenance, repair, or replacement of a project, as defined in Section 11-13-103, or facilities providing additional project capacity, as defined in Section 11-13-103;
(3) (a) sales of an item described in Subsection (3)(b) from a vending machine if:
(i) the proceeds of each sale do not exceed $1; and
(ii) the seller or operator of the vending machine reports an amount equal to 150% of the cost of the item described in Subsection (3)(b) as goods consumed; and
(b) Subsection (3)(a) applies to:
(i) food and food ingredients; or
(ii) prepared food;
(4) sales of the following to a commercial airline carrier for in-flight consumption:
(a) food and food ingredients;
(b) prepared food; or
(c) services related to Subsection (4)(a) or (b);
(5) sales of parts and equipment for installation in aircraft operated by common carriers in interstate or foreign commerce;
(6) sales of commercials, motion picture films, prerecorded audio program tapes or records, and prerecorded video tapes by a producer, distributor, or studio to a motion picture exhibitor, distributor, or commercial television or radio broadcaster;
(7) (a) subject to Subsection (7)(b), sales of cleaning or washing of tangible personal property if the cleaning or washing of the tangible personal property is not assisted cleaning or washing of tangible personal property;
(b) if a seller that sells at the same business location assisted cleaning or washing of tangible personal property and cleaning or washing of tangible personal property that is not assisted cleaning or washing of tangible personal property, the exemption described in Subsection (7)(a) applies if the seller separately accounts for the sales of the assisted cleaning or washing of the tangible personal property; and
(c) for purposes of Subsection (7)(b) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) governing the circumstances under which sales are at the same business location; and
(ii) establishing the procedures and requirements for a seller to separately account for sales of assisted cleaning or washing of tangible personal property;
(8) sales made to or by religious or charitable institutions in the conduct of their regular religious or charitable functions and activities, if the requirements of Section 59-12-104.1 are fulfilled;
(9) sales of a vehicle of a type required to be registered under the motor vehicle laws of this state if the vehicle is:
(a) not registered in this state; and
(b) (i) not used in this state; or
(ii) used in this state:
(A) if the vehicle is not used to conduct business, for a time period that does not exceed the longer of:
(I) 30 days in any calendar year; or
(II) the time period necessary to transport the vehicle to the borders of this state; or
(B) if the vehicle is used to conduct business, for the time period necessary to transport the vehicle to the borders of this state;
(10) (a) amounts paid for an item described in Subsection (10)(b) if:
(i) the item is intended for human use; and
(ii) (A) a prescription was issued for the item; or
(B) the item was purchased by a hospital or other medical facility; and
(b) (i) Subsection (10)(a) applies to:
(A) a drug;
(B) a syringe; or
(C) a stoma supply; and
(ii) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the terms:
(A) "syringe"; or
(B) "stoma supply";
(11) sales or use of property, materials, or services used in the construction of or incorporated in pollution control facilities allowed by Sections 19-2-123 through 19-2-127;
(12) (a) sales of an item described in Subsection (12)(c) served by:
(i) the following if the item described in Subsection (12)(c) is not available to the general public:
(A) a church; or
(B) a charitable institution;
(ii) an institution of higher education if:
(A) the item described in Subsection (12)(c) is not available to the general public; or
(B) the item described in Subsection (12)(c) is prepaid as part of a student meal plan offered by the institution of higher education; or
(b) sales of an item described in Subsection (12)(c) provided for a patient by:
(i) a medical facility; or
(ii) a nursing facility; and
(c) Subsections (12)(a) and (b) apply to:
(i) food and food ingredients;
(ii) prepared food; or
(iii) alcoholic beverages;
(13) (a) except as provided in Subsection (13)(b), the sale of tangible personal property by a person:
(i) regardless of the number of transactions involving the sale of that tangible personal property by that person; and
(ii) not regularly engaged in the business of selling that type of tangible personal property;
(b) this Subsection (13) does not apply if:
(i) the sale is one of a series of sales of a character to indicate that the person is regularly engaged in the business of selling that type of tangible personal property;
(ii) the person holds that person out as regularly engaged in the business of selling that type of tangible personal property;
(iii) the person sells an item of tangible personal property that the person purchased as a sale that is exempt under Subsection (25); or
(iv) the sale is of a vehicle or vessel required to be titled or registered under the laws of this state in which case the tax is based upon:
(A) the bill of sale or other written evidence of value of the vehicle or vessel being sold; or
(B) in the absence of a bill of sale or other written evidence of value, the fair market value of the vehicle or vessel being sold at the time of the sale as determined by the commission; and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules establishing the circumstances under which:
(i) a person is regularly engaged in the business of selling a type of tangible personal property;
(ii) a sale of tangible personal property is one of a series of sales of a character to indicate that a person is regularly engaged in the business of selling that type of tangible personal property; or
(iii) a person holds that person out as regularly engaged in the business of selling a type of tangible personal property;
(14) (a) except as provided in Subsection (14)(b), amounts paid or charged on or after July 1, 2006, for a purchase or lease by a manufacturing facility other than a cogeneration facility, for the following:
(i) machinery and equipment that:
(A) is used:
(I) for a manufacturing facility other than a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(48)(b):
(Aa) in the manufacturing process; and
(Bb) to manufacture an item sold as tangible personal property; or
(II) for a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(48)(b), to process an item sold as tangible personal property; and
(B) has an economic life of three or more years; and
(ii) normal operating repair or replacement parts that:
(A) have an economic life of three or more years; and
(B) are used:
(I) for a manufacturing facility in the state other than a manufacturing facility that is a scrap recycler described in Subsection 59-12-102(48)(b), in the manufacturing process; or
(II) for a manufacturing facility in the state that is a scrap recycler described in Subsection 59-12-102(48)(b), to process an item sold as tangible personal property;
(b) (i) amounts paid or charged on or after July 1, 2005, for a purchase or lease by a manufacturing facility that is a cogeneration facility placed in service on or after May 1, 2006, for the following:
(A) machinery and equipment that:
(I) is used:
(Aa) in the manufacturing process; and
(Bb) to manufacture an item sold as tangible personal property; and
(II) has an economic life of three or more years; and
(B) normal operating repair or replacement parts that:
(I) are used in the manufacturing process in a manufacturing facility in the state; and
(II) have an economic life of three or more years; and
(ii) for amounts paid or charged on or after July 1, 2005, but on or before June 30, 2006, for a purchase or lease described in Subsection (14)(b)(i), a cogeneration facility may claim the exemption allowed by Subsection (14)(b)(i) by filing for a refund:
(A) for sales and use taxes paid under this chapter on the purchase or lease payment; and
(B) in accordance with Section 59-12-110;
(c) amounts paid or charged for a purchase or lease made on or after January 1, 2008, by an establishment described in NAICS Subsector 212, Mining (except Oil and Gas), or NAICS Code 213113, Support Activities for Coal Mining, 213114, Support Activities for Metal Mining, or 213115, Support Activities for Nonmetallic Minerals (except Fuels) Mining, of the 2002 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget:
(i) machinery and equipment that:
(A) are used in:
(I) the production process, other than the production of real property; or
(II) research and development; and
(B) have an economic life of three or more years; and
(ii) normal operating repair or replacement parts that:
(A) have an economic life of three or more years; and
(B) are used in:
(I) the production process, other than the production of real property, in an establishment described in this Subsection (14)(c) in the state; or
(II) research and development in an establishment described in this Subsection (14)(c) in the state;
(d) for purposes of this Subsection (14) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission:
(i) shall by rule define the term "establishment"; and
(ii) may by rule define what constitutes:
(A) processing an item sold as tangible personal property;
(B) the production process, other than the production of real property; or
(C) research and development; and
(e) on or before October 1, 2011, and every five years after October 1, 2011, the commission shall:
(i) review the exemptions described in this Subsection (14) and make recommendations to the Revenue and Taxation Interim Committee concerning whether the exemptions should be continued, modified, or repealed; and
(ii) include in its report:
(A) the cost of the exemptions;
(B) the purpose and effectiveness of the exemptions; and
(C) the benefits of the exemptions to the state;
(15) (a) sales of the following if the requirements of Subsection (15)(b) are met:
(i) tooling;
(ii) special tooling;
(iii) support equipment;
(iv) special test equipment; or
(v) parts used in the repairs or renovations of tooling or equipment described in Subsections (15)(a)(i) through (iv); and
(b) sales of tooling, equipment, or parts described in Subsection (15)(a) are exempt if:
(i) the tooling, equipment, or parts are used or consumed exclusively in the performance of any aerospace or electronics industry contract with the United States government or any subcontract under that contract; and
(ii) under the terms of the contract or subcontract described in Subsection (15)(b)(i), title to the tooling, equipment, or parts is vested in the United States government as evidenced by:
(A) a government identification tag placed on the tooling, equipment, or parts; or
(B) listing on a government-approved property record if placing a government identification tag on the tooling, equipment, or parts is impractical;
(16) sales of newspapers or newspaper subscriptions;
(17) (a) except as provided in Subsection (17)(b), tangible personal property traded in as full or part payment of the purchase price, except that for purposes of calculating sales or use tax upon vehicles not sold by a vehicle dealer, trade-ins are limited to other vehicles only, and the tax is based upon:
(i) the bill of sale or other written evidence of value of the vehicle being sold and the vehicle being traded in; or
(ii) in the absence of a bill of sale or other written evidence of value, the then existing fair market value of the vehicle being sold and the vehicle being traded in, as determined by the commission; and
(b) notwithstanding Subsection (17)(a), Subsection (17)(a) does not apply to the following items of tangible personal property traded in as full or part payment of the purchase price:
(i) money;
(ii) electricity;
(iii) water;
(iv) gas; or
(v) steam;
(18) (a) (i) except as provided in Subsection (18)(b), sales of tangible personal property used or consumed primarily and directly in farming operations, regardless of whether the tangible personal property:
(A) becomes part of real estate; or
(B) is installed by a:
(I) farmer;
(II) contractor; or
(III) subcontractor; or
(ii) sales of parts used in the repairs or renovations of tangible personal property if the tangible personal property is exempt under Subsection (18)(a)(i); and
(b) notwithstanding Subsection (18)(a), amounts paid or charged for the following tangible personal property are subject to the taxes imposed by this chapter:
(i) (A) subject to Subsection (18)(b)(i)(B), the following tangible personal property if the tangible personal property is used in a manner that is incidental to farming:
(I) machinery;
(II) equipment;
(III) materials; or
(IV) supplies; and
(B) tangible personal property that is considered to be used in a manner that is incidental to farming includes:
(I) hand tools; or
(II) maintenance and janitorial equipment and supplies;
(ii) (A) subject to Subsection (18)(b)(ii)(B), tangible personal property if the tangible personal property is used in an activity other than farming; and
(B) tangible personal property that is considered to be used in an activity other than farming includes:
(I) office equipment and supplies; or
(II) equipment and supplies used in:
(Aa) the sale or distribution of farm products;
(Bb) research; or
(Cc) transportation; or
(iii) a vehicle required to be registered by the laws of this state during the period ending two years after the date of the vehicle's purchase;
(19) sales of hay;
(20) exclusive sale during the harvest season of seasonal crops, seedling plants, or garden, farm, or other agricultural produce if the seasonal crops are, seedling plants are, or garden, farm, or other agricultural produce is sold by:
(a) the producer of the seasonal crops, seedling plants, or garden, farm, or other agricultural produce;
(b) an employee of the producer described in Subsection (20)(a); or
(c) a member of the immediate family of the producer described in Subsection (20)(a);
(21) purchases made using a coupon as defined in 7 U.S.C. Sec. 2012 that is issued under the Food Stamp Program, 7 U.S.C. Sec. 2011 et seq.;
(22) sales of nonreturnable containers, nonreturnable labels, nonreturnable bags, nonreturnable shipping cases, and nonreturnable casings to a manufacturer, processor, wholesaler, or retailer for use in packaging tangible personal property to be sold by that manufacturer, processor, wholesaler, or retailer;
(23) property stored in the state for resale;
(24) (a) purchases of property if:
(i) the property is:
(A) purchased outside of this state;
(B) brought into this state:
(I) at any time after the purchase described in Subsection (24)(a)(i)(A); and
(II) by a nonresident person who is not living or working in this state at the time of the purchase;
(C) used for the personal use or enjoyment of the nonresident person described in Subsection (24)(a)(i)(B)(II) while that nonresident person is within the state; and
(D) not used in conducting business in this state; and
(ii) for:
(A) property other than the property described in Subsection (24)(a)(ii)(B), the first use of the property for a purpose for which the property is designed occurs outside of this state;
(B) a boat, the boat is registered outside of this state; or
(C) a vehicle other than a vehicle sold to an authorized carrier, the vehicle is registered outside of this state;
(b) the exemption provided for in Subsection (24)(a) does not apply to:
(i) a lease or rental of property; or
(ii) a sale of a vehicle exempt under Subsection (33); and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (24)(a), the commission may by rule define what constitutes the following:
(i) conducting business in this state if that phrase has the same meaning in this Subsection (24) as in Subsection (66);
(ii) the first use of property if that phrase has the same meaning in this Subsection (24) as in Subsection (66); or
(iii) a purpose for which property is designed if that phrase has the same meaning in this Subsection (24) as in Subsection (66);
(25) property purchased for resale in this state, in the regular course of business, either in its original form or as an ingredient or component part of a manufactured or compounded product;
(26) property upon which a sales or use tax was paid to some other state, or one of its subdivisions, except that the state shall be paid any difference between the tax paid and the tax imposed by this part and Part 2, Local Sales and Use Tax Act, and no adjustment is allowed if the tax paid was greater than the tax imposed by this part and Part 2, Local Sales and Use Tax Act;
(27) any sale of a service described in Subsections 59-12-103(1)(b), (c), and (d) to a person for use in compounding a service taxable under the subsections;
(28) purchases made in accordance with the special supplemental nutrition program for women, infants, and children established in 42 U.S.C. Sec. 1786;
(29) beginning on July 1, 1999, through June 30, 2014, sales or leases of rolls, rollers, refractory brick, electric motors, or other replacement parts used in the furnaces, mills, or ovens of a steel mill described in SIC Code 3312 of the 1987 Standard Industrial Classification Manual of the federal Executive Office of the President, Office of Management and Budget;
(30) sales of a boat of a type required to be registered under Title 73, Chapter 18, State Boating Act, a boat trailer, or an outboard motor if the boat, boat trailer, or outboard motor is:
(a) not registered in this state; and
(b) (i) not used in this state; or
(ii) used in this state:
(A) if the boat, boat trailer, or outboard motor is not used to conduct business, for a time period that does not exceed the longer of:
(I) 30 days in any calendar year; or
(II) the time period necessary to transport the boat, boat trailer, or outboard motor to the borders of this state; or
(B) if the boat, boat trailer, or outboard motor is used to conduct business, for the time period necessary to transport the boat, boat trailer, or outboard motor to the borders of this state;
(31) sales of aircraft manufactured in Utah if sold for delivery and use outside Utah where a sales or use tax is not imposed, even if the title is passed in Utah;
(32) amounts paid for the purchase of telephone service for purposes of providing telephone service;
(33) sales, leases, or uses of the following:
(a) a vehicle by an authorized carrier; or
(b) tangible personal property that is installed on a vehicle:
(i) sold or leased to or used by an authorized carrier; and
(ii) before the vehicle is placed in service for the first time;
(34) (a) 45% of the sales price of any new manufactured home; and
(b) 100% of the sales price of any used manufactured home;
(35) sales relating to schools and fundraising sales;
(36) sales or rentals of durable medical equipment if:
(a) a person presents a prescription for the durable medical equipment; and
(b) the durable medical equipment is used for home use only;
(37) (a) sales to a ski resort of electricity to operate a passenger ropeway as defined in Section 72-11-102; and
(b) the commission shall by rule determine the method for calculating sales exempt under Subsection (37)(a) that are not separately metered and accounted for in utility billings;
(38) sales to a ski resort of:
(a) snowmaking equipment;
(b) ski slope grooming equipment;
(c) passenger ropeways as defined in Section 72-11-102; or
(d) parts used in the repairs or renovations of equipment or passenger ropeways described in Subsections (38)(a) through (c);
(39) sales of natural gas, electricity, heat, coal, fuel oil, or other fuels for industrial use;
(40) (a) subject to Subsection (40)(b), sales or rentals of the right to use or operate for amusement, entertainment, or recreation an unassisted amusement device as defined in Section 59-12-102;
(b) if a seller that sells or rents at the same business location the right to use or operate for amusement, entertainment, or recreation one or more unassisted amusement devices and one or more assisted amusement devices, the exemption described in Subsection (40)(a) applies if the seller separately accounts for the sales or rentals of the right to use or operate for amusement, entertainment, or recreation for the assisted amusement devices; and
(c) for purposes of Subsection (40)(b) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules:
(i) governing the circumstances under which sales are at the same business location; and
(ii) establishing the procedures and requirements for a seller to separately account for the sales or rentals of the right to use or operate for amusement, entertainment, or recreation for assisted amusement devices;
(41) (a) sales of photocopies by:
(i) a governmental entity; or
(ii) an entity within the state system of public education, including:
(A) a school; or
(B) the State Board of Education; or
(b) sales of publications by a governmental entity;
(42) amounts paid for admission to an athletic event at an institution of higher education that is subject to the provisions of Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq.;
(43) sales of telephone service charged to a prepaid telephone calling card;
(44) (a) sales of:
(i) hearing aids;
(ii) hearing aid accessories; or
(iii) except as provided in Subsection (44)(b), parts used in the repairs or renovations of hearing aids or hearing aid accessories; and
(b) for purposes of this Subsection (44), notwithstanding Subsection (44)(a)(iii), "parts" does not include batteries;
(45) (a) sales made to or by:
(i) an area agency on aging; or
(ii) a senior citizen center owned by a county, city, or town; or
(b) sales made by a senior citizen center that contracts with an area agency on aging;
(46) sales or leases of semiconductor fabricating, processing, research, or development materials regardless of whether the semiconductor fabricating, processing, research, or development materials:
(a) actually come into contact with a semiconductor; or
(b) ultimately become incorporated into real property;
(47) an amount paid by or charged to a purchaser for accommodations and services described in Subsection 59-12-103(1)(i) to the extent the amount is exempt under Section 59-12-104.2;
(48) beginning on September 1, 2001, the lease or use of a vehicle issued a temporary sports event registration certificate in accordance with Section 41-3-306 for the event period specified on the temporary sports event registration certificate;
(49) sales or uses of electricity, if the sales or uses are:
(a) made under a tariff adopted by the Public Service Commission of Utah only for purchase of electricity produced from a new wind, geothermal, biomass, or solar power energy source, as designated in the tariff by the Public Service Commission of Utah; and
(b) for an amount of electricity that is:
(i) unrelated to the amount of electricity used by the person purchasing the electricity under the tariff described in Subsection (49)(a); and
(ii) equivalent to the number of kilowatthours specified in the tariff described in Subsection (49)(a) that may be purchased under the tariff described in Subsection (49)(a);
(50) sales or rentals of mobility enhancing equipment if a person presents a prescription for the mobility enhancing equipment;
(51) sales of water in a:
(a) pipe;
(b) conduit;
(c) ditch; or
(d) reservoir;
(52) sales of currency or coinage that constitute legal tender of the United States or of a foreign nation;
(53) (a) sales of an item described in Subsection (53)(b) if the item:
(i) does not constitute legal tender of any nation; and
(ii) has a gold, silver, or platinum content of 80% or more; and
(b) Subsection (53)(a) applies to a gold, silver, or platinum:
(i) ingot;
(ii) bar;
(iii) medallion; or
(iv) decorative coin;
(54) amounts paid on a sale-leaseback transaction;
(55) sales of a prosthetic device:
(a) for use on or in a human;
(b) for which a prescription is issued; and
(c) to a person that presents a prescription for the prosthetic device;
(56) (a) except as provided in Subsection (56)(b), purchases, leases, or rentals of machinery or equipment by an establishment described in Subsection (56)(c) if the machinery or equipment is primarily used in the production or postproduction of the following media for commercial distribution:
(i) a motion picture;
(ii) a television program;
(iii) a movie made for television;
(iv) a music video;
(v) a commercial;
(vi) a documentary; or
(vii) a medium similar to Subsections (56)(a)(i) through (vi) as determined by the commission by administrative rule made in accordance with Subsection (56)(d); or
(b) notwithstanding Subsection (56)(a), purchases, leases, or rentals of machinery or equipment by an establishment described in Subsection (56)(c) that is used for the production or postproduction of the following are subject to the taxes imposed by this chapter:
(i) a live musical performance;
(ii) a live news program; or
(iii) a live sporting event;
(c) the following establishments listed in the 1997 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget, apply to Subsections (56)(a) and (b):
(i) NAICS Code 512110; or
(ii) NAICS Code 51219; and
(d) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule:
(i) prescribe what constitutes a medium similar to Subsections (56)(a)(i) through (vi); or
(ii) define:
(A) "commercial distribution";
(B) "live musical performance";
(C) "live news program"; or
(D) "live sporting event";
(57) (a) leases of seven or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is a renewable energy production facility;
(B) is located in the state; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its generation capacity increased by one or more megawatts on or after July 1, 2004 as a result of the use of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is used to make the facility or the increase in capacity of the facility described in Subsection (57)(a)(i) operational up to the point of interconnection with an existing transmission grid including:
(A) a wind turbine;
(B) generating equipment;
(C) a control and monitoring system;
(D) a power line;
(E) substation equipment;
(F) lighting;
(G) fencing;
(H) pipes; or
(I) other equipment used for locating a power line or pole; and
(b) this Subsection (57) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new renewable energy production facility; or
(B) the increase in the capacity of a renewable energy production facility;
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity of the facility described in Subsection (57)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the renewable energy production facility described in Subsection (57)(a)(i) is operational as described in Subsection (57)(a)(iii); or
(B) the increased capacity described in Subsection (57)(a)(i) is operational as described in Subsection (57)(a)(iii);
(58) (a) leases of seven or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is a waste energy production facility;
(B) is located in the state; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its generation capacity increased by one or more megawatts on or after July 1, 2004 as a result of the use of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is used to make the facility or the increase in capacity of the facility described in Subsection (58)(a)(i) operational up to the point of interconnection with an existing transmission grid including:
(A) generating equipment;
(B) a control and monitoring system;
(C) a power line;
(D) substation equipment;
(E) lighting;
(F) fencing;
(G) pipes; or
(H) other equipment used for locating a power line or pole; and
(b) this Subsection (58) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new waste energy facility; or
(B) the increase in the capacity of a waste energy facility;
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity described in Subsection (58)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the waste energy facility described in Subsection (58)(a)(i) is operational as described in Subsection (58)(a)(iii); or
(B) the increased capacity described in Subsection (58)(a)(i) is operational as described in Subsection (58)(a)(iii);
(59) (a) leases of five or more years or purchases made on or after July 1, 2004 but on or before June 30, 2009, of machinery or equipment that:
(i) is leased or purchased for or by a facility that:
(A) is located in the state;
(B) produces fuel from biomass energy including:
(I) methanol; or
(II) ethanol; and
(C) (I) becomes operational on or after July 1, 2004; or
(II) has its capacity to produce fuel increase by 25% or more on or after July 1, 2004 as a result of the installation of the machinery or equipment;
(ii) has an economic life of five or more years; and
(iii) is installed on the facility described in Subsection (59)(a)(i);
(b) this Subsection (59) does not apply to:
(i) machinery or equipment used in construction of:
(A) a new facility described in Subsection (59)(a)(i); or
(B) the increase in capacity of the facility described in Subsection (59)(a)(i); or
(ii) contracted services required for construction and routine maintenance activities; and
(iii) unless the machinery or equipment is used or acquired for an increase in capacity described in Subsection (59)(a)(i)(C)(II), machinery or equipment used or acquired after:
(A) the facility described in Subsection (59)(a)(i) is operational; or
(B) the increased capacity described in Subsection (59)(a)(i) is operational;
(60) amounts paid to a purchaser as a rebate from the manufacturer of a new vehicle for purchasing the new vehicle;
(61) (a) subject to Subsection (61)(b), sales of tangible personal property to persons within this state that is subsequently shipped outside the state and incorporated pursuant to contract into and becomes a part of real property located outside of this state, except to the extent that the other state or political entity imposes a sales, use, gross receipts, or other similar transaction excise tax on it against which the other state or political entity allows a credit for taxes imposed by this chapter; and
(b) the exemption provided for in Subsection (61)(a):
(i) is allowed only if the exemption is applied:
(A) in calculating the purchase price of the tangible personal property; and
(B) to a written contract that is in effect on July 1, 2004; and
(ii) (A) does not apply beginning on the day on which the contract described in Subsection (61)(b)(i):
(I) is substantially modified; or
(II) terminates; and
(B) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule prescribe the circumstances under which a contract is substantially modified;
(62) purchases:
(a) of one or more of the following items in printed or electronic format:
(i) a list containing information that includes one or more:
(A) names; or
(B) addresses; or
(ii) a database containing information that includes one or more:
(A) names; or
(B) addresses; and
(b) used to send direct mail;
(63) redemptions or repurchases of property by a person if that property was:
(a) delivered to a pawnbroker as part of a pawn transaction; and
(b) redeemed or repurchased within the time period established in a written agreement between the person and the pawnbroker for redeeming or repurchasing the property;
(64) (a) purchases or leases of an item described in Subsection (64)(b) if the item:
(i) is purchased or leased by, or on behalf of, a telephone service provider; and
(ii) has a useful economic life of one or more years; and
(b) the following apply to Subsection (64)(a):
(i) telecommunications enabling or facilitating equipment, machinery, or software;
(ii) telecommunications equipment, machinery, or software required for 911 service;
(iii) telecommunications maintenance or repair equipment, machinery, or software;
(iv) telecommunications switching or routing equipment, machinery, or software; or
(v) telecommunications transmission equipment, machinery, or software;
(65) (a) beginning on July 1, 2006, and ending on June 30, 2016, purchases of tangible personal property used in the research and development of coal-to-liquids, oil shale, or tar sands technology; and
(b) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may, for purposes of Subsection (65)(a), make rules defining what constitutes tangible personal property used in the research and development of coal-to-liquids, oil shale, and tar sands technology;
(66) (a) purchases of property if:
(i) the property is:
(A) purchased outside of this state;
(B) brought into this state at any time after the purchase described in Subsection (66)(a)(i)(A); and
(C) used in conducting business in this state; and
(ii) for:
(A) property other than the property described in Subsection (66)(a)(ii)(B), the first use of the property for a purpose for which the property is designed occurs outside of this state; or
(B) a vehicle other than a vehicle sold to an authorized carrier, the vehicle is registered outside of this state;
(b) the exemption provided for in Subsection (66)(a) does not apply to:
(i) a lease or rental of property; or
(ii) a sale of a vehicle exempt under Subsection (33); and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for purposes of Subsection (66)(a), the commission may by rule define what constitutes the following:
(i) conducting business in this state if that phrase has the same meaning in this Subsection (66) as in Subsection (24);
(ii) the first use of property if that phrase has the same meaning in this Subsection (66) as in Subsection (24); or
(iii) a purpose for which property is designed if that phrase has the same meaning in this Subsection (66) as in Subsection (24);
(67) sales of disposable home medical equipment or supplies if:
(a) a person presents a prescription for the disposable home medical equipment or supplies;
(b) the disposable home medical equipment or supplies are used exclusively by the person to whom the prescription described in Subsection (67)(a) is issued; and
(c) the disposable home medical equipment and supplies are listed as eligible for payment under:
(i) Title XVIII, federal Social Security Act; or
(ii) the state plan for medical assistance under Title XIX, federal Social Security Act; and
(68) sales to a public transit district under Title 17B, Chapter 2a, Part 8, Public Transit District Act, or to a subcontractor of a public transit district, including sales of construction materials that are to be installed or converted to real property owned by the public transit district.
Section 1029. Section 59-12-104.1 is amended to read:
59-12-104.1
. Exemptions for religious or charitable institutions.(1) Except as provided in Section 59-12-104, sales made by religious or charitable institutions or organizations are exempt from the sales and use tax imposed by this chapter if the sale is made in the conduct of the institution's or organization's regular religious or charitable functions or activities.
(2) (a) Except as provided in Section 59-12-104, sales made to a religious or charitable institution or organization are exempt from the sales and use tax imposed by this chapter if the sale is made in the conduct of the institution's or organization's regular religious or charitable functions and activities.
(b) In order to facilitate the efficient administration of the exemption granted by this section, the exemption shall be administered as follows:
(i) the exemption shall be at point of sale if the sale is in the amount of at least $1,000;
(ii) except as provided in Subsection (2)(b)(iii), if the sale is less than $1,000, the exemption shall be in the form of a refund of sales or use taxes paid at the point of sale; and
(iii) notwithstanding Subsection (2)(b)(ii), the exemption under this section shall be at point of sale if the sale is:
(A) made pursuant to a contract between the seller and the charitable or religious institution or organization; or
(B) made by a public utility, as defined in Section 54-2-1, to a religious or charitable institution or organization.
(3) (a) Religious or charitable institutions or organizations entitled to a refund under Subsection (2)(b)(ii) may apply to the commission for the refund of sales or use taxes paid.
(b) The commission shall designate the following by commission rule adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(i) procedures for applying for a sales and use tax refund;
(ii) standards for determining and verifying the amount of purchase at the point of sale;
(iii) procedures for submitting a request for refund on a monthly basis anytime the taxpayer has accumulated $100 or more in sales tax payments; and
(iv) procedures for submitting a request for refund on a quarterly basis for any cumulative amount of sales tax payments.
Section 1030. Section 59-12-106 is amended to read:
59-12-106
. Definitions -- Sales and use tax license requirements -- Penalty -- Application process and requirements -- No fee -- Bonds -- Presumption of taxability -- Exemption certificates -- Exemption certificate license number to accompany contract bids.(1) As used in this section:
(a) "applicant" means a person that:
(i) is required by this section to obtain a license; and
(ii) submits an application:
(A) to the commission; and
(B) for a license under this section;
(b) "application" means an application for a license under this section;
(c) "fiduciary of the applicant" means a person that:
(i) is required to collect, truthfully account for, and pay over a tax under this chapter for an applicant; and
(ii) (A) is a corporate officer of the applicant described in Subsection (1)(c)(i);
(B) is a director of the applicant described in Subsection (1)(c)(i);
(C) is an employee of the applicant described in Subsection (1)(c)(i);
(D) is a partner of the applicant described in Subsection (1)(c)(i);
(E) is a trustee of the applicant described in Subsection (1)(c)(i); or
(F) has a relationship to the applicant described in Subsection (1)(c)(i) that is similar to a relationship described in Subsections (1)(c)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) "fiduciary of the licensee" means a person that:
(i) is required to collect, truthfully account for, and pay over a tax under this chapter for a licensee; and
(ii) (A) is a corporate officer of the licensee described in Subsection (1)(d)(i);
(B) is a director of the licensee described in Subsection (1)(d)(i);
(C) is an employee of the licensee described in Subsection (1)(d)(i);
(D) is a partner of the licensee described in Subsection (1)(d)(i);
(E) is a trustee of the licensee described in Subsection (1)(d)(i); or
(F) has a relationship to the licensee described in Subsection (1)(d)(i) that is similar to a relationship described in Subsections (1)(d)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(e) "license" means a license under this section; and
(f) "licensee" means a person that is licensed under this section by the commission.
(2) (a) It is unlawful for any person required to collect a tax under this chapter to engage in business within the state without first having obtained a license to do so.
(b) The license described in Subsection (2)(a):
(i) shall be granted and issued by the commission;
(ii) is not assignable;
(iii) is valid only for the person in whose name the license is issued;
(iv) is valid until:
(A) the person described in Subsection (2)(b)(iii):
(I) ceases to do business; or
(II) changes that person's business address; or
(B) the license is revoked by the commission; and
(v) subject to Subsection (2)(d), shall be granted by the commission only upon an application that:
(A) states the name and address of the applicant; and
(B) provides other information the commission may require.
(c) At the time an applicant makes an application under Subsection (2)(b)(v), the commission shall notify the applicant of the responsibilities and liability of a business owner successor under Section 59-12-112.
(d) The commission shall review an application and determine whether the applicant:
(i) meets the requirements of this section to be issued a license; and
(ii) is required to post a bond with the commission in accordance with Subsections (2)(e) and (f) before the applicant may be issued a license.
(e) (i) An applicant shall post a bond with the commission before the commission may issue the applicant a license if:
(A) a license under this section was revoked for a delinquency under this chapter for:
(I) the applicant;
(II) a fiduciary of the applicant; or
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this chapter; or
(B) there is a delinquency in paying a tax under this chapter for:
(I) the applicant;
(II) a fiduciary of the applicant; or
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this chapter.
(ii) If the commission determines it is necessary to ensure compliance with this chapter, the commission may require a licensee to:
(A) for a licensee that has not posted a bond under this section with the commission, post a bond with the commission in accordance with Subsection (2)(f); or
(B) for a licensee that has posted a bond under this section with the commission, increase the amount of the bond posted with the commission.
(f) (i) A bond required by Subsection (2)(e) shall be:
(A) executed by:
(I) for an applicant, the applicant as principal, with a corporate surety; or
(II) for a licensee, the licensee as principal, with a corporate surety; and
(B) payable to the commission conditioned upon the faithful performance of all of the requirements of this chapter including:
(I) the payment of any tax under this chapter;
(II) the payment of any:
(Aa) penalty as provided in Section 59-1-401; or
(Bb) interest as provided in Section 59-1-402; or
(III) any other obligation of the:
(Aa) applicant under this chapter; or
(Bb) licensee under this chapter.
(ii) Except as provided in Subsection (2)(f)(iv), the commission shall calculate the amount of a bond required by Subsection (2)(e) on the basis of:
(A) commission estimates of:
(I) an applicant's tax liability under this chapter; or
(II) a licensee's tax liability under this chapter; and
(B) any amount of a delinquency described in Subsection (2)(f)(iii).
(iii) Except as provided in Subsection (2)(f)(iv), for purposes of Subsection (2)(f)(ii)(B):
(A) for an applicant, the amount of the delinquency is the sum of:
(I) the amount of any delinquency that served as a basis for revoking the license under this section of:
(Aa) the applicant;
(Bb) a fiduciary of the applicant; or
(Cc) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this chapter; or
(II) the amount of tax that any of the following owe under this chapter:
(Aa) the applicant;
(Bb) a fiduciary of the applicant; and
(Cc) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this chapter; or
(B) for a licensee, the amount of the delinquency is the sum of:
(I) the amount of any delinquency that served as a basis for revoking the license under this section of:
(Aa) the licensee;
(Bb) a fiduciary of the licensee; or
(Cc) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this chapter; or
(II) the amount of tax that any of the following owe under this chapter:
(Aa) the licensee;
(Bb) a fiduciary of the licensee; and
(Cc) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this chapter.
(iv) Notwithstanding Subsection (2)(f)(ii) or (2)(f)(iii), a bond required by Subsection (2)(e) may not:
(A) be less than $25,000; or
(B) exceed $500,000.
(g) If business is transacted at two or more separate places by one person, a separate license for each place of business is required.
(h) (i) The commission shall, on a reasonable notice and after a hearing, revoke the license of any licensee violating any provisions of this chapter.
(ii) A license may not be issued to a licensee described in Subsection (2)(h)(i) until the licensee has complied with the requirements of this chapter, including:
(A) paying any:
(I) tax due under this chapter;
(II) penalty as provided in Section 59-1-401; or
(III) interest as provided in Section 59-1-402; and
(B) posting a bond in accordance with Subsections (2)(e) and (f).
(i) Any person required to collect a tax under this chapter within this state without having secured a license to do so is guilty of a criminal violation as provided in Section 59-1-401.
(j) A license:
(i) is not required for any person engaged exclusively in the business of selling commodities that are exempt from taxation under this chapter; and
(ii) shall be issued to the person by the commission without a license fee.
(3) (a) For the purpose of the proper administration of this chapter and to prevent evasion of the tax and the duty to collect the tax, it shall be presumed that tangible personal property or any other taxable transaction under Subsection 59-12-103(1) sold by any person for delivery in this state is sold for storage, use, or other consumption in this state unless the person selling the property, item, or service has taken from the purchaser an exemption certificate:
(i) bearing the name and address of the purchaser; and
(ii) providing that the property, item, or service was exempted under Section 59-12-104.
(b) An exemption certificate described in Subsection (3)(a):
(i) shall contain information as prescribed by the commission; and
(ii) if a paper exemption certificate is used, shall be signed by the purchaser.
(c) Except as provided in Subsection (3)(d), a seller that has taken an exemption certificate from a purchaser in accordance with this Subsection (3) with respect to a transaction is not liable to collect a tax under this chapter:
(i) on that transaction; and
(ii) if the commission or a court of competent jurisdiction subsequently determines that the purchaser improperly claimed the exemption.
(d) Notwithstanding Subsection (3)(c), Subsection (3)(c) does not apply to a seller that:
(i) fraudulently fails to collect a tax under this chapter; or
(ii) solicits a purchaser to participate in improperly claiming an exemption from a tax under this chapter.
(4) A person filing a contract bid with the state or a political subdivision of the state for the sale of tangible personal property or any other taxable transaction under Subsection 59-12-103(1) shall include with the bid the number of the license issued to that person under Subsection (2).
Section 1031. Section 59-12-107 is amended to read:
59-12-107
. Collection, remittance, and payment of tax by sellers or other persons -- Returns -- Direct payment by purchaser of vehicle -- Other liability for collection -- Rulemaking authority -- Credits -- Treatment of bad debt -- Penalties.(1) (a) Except as provided in Subsection (1)(d) or Section 59-12-107.1 and subject to Subsection (1)(e), each seller shall pay or collect and remit the sales and use taxes imposed by this chapter if within this state the seller:
(i) has or utilizes:
(A) an office;
(B) a distribution house;
(C) a sales house;
(D) a warehouse;
(E) a service enterprise; or
(F) a place of business similar to Subsections (1)(a)(i)(A) through (E);
(ii) maintains a stock of goods;
(iii) regularly solicits orders, regardless of whether or not the orders are accepted in the state, unless the seller's only activity in the state is:
(A) advertising; or
(B) solicitation by:
(I) direct mail;
(II) electronic mail;
(III) the Internet;
(IV) telephone; or
(V) a means similar to Subsection (1)(a)(iii)(A) or (B);
(iv) regularly engages in the delivery of property in the state other than by:
(A) common carrier; or
(B) United States mail; or
(v) regularly engages in an activity directly related to the leasing or servicing of property located within the state.
(b) A seller that does not meet one or more of the criteria provided for in Subsection (1)(a):
(i) except as provided in Subsection (1)(b)(ii), may voluntarily:
(A) collect a tax on a transaction described in Subsection 59-12-103(1); and
(B) remit the tax to the commission as provided in this part; or
(ii) notwithstanding Subsection (1)(b)(i), shall collect a tax on a transaction described in Subsection 59-12-103(1) if Section 59-12-103.1 requires the seller to collect the tax.
(c) A person shall pay a use tax imposed by this chapter on a transaction described in Subsection 59-12-103(1) if:
(i) the seller did not collect a tax imposed by this chapter on the transaction; and
(ii) the person:
(A) stores the tangible personal property in the state;
(B) uses the tangible personal property in the state; or
(C) consumes the tangible personal property in the state.
(d) The ownership of property that is located at the premises of a printer's facility with which the retailer has contracted for printing and that consists of the final printed product, property that becomes a part of the final printed product, or copy from which the printed product is produced, shall not result in the retailer being considered to have or maintain an office, distribution house, sales house, warehouse, service enterprise, or other place of business, or to maintain a stock of goods, within this state.
(e) (i) As used in this Subsection (1)(e):
(A) "affiliated group" is as defined in Section 59-7-101, except that "affiliated group" includes a corporation that is qualified to do business but is not otherwise doing business in this state;
(B) "common ownership" is as defined in Section 59-7-101;
(C) "related seller" means a seller that:
(I) is not required to pay or collect and remit sales and use taxes under Subsection (1)(a) or Section 59-12-103.1;
(II) is:
(Aa) related to a seller that is required to pay or collect and remit sales and use taxes under Subsection (1)(a) as part of an affiliated group or because of common ownership; or
(Bb) a limited liability company owned by the parent corporation of an affiliated group if that parent corporation of the affiliated group is required to pay or collect and remit sales and use taxes under Subsection (1)(a); and
(III) does not voluntarily collect and remit a tax under Subsection (1)(b)(i).
(ii) A seller is not required to pay or collect and remit sales and use taxes under Subsection (1)(a):
(A) if the seller is a related seller;
(B) if the seller to which the related seller is related does not engage in any of the following activities on behalf of the related seller:
(I) advertising;
(II) marketing;
(III) sales; or
(IV) other services; and
(C) if the seller to which the related seller is related accepts the return of an item sold by the related seller, the seller to which the related seller is related accepts the return of that item:
(I) sold by a seller that is not a related seller; and
(II) on the same terms as the return of an item sold by that seller to which the related seller is related.
(2) (a) Except as provided in Section 59-12-107.1, a tax under this chapter shall be collected from a purchaser.
(b) A seller may not collect as tax an amount, without regard to fractional parts of one cent, in excess of the tax computed at the rates prescribed by this chapter.
(c) (i) Each seller shall:
(A) give the purchaser a receipt for the tax collected; or
(B) bill the tax as a separate item and declare the name of this state and the seller's sales and use tax license number on the invoice for the sale.
(ii) The receipt or invoice is prima facie evidence that the seller has collected the tax and relieves the purchaser of the liability for reporting the tax to the commission as a consumer.
(d) A seller is not required to maintain a separate account for the tax collected, but is considered to be a person charged with receipt, safekeeping, and transfer of public moneys.
(e) Taxes collected by a seller pursuant to this chapter shall be held in trust for the benefit of the state and for payment to the commission in the manner and at the time provided for in this chapter.
(f) If any seller, during any reporting period, collects as a tax an amount in excess of the lawful state and local percentage of total taxable sales allowed under this chapter, the seller shall remit to the commission the full amount of the tax imposed under this chapter, plus any excess.
(g) If the accounting methods regularly employed by the seller in the transaction of the seller's business are such that reports of sales made during a calendar month or quarterly period will impose unnecessary hardships, the commission may accept reports at intervals that will, in the commission's opinion, better suit the convenience of the taxpayer or seller and will not jeopardize collection of the tax.
(3) (a) Except as provided in Subsection (4) and Section 59-12-108, the sales or use tax imposed by this chapter is due and payable to the commission quarterly on or before the last day of the month next succeeding each calendar quarterly period.
(b) (i) Each seller shall, on or before the last day of the month next succeeding each calendar quarterly period, file with the commission a return for the preceding quarterly period.
(ii) The seller shall remit with the return under Subsection (3)(b)(i) the amount of the tax required under this chapter to be collected or paid for the period covered by the return.
(c) Each return shall contain information and be in a form the commission prescribes by rule.
(d) The sales tax as computed in the return shall be based upon the total nonexempt sales made during the period, including both cash and charge sales.
(e) The use tax as computed in the return shall be based upon the total amount of sales and purchases for storage, use, or other consumption in this state made during the period, including both by cash and by charge.
(f) (i) Subject to Subsection (3)(f)(ii) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule extend the time for making returns and paying the taxes.
(ii) An extension under Subsection (3)(f)(i) may not be for more than 90 days.
(g) The commission may require returns and payment of the tax to be made for other than quarterly periods if the commission considers it necessary in order to ensure the payment of the tax imposed by this chapter.
(4) (a) On each vehicle sale made by other than a regular licensed vehicle dealer, the purchaser shall pay the sales or use tax directly to the commission if the vehicle is subject to titling or registration under the laws of this state.
(b) The commission shall collect the tax described in Subsection (4)(a) when the vehicle is titled or registered.
(5) If any sale of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), is made by a wholesaler to a retailer, the wholesaler is not responsible for the collection or payment of the tax imposed on the sale and the retailer is responsible for the collection or payment of the tax imposed on the sale if:
(a) the retailer represents that the personal property is purchased by the retailer for resale; and
(b) the personal property is not subsequently resold.
(6) If any sale of property or service subject to the tax is made to a person prepaying sales or use tax in accordance with [Title 63, Chapter 51] Title 63M, Chapter 5, Resource Development, or to a contractor or subcontractor of that person, the person to whom such payment or consideration is payable is not responsible for the collection or payment of the sales or use tax and the person prepaying the sales or use tax is responsible for the collection or payment of the sales or use tax if the person prepaying the sales or use tax represents that the amount prepaid as sales or use tax has not been fully credited against sales or use tax due and payable under the rules promulgated by the commission.
(7) (a) For purposes of this Subsection (7):
(i) Except as provided in Subsection (7)(a)(ii), "bad debt" is as defined in Section 166, Internal Revenue Code.
(ii) Notwithstanding Subsection (7)(a)(i), "bad debt" does not include:
(A) an amount included in the purchase price of tangible personal property or a service that is:
(I) not a transaction described in Subsection 59-12-103(1); or
(II) exempt under Section 59-12-104;
(B) a financing charge;
(C) interest;
(D) a tax imposed under this chapter on the purchase price of tangible personal property or a service;
(E) an uncollectible amount on tangible personal property that:
(I) is subject to a tax under this chapter; and
(II) remains in the possession of a seller until the full purchase price is paid;
(F) an expense incurred in attempting to collect any debt; or
(G) an amount that a seller does not collect on repossessed property.
(b) A seller may deduct bad debt from the total amount from which a tax under this chapter is calculated on a return.
(c) A seller may file a refund claim with the commission if:
(i) the amount of bad debt for the time period described in Subsection (7)(e) exceeds the amount of the seller's sales that are subject to a tax under this chapter for that same time period; and
(ii) as provided in Section 59-12-110.
(d) A bad debt deduction under this section may not include interest.
(e) A bad debt may be deducted under this Subsection (7) on a return for the time period during which the bad debt:
(i) is written off as uncollectible in the seller’s books and records; and
(ii) would be eligible for a bad debt deduction:
(A) for federal income tax purposes; and
(B) if the seller were required to file a federal income tax return.
(f) If a seller recovers any portion of bad debt for which the seller makes a deduction or claims a refund under this Subsection (7), the seller shall report and remit a tax under this chapter:
(i) on the portion of the bad debt the seller recovers; and
(ii) on a return filed for the time period for which the portion of the bad debt is recovered.
(g) For purposes of reporting a recovery of a portion of bad debt under Subsection (7)(f), a seller shall apply amounts received on the bad debt in the following order:
(i) in a proportional amount:
(A) to the purchase price of the tangible personal property or service; and
(B) to the tax due under this chapter on the tangible personal property or service; and
(ii) to:
(A) interest charges;
(B) service charges; and
(C) other charges.
(8) (a) A seller may not, with intent to evade any tax, fail to timely remit the full amount of tax required by this chapter.
(b) A violation of this section is punishable as provided in Section 59-1-401.
(c) Each person who fails to pay any tax to the state or any amount of tax required to be paid to the state, except amounts determined to be due by the commission under Sections 59-12-110 and 59-12-111, within the time required by this chapter, or who fails to file any return as required by this chapter, shall pay, in addition to the tax, penalties and interest as provided in Section 59-12-110.
(d) For purposes of prosecution under this section, each quarterly tax period in which a seller, with intent to evade any tax, collects a tax and fails to timely remit the full amount of the tax required to be remitted, constitutes a separate offense.
Section 1032. Section 59-12-107.1 is amended to read:
59-12-107.1
. Direct payment permit.(1) The commission may issue a direct payment permit to a seller that:
(a) obtains a license under Section 59-12-106;
(b) is required to remit taxes under this chapter by electronic funds transfer in accordance with Subsection 59-12-108(1);
(c) has a record of timely payment of taxes under this chapter as determined by the commission; and
(d) demonstrates to the commission that the seller has the ability to determine the appropriate location of a transaction under Section 59-12-207 for each transaction for which the seller makes a purchase using the direct payment permit.
(2) A direct payment permit may not be used in connection with the following transactions:
(a) a purchase of the following purchased in the same transaction:
(i) prepared food; and
(ii) food and food ingredients;
(b) amounts paid or charged for accommodations and services described in Subsection 59-12-103(1)(i);
(c) amounts paid or charged for admission or user fees under Subsection 59-12-103(1)(f);
(d) a purchase of:
(i) a motor vehicle;
(ii) an aircraft;
(iii) a watercraft;
(iv) a modular home;
(v) a manufactured home; or
(vi) a mobile home;
(e) amounts paid under Subsection 59-12-103(1)(b); or
(f) sales under Subsection 59-12-103(1)(c).
(3) The holder of a direct payment permit shall:
(a) present evidence of the direct payment permit to a seller at the time the holder of the direct payment permit makes a purchase using the direct payment permit;
(b) determine the appropriate location of a transaction under Section 59-12-207 for each transaction for which the holder of the direct payment permit makes a purchase using the direct payment permit;
(c) notwithstanding Section 59-12-107, determine the amount of any sales and use tax due on each transaction for which the holder of the direct payment permit uses the direct payment permit;
(d) report and remit to the commission the sales and use tax described in Subsection (3)(c) at the same time and in the same manner as the holder of the direct payment permit reports and remits a tax under this chapter; and
(e) maintain records:
(i) that indicate the appropriate location of a transaction under Section 59-12-207 for each transaction for which a purchase is made using the direct payment permit; and
(ii) necessary to determine the amount described in Subsection (3)(c) for each transaction for which the holder of the direct payment permit uses the direct payment permit.
(4) A seller that is presented evidence of a direct payment permit at the time of a transaction:
(a) notwithstanding Section 59-12-107, may not collect sales and use tax on the transaction;
(b) shall, for a period of three years from the date the seller files a return with the commission reporting the transaction, retain records to verify that the transaction was made using a direct payment permit; and
(c) notwithstanding Section 59-12-107, is not liable for sales and use tax on the transaction.
(5) The holder of a direct payment permit may calculate the amount the holder of the direct payment permit may retain under Section 59-12-108 on the amount described in Subsection (3)(c):
(a) for each transaction for which the holder of the direct payment permit uses the direct payment permit; and
(b) that the holder of the direct payment permit remits to the commission under this section.
(6) The commission may revoke a direct payment permit issued under this section at any time if the holder of the direct payment permit fails to comply with any provision of this chapter.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to administer this section.
Section 1033. Section 59-12-108 is amended to read:
59-12-108
. Monthly payment -- Amount of tax a seller may retain -- Penalty -- Certain amounts allocated to local taxing jurisdictions.(1) (a) Notwithstanding Section 59-12-107, a seller that has a tax liability under this chapter of $50,000 or more for the previous calendar year shall:
(i) file a return with the commission:
(A) monthly on or before the last day of the month immediately following the month for which the seller collects a tax under this chapter; and
(B) for the month for which the seller collects a tax under this chapter; and
(ii) remit with the return required by Subsection (1)(a)(i) the amount the person is required to remit to the commission for each tax, fee, or charge described in Subsection (1)(b):
(A) if that seller's tax liability under this chapter for the previous calendar year is less than $96,000, by any method permitted by the commission; or
(B) if that seller's tax liability under this chapter for the previous calendar year is $96,000 or more, by electronic funds transfer.
(b) Subsections (1)(a)(i) and (ii) apply to the following taxes, fees, or charges:
(i) a tax under Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act;
(ii) a fee under Section 19-6-716;
(iii) a fee under Section 19-6-805;
(iv) a charge under Section 69-2-5.5; or
(v) a tax under this chapter.
(c) Notwithstanding Subsection (1)(a)(ii) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing for a method for making same-day payments other than by electronic funds transfer if making payments by electronic funds transfer fails.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall establish by rule procedures and requirements for determining the amount a seller is required to remit to the commission under this Subsection (1).
(2) (a) Except as provided in Subsection (3), a seller subject to Subsection (1) or a seller described in Subsection (4) may retain each month the amount allowed by this Subsection (2).
(b) A seller subject to Subsection (1) or a seller described in Subsection (4) may retain each month 1.31% of any amounts the seller is required to remit to the commission:
(i) for a transaction described in Subsection 59-12-103(1) that is subject to a state tax and a local tax imposed in accordance with the following, for the month for which the seller is filing a return in accordance with Subsection (1):
(A) Subsection 59-12-103(2)(a);
(B) Subsection 59-12-103(2)(b);
(C) Subsection 59-12-103(2)(d), except for the state tax and the local tax imposed on the amounts paid or charged for food and food ingredients in accordance with Subsections 59-12-103(2)(d)(i)(C) and (2)(d)(ii); and
(D) Subsection 59-12-103(2)(e); and
(ii) for an agreement sales and use tax.
(c) (i) A seller subject to Subsection (1) or a seller described in Subsection (4) may retain each month the amount calculated under Subsection (2)(c)(ii) for a transaction described in Subsection 59-12-103(1) that is subject to the state tax and the local tax imposed in accordance with Subsection 59-12-103(2)(c).
(ii) For purposes of Subsection (2)(c)(i), the amount a seller may retain is an amount equal to the sum of:
(A) 1.31% of any amounts the seller is required to remit to the commission for:
(I) the state tax and the local tax imposed in accordance with Subsection 59-12-103(2)(c);
(II) the month for which the seller is filing a return in accordance with Subsection (1); and
(III) an agreement sales and use tax; and
(B) 1.31% of the difference between:
(I) the amounts the seller would have been required to remit to the commission:
(Aa) in accordance with Subsection 59-12-103(2)(a) if the transaction had been subject to the state tax and the local tax imposed in accordance with Subsection 59-12-103(2)(a);
(Bb) for the month for which the seller is filing a return in accordance with Subsection (1); and
(Cc) for an agreement sales and use tax; and
(II) the amounts the seller is required to remit to the commission for:
(Aa) the state tax and the local tax imposed in accordance with Subsection 59-12-103(2)(c);
(Bb) the month for which the seller is filing a return in accordance with Subsection (1); and
(Cc) an agreement sales and use tax.
(d) (i) A seller subject to Subsection (1) or a seller described in Subsection (4) may retain each month the amount calculated under Subsection (2)(d)(ii) for a transaction described in Subsection 59-12-103(1) that is subject to the state tax and the local tax imposed on the amounts paid or charged for food and food ingredients in accordance with Subsections 59-12-103(2)(d)(i)(C) and (2)(d)(ii).
(ii) For purposes of Subsection (2)(d)(i), the amount a seller may retain is an amount equal to the sum of:
(A) 1.31% of any amounts the seller is required to remit to the commission for:
(I) the state tax and the local tax imposed on the amounts paid or charged for food and food ingredients in accordance with Subsections 59-12-103(2)(d)(i)(C) and (2)(d)(ii);
(II) the month for which the seller is filing a return in accordance with Subsection (1); and
(III) an agreement sales and use tax; and
(B) 1.31% of the difference between:
(I) the amounts the seller would have been required to remit to the commission:
(Aa) in accordance with Subsections 59-12-103(2)(d)(i)(A) and (2)(d)(ii) if the transaction had been subject to the state tax and the local tax imposed in accordance with Subsections 59-12-103(2)(d)(i)(A) and (2)(d)(ii);
(Bb) for the month for which the seller is filing a return in accordance with Subsection (1); and
(Cc) for an agreement sales and use tax; and
(II) the amounts the seller is required to remit to the commission for:
(Aa) the state tax and the local tax imposed in accordance with Subsections 59-12-103(2)(d)(i)(C) and (2)(d)(ii);
(Bb) the month for which the seller is filing a return in accordance with Subsection (1); and
(Cc) an agreement sales and use tax.
(e) A seller subject to Subsection (1) or a seller described in Subsection (4) may retain each month 1% of any amounts the seller is required to remit to the commission:
(i) for the month for which the seller is filing a return in accordance with Subsection (1); and
(ii) under:
(A) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act;
(B) Subsection 59-12-603(1)(a)(i)(A); or
(C) Subsection 59-12-603(1)(a)(i)(B).
(3) A state government entity that is required to remit taxes monthly in accordance with Subsection (1) may not retain any amount under Subsection (2).
(4) A seller that has a tax liability under this chapter for the previous calendar year of less than $50,000 may:
(a) voluntarily meet the requirements of Subsection (1); and
(b) if the seller voluntarily meets the requirements of Subsection (1), retain the amounts allowed by Subsection (2).
(5) Penalties for late payment shall be as provided in Section 59-1-401.
(6) (a) For any amounts required to be remitted to the commission under this part, the commission shall each month calculate an amount equal to the difference between:
(i) the total amount retained for that month by all sellers had the percentages listed under Subsections (2)(b), (2)(c)(ii), and (2)(d)(ii) been 1.5%; and
(ii) the total amount retained for that month by all sellers at the percentages listed under Subsections (2)(b), (2)(c)(ii), and (2)(d)(ii).
(b) The commission shall each month allocate the amount calculated under Subsection (6)(a) to each county, city, and town on the basis of the proportion of agreement sales and use tax that the commission distributes to each county, city, and town for that month compared to the total agreement sales and use tax that the commission distributes for that month to all counties, cities, and towns.
Section 1034. Section 59-12-110 is amended to read:
59-12-110
. Overpayments, deficiencies, and refunds procedures.(1) (a) As soon as practicable after a return is filed, the commission shall examine the return.
(b) If the commission determines that the correct amount of tax to be remitted is greater or less than the amount shown to be due on the return, the commission shall recompute the tax.
(c) If the amount paid exceeds the amount due, the excess, plus interest as provided in Section 59-1-402, shall be credited or refunded to the taxpayer as provided in Subsection (2).
(d) The commission may not credit or refund to the taxpayer interest on an overpayment under Subsection (1)(c) if the commission determines that the overpayment was made for the purpose of investment.
(2) (a) If a taxpayer pays a tax, penalty, or interest more than once or the commission erroneously receives, collects, or computes any tax, penalty, or interest, including an overpayment described in Subsection (1)(c), the commission shall:
(i) credit the amount of tax, penalty, or interest paid by the taxpayer against any amounts of tax, penalties, or interest the taxpayer owes; and
(ii) refund any balance to the taxpayer or the taxpayer's successors, administrators, executors, or assigns.
(b) Except as provided in Subsections (2)(c) and (d) or Section 19-2-124, a taxpayer shall file a claim with the commission to obtain a refund or credit under this Subsection (2) within three years from the day on which the taxpayer overpaid the tax, penalty, or interest.
(c) Notwithstanding Subsection (2)(b), beginning on July 1, 1998, the commission shall extend the period for a taxpayer to file a claim under Subsection (2)(b) if:
(i) the three-year period under Subsection (2)(b) has not expired; and
(ii) the commission and the taxpayer sign a written agreement:
(A) authorizing the extension; and
(B) providing for the length of the extension.
(d) Notwithstanding Subsection (2)(b), a seller that files a claim for a refund under Subsection 59-12-107 (7)(c) for bad debt shall file the claim with the commission within three years from the date on which the seller could first claim the refund for the bad debt.
(e) A taxpayer may file a claim to obtain a refund or credit under this Subsection (2) regardless of whether the taxpayer received or objected to a notice of deficiency or a notice of assessment as provided in Subsection 59-12-114(1).
(f) A taxpayer may obtain a refund under this Subsection (2) of a tax paid under this chapter on a transaction that is taxable under Section 59-12-103 if:
(i) the sale or use was exempt from sales and use taxes under Section 59-12-104 on the date of purchase; and
(ii) except as provided in Subsection (2)(c), the taxpayer files a claim for a refund with the commission as provided in Subsections (2)(b) through (e).
(g) If the commission denies a claim for a refund or credit under this Subsection (2), the taxpayer may request a redetermination of the denial by filing a petition or request for agency action with the commission as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) If the commission erroneously determines an amount to be due from a taxpayer, the commission shall authorize the amounts to be cancelled upon its records.
(4) (a) Subject to the provisions of Subsection (4)(b), the commission may impose on a deficiency under this section:
(i) a penalty as provided in Section 59-1-401; and
(ii) interest as provided in Section 59-1-402.
(b) The commission may impose a penalty and interest on the entire deficiency if any part of the deficiency is due to:
(i) negligence;
(ii) intentional disregard of law or rule; or
(iii) fraud with intent to evade the tax.
(5) (a) Except as provided in Subsection (5)(b), a taxpayer shall pay a tax deficiency, including penalties or interest under this section, within ten days after the commission provides the taxpayer notice and demand of the deficiency, penalty, or interest.
(b) Notwithstanding Subsection (5)(a), a taxpayer may pay a tax deficiency, penalty, or interest within 30 days after the commission provides the taxpayer notice and demand of the deficiency, penalty, or interest if the commission determines:
(i) that a greater amount was due than was shown on the return; and
(ii) the tax is not in jeopardy.
(6) (a) Except as provided in Subsections (6)(c) through (f), the commission shall assess the amount of taxes imposed by this chapter, and any penalties and interest, within three years after a taxpayer files a return.
(b) Except as provided in Subsections (6)(c) through (f), if the commission does not make an assessment under Subsection (6)(a) within three years, the commission may not commence a proceeding for the collection of the taxes after the expiration of the three-year period.
(c) Notwithstanding Subsections (6)(a) and (b), the commission may make an assessment or commence a proceeding to collect a tax at any time if a deficiency is due to:
(i) fraud; or
(ii) failure to file a return.
(d) Notwithstanding Subsections (6)(a) and (b), beginning on July 1, 1998, the commission may extend the period to make an assessment or to commence a proceeding to collect the tax under this chapter if:
(i) the three-year period under this Subsection (6) has not expired; and
(ii) the commission and the taxpayer sign a written agreement:
(A) authorizing the extension; and
(B) providing for the length of the extension.
(e) If the commission delays an audit at the request of a taxpayer, the commission may make an assessment as provided in Subsection (6)(f) if:
(i) the taxpayer subsequently refuses to agree to an extension request by the commission; and
(ii) the three-year period under this Subsection (6) expires before the commission completes the audit.
(f) An assessment under Subsection (6)(e) shall be:
(i) for the time period for which the commission could not make an assessment because of the expiration of the three-year period; and
(ii) in an amount equal to the difference between:
(A) the commission's estimate of the amount of taxes the taxpayer would have been assessed for the time period described in Subsection (6)(f)(i); and
(B) the amount of taxes the taxpayer actually paid for the time period described in Subsection (6)(f)(i).
Section 1035. Section 59-12-114 is amended to read:
59-12-114
. Taxpayer objections -- Available remedies.(1) A taxpayer may object to a notice of deficiency or notice of assessment issued by the commission by applying to the commission as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) A taxpayer who has not previously adjudicated a tax deficiency as provided in Subsection (1) may object to a final assessment issued by the commission by:
(a) paying the tax; and
(b) filing a claim for a refund as provided in Section 59-12-110.
Section 1036. Section 59-12-207 is amended to read:
59-12-207
. Report of tax collections -- Point of sale when retailer has no permanent place of business or more than one place of business is determined by rule of commission -- Public utilities -- Telecommunications service.(1) Except as provided in Subsection (5), any sales and use taxes collected under this part shall be reported to the commission on forms that accurately identify the location where the transaction resulting in a tax under this chapter is consummated.
(2) Except as provided in Subsection (5), for purposes of this part, the location of where a transaction is consummated:
(a) is determined under rules of the commission if:
(i) a retailer has no permanent place of business in the state; or
(ii) has more than one place of business;
(b) is where a purchaser receives the following products or services sold by a public utility, as defined in Section 54-2-1, to that purchaser:
(i) gas; or
(ii) electricity; and
(c) is as provided in Section 59-12-207.4 for a service described in Section 59-12-207.4.
(3) The form required under Subsection (1) shall:
(a) accompany the sales and use tax returns required under this chapter; and
(b) identify the location of any transaction consummated during the return filing period.
(4) Subject to Subsection (5) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules regarding the determination of the location of where under Subsection (2)(a) a transaction is consummated.
(5) Notwithstanding Subsections (1) and (2), mobile telecommunications service is subject to the sourcing rules provided in the Mobile Telecommunications Sourcing Act, 4 U.S.C. Sec. 116 et seq.
Section 1037. Section 59-12-208.1 is amended to read:
59-12-208.1
. Enactment or repeal of tax -- Effective date -- Notice requirements.(1) For purposes of this section:
(a) "Annexation" means an annexation to:
(i) a county under Title 17, Chapter 2, Annexation to County; or
(ii) a city or town under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a county, city, or town.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after July 1, 2004, a county, city, or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the county, city, or town.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the county, city, or town will enact or repeal a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the county, city, or town enacts the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Section 59-12-204.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Section 59-12-204.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the county, city, or town that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment or repeal of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) the rate of the tax described in Subsection (3)(b)(i).
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Section 59-12-204.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Section 59-12-204.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1038. Section 59-12-209 is amended to read:
59-12-209
. Participation of counties, cities, and towns in administration and enforcement of local option sales and use tax.(1) Notwithstanding the provisions of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, a county, city, or town shall not have the right to any of the following, except as specifically allowed by Subsection (2) and Section 59-12-210:
(a) to inspect, review, or have access to any taxpayer sales and use tax records; or
(b) to be informed of, participate in, intervene in, or appeal from any adjudicative proceeding commenced pursuant to Section [63-46b-3] 63G-4-201 to determine the liability of any taxpayer for sales and use tax imposed pursuant to Title 59, Chapter 12, Sales and Use Tax Act.
(2) Counties, cities, and towns shall have access to records and information on file with the commission, and shall have the right to notice of, and such rights to intervene in or to appeal from, a proposed final agency action of the commission as follows:
(a) If the commission, following a formal adjudicative proceeding commenced pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, proposes to take final agency action that would reduce the amount of sales and use tax liability alleged in the notice of deficiency, the commission shall provide notice of a proposed agency action to each qualified county, city, and town.
(b) For purposes of this section, a county, city, or town is a qualified county, city, or town if a proposed final agency action reduces the local option sales and use tax distributable to that county, city, or town by more than $10,000 below the amount of the tax that would have been distributable to that county, city, or town had a notice of deficiency, as described in Section 59-12-110, not been reduced.
(c) A qualified county, city, or town may designate a representative who shall have the right to review the record of the formal hearing and any other commission records relating to a proposed final agency action subject to the confidentiality provisions of Section 59-1-403.
(d) No later than ten days after receiving the notice of the commission's proposed final agency action, a qualified county, city, or town may file a notice of intervention with the commission.
(e) No later than 20 days after filing a notice of intervention, if a qualified county, city, or town objects to the proposed final agency action, that qualified county, city, or town may file a petition for reconsideration with the commission and shall serve copies of the petition on the taxpayer and the appropriate division in the commission.
(f) The taxpayer and appropriate division in the commission may each file a response to the petition for reconsideration within 20 days of receipt of the petition for reconsideration.
(g) After consideration of the petition for reconsideration and any response, and any additional proceeding the commission considers appropriate, the commission may affirm, modify, or amend its proposed final agency action. The taxpayer and any qualified county, city, or town that has filed a petition for reconsideration may appeal the final agency action.
Section 1039. Section 59-12-210 is amended to read:
59-12-210
. Commission to provide data to counties.(1) (a) The commission shall provide to each county the sales and use tax collection data necessary to verify that the local sales and use tax revenues collected by the commission are distributed to each county, city, and town in accordance with Sections 59-12-205, 59-12-206, 59-12-207, and 59-12-207.4.
(b) The data described in Subsection (1)(a) shall include the commission's reports of seller sales, sales and use tax distribution reports, and a breakdown of local revenues.
(2) (a) In addition to the access to information provided in Subsection (1) and Section 59-12-109, the commission shall provide a county, city, or town with copies of returns and other information required by this chapter relating to a tax under this chapter.
(b) The information described in Subsection (2)(a) is available only in official matters and must be requested in writing by the chief executive officer or the chief executive officer's designee.
(c) The request described in Subsection (2)(b) shall specifically indicate the information being sought and how the information will be used.
(d) Information received pursuant to the request described in Subsection (2)(b) shall be:
(i) classified as private or protected under Section [63-2-302] 63G-2-302 or [63-2-304] 63G-2-305; and
(ii) subject to the confidentiality provisions of Section 59-1-403.
Section 1040. Section 59-12-301 is amended to read:
59-12-301
. Transient room tax -- Rate -- Expenditure of revenues -- Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements.(1) (a) A county legislative body may impose a tax on charges for the accommodations and services described in Subsection 59-12-103(1)(i) at a rate of not to exceed 4.25% beginning on or after October 1, 2006.
(b) Subject to Subsection (2), the revenues raised from the tax imposed under Subsection (1)(a) shall be used for the purposes listed in Section 17-31-2.
(c) The tax imposed under Subsection (1)(a) shall be in addition to the tax imposed under Part 6, Tourism, Recreation, Cultural, and Convention Facilities Tax.
(2) If a county legislative body of a county of the first class imposes a tax under this section, beginning on July 1, 2007, and ending on June 30, 2027, each year the first 15% of the revenues collected from the tax authorized by Subsection (1)(a) within that county shall be:
(a) deposited into the Transient Room Tax Fund created by Section [63-38f-2203] 63M-1-2203; and
(b) expended as provided in Section [63-38f-2203] 63M-1-2203.
(3) Subject to Subsection (4), a county legislative body:
(a) may increase or decrease the tax authorized under this part; and
(b) shall regulate the tax authorized under this part by ordinance.
(4) (a) For purposes of this Subsection (4):
(i) "Annexation" means an annexation to a county under Title 17, Chapter 2, Annexation to County.
(ii) "Annexing area" means an area that is annexed into a county.
(b) (i) Except as provided in Subsection (4)(c), if, on or after July 1, 2004, a county enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (4)(b)(ii) from the county.
(ii) The notice described in Subsection (4)(b)(i)(B) shall state:
(A) that the county will enact or repeal a tax or change the rate of a tax under this part;
(B) the statutory authority for the tax described in Subsection (4)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (4)(b)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (4)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (4)(b)(i), for a transaction described in Subsection (4)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under this section.
(ii) Notwithstanding Subsection (4)(b)(i), for a transaction described in Subsection (4)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under this section.
(iii) Subsections (4)(c)(i) and (ii) apply to transactions subject to a tax under Subsection 59-12-103(1)(i).
(d) (i) Except as provided in Subsection (4)(e), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or a change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (4)(d)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (4)(d)(i)(B) shall state:
(A) that the annexation described in Subsection (4)(d)(i) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (4)(d)(ii)(A);
(C) the effective date of the tax described in Subsection(4)(d)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (4)(d)(ii)(A), the rate of the tax.
(e) (i) Notwithstanding Subsection(4)(d)(i), for a transaction described in Subsection (4)(e)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under this section.
(ii) Notwithstanding Subsection(4)(d)(i), for a transaction described in Subsection (4)(e)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under this section.
(iii) Subsections(4)(e)(i) and (ii) apply to transactions subject to a tax under Subsection 59-12-103(1)(i).
Section 1041. Section 59-12-403 (Superseded 01/01/08) is amended to read:
59-12-403 (Superseded 01/01/08)
. Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements -- Administration, collection, and enforcement of tax.(1) For purposes of this section:
(a) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a city or town.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after July 1, 2004, a city or town enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the city or town.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the city or town will enact or repeal a tax or change the rate of a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the city or town enacts the tax or changes the rate of the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the city or town that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) if the city or town enacts the tax or changes the rate of the tax described in Subsection (3)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(4) (a) Except as provided in Subsection (4)(b), a tax authorized under this part shall be administered, collected, and enforced in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies.
(b) Notwithstanding Subsection (4)(a), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
Section 1042. Section 59-12-403 (Effective 01/01/08) is amended to read:
59-12-403 (Effective 01/01/08)
. Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements -- Administration, collection, and enforcement of tax.(1) For purposes of this section:
(a) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a city or town.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after April 1, 2008, a city or town enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the city or town.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the city or town will enact or repeal a tax or change the rate of a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the city or town enacts the tax or changes the rate of the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the city or town that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) if the city or town enacts the tax or changes the rate of the tax described in Subsection (3)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-401; or
(II) Section 59-12-402.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(4) (a) Except as provided in Subsection (4)(b), a tax authorized under this part shall be administered, collected, and enforced in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies.
(b) Notwithstanding Subsection (4)(a), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
Section 1043. Section 59-12-504 (Superseded 01/01/08) is amended to read:
59-12-504 (Superseded 01/01/08)
. Enactment or repeal of tax -- Effective date -- Notice requirements -- Administration, collection, and enforcement of tax.(1) For purposes of this section:
(a) "Annexation" means an annexation to:
(i) a county under Title 17, Chapter 2, Annexation to County; or
(ii) a city or town under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a county, city, or town.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after July 1, 2004, a county, city, or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the county, city, or town.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the county, city, or town will enact or repeal a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the county, city, or town enacts the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the county, city, or town that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment or repeal of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) the rate of the tax described in Subsection (3)(b)(i).
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(4) (a) Except as provided in Subsection (4)(b), a tax authorized under this part shall be administered, collected, and enforced in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies.
(b) Notwithstanding Subsection (4)(a), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
Section 1044. Section 59-12-504 (Effective 01/01/08) is amended to read:
59-12-504 (Effective 01/01/08)
. Enactment or repeal of tax -- Effective date -- Notice requirements -- Administration, collection, and enforcement of tax.(1) For purposes of this section:
(a) "Annexation" means an annexation to:
(i) a county under Title 17, Chapter 2, Annexation to County; or
(ii) a city or town under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a county, city, or town.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after April 1, 2008, a county, city, or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the county, city, or town.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the county, city, or town will enact or repeal a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the county, city, or town enacts the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the county, city, or town that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment or repeal of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) the rate of the tax described in Subsection (3)(b)(i).
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under:
(I) Section 59-12-501; or
(II) Section 59-12-502.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(4) (a) Except as provided in Subsection (4)(b), a tax authorized under this part shall be administered, collected, and enforced in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies.
(b) Notwithstanding Subsection (4)(a), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
Section 1045. Section 59-12-703 (Superseded 01/01/08) is amended to read:
59-12-703 (Superseded 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Uses of tax monies -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) (i) A county legislative body may submit an opinion question to the residents of that county, by majority vote of all members of the legislative body, so that each resident of the county, except residents in municipalities that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, has an opportunity to express the resident's opinion on the imposition of a local sales and use tax of .1% on the transactions described in Subsection 59-12-103(1) located within the county, to fund recreational and zoological facilities, botanical, cultural, and zoological organizations, and rural radio stations, in that county.
(ii) Notwithstanding Subsection (1)(a)(i), a county legislative body may not impose a tax under this section on:
(A) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(B) sales and uses within municipalities that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities; and
(C) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(b) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) The election shall follow the procedures outlined in Title 11, Chapter 14, Local Government Bonding Act.
(2) (a) If the county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax as prescribed in Subsection (1)(a), the county legislative body may impose the tax by a majority vote of all members of the legislative body on the transactions:
(i) described in Subsection (1); and
(ii) within the county, including the cities and towns located in the county, except those cities and towns that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities.
(b) A county legislative body may revise county ordinances to reflect statutory changes to the distribution formula or eligible recipients of revenues generated from a tax imposed under Subsection (2)(a):
(i) after the county legislative body submits an opinion question to residents of the county in accordance with Subsection (1) giving them the opportunity to express their opinion on the proposed revisions to county ordinances; and
(ii) if the county legislative body determines that a majority of those voting on the opinion question have voted in favor of the revisions.
(3) The monies generated from any tax imposed under Subsection (2) shall be used for funding:
(a) recreational and zoological facilities located within the county or a city or town located in the county, except a city or town that has already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities; and
(b) ongoing operating expenses of:
(i) recreational facilities described in Subsection (3)(a);
(ii) botanical, cultural, and zoological organizations within the county; and
(iii) rural radio stations within the county.
(4) (a) A tax authorized under this part shall be:
(i) except as provided in Subsection (4)(b), administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies; and
(ii) levied for a period of ten years and may be reauthorized at the end of the ten-year period in accordance with this section.
(b) Notwithstanding Subsection (4)(a)(i), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a county under Title 17, Chapter 2, Annexation to County.
(ii) "Annexing area" means an area that is annexed into a county.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a county enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the county.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the county will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the county enacts the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (5)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1046. Section 59-12-703 (Effective 01/01/08) is amended to read:
59-12-703 (Effective 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Uses of tax monies -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) (i) A county legislative body may submit an opinion question to the residents of that county, by majority vote of all members of the legislative body, so that each resident of the county, except residents in municipalities that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, has an opportunity to express the resident's opinion on the imposition of a local sales and use tax of .1% on the transactions described in Subsection 59-12-103(1) located within the county, to fund recreational and zoological facilities, botanical, cultural, and zoological organizations, and rural radio stations, in that county.
(ii) Notwithstanding Subsection (1)(a)(i), a county legislative body may not impose a tax under this section on:
(A) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(B) sales and uses within municipalities that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities;
(C) amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(D) except as provided in Subsection (1)(c), amounts paid or charged for food and food ingredients.
(b) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) A county legislative body imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(d) The election shall follow the procedures outlined in Title 11, Chapter 14, Local Government Bonding Act.
(2) (a) If the county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax as prescribed in Subsection (1)(a), the county legislative body may impose the tax by a majority vote of all members of the legislative body on the transactions:
(i) described in Subsection (1); and
(ii) within the county, including the cities and towns located in the county, except those cities and towns that have already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities.
(b) A county legislative body may revise county ordinances to reflect statutory changes to the distribution formula or eligible recipients of revenues generated from a tax imposed under Subsection (2)(a):
(i) after the county legislative body submits an opinion question to residents of the county in accordance with Subsection (1) giving them the opportunity to express their opinion on the proposed revisions to county ordinances; and
(ii) if the county legislative body determines that a majority of those voting on the opinion question have voted in favor of the revisions.
(3) The monies generated from any tax imposed under Subsection (2) shall be used for funding:
(a) recreational and zoological facilities located within the county or a city or town located in the county, except a city or town that has already imposed a sales and use tax under Part 14, City or Town Option Funding For Botanical, Cultural, Recreational, and Zoological Organizations or Facilities; and
(b) ongoing operating expenses of:
(i) recreational facilities described in Subsection (3)(a);
(ii) botanical, cultural, and zoological organizations within the county; and
(iii) rural radio stations within the county.
(4) (a) A tax authorized under this part shall be:
(i) except as provided in Subsection (4)(b), administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies; and
(ii) levied for a period of ten years and may be reauthorized at the end of the ten-year period in accordance with this section.
(b) Notwithstanding Subsection (4)(a)(i), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a county under Title 17, Chapter 2, Annexation to County.
(ii) "Annexing area" means an area that is annexed into a county.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a county enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the county.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the county will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the county enacts the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (5)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1047. Section 59-12-806 is amended to read:
59-12-806
. Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements.(1) For purposes of this section:
(a) "Annexation" means an annexation to:
(i) a county under Title 17, Chapter 2, Annexation to County; or
(ii) a city under Title 10, Chapter 2, Part 4, Annexation.
(b) "Annexing area" means an area that is annexed into a county or city.
(2) (a) Except as provided in Subsection (2)(c) or (d), if, on or after July 1, 2004, a county or city enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (2)(b) from the county or city.
(b) The notice described in Subsection (2)(a)(ii) shall state:
(i) that the county or city will enact or repeal a tax or change the rate of a tax under this part;
(ii) the statutory authority for the tax described in Subsection (2)(b)(i);
(iii) the effective date of the tax described in Subsection (2)(b)(i); and
(iv) if the county or city enacts the tax or changes the rate of the tax described in Subsection (2)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-802; or
(II) Section 59-12-804.
(ii) Notwithstanding Subsection (2)(a), for a transaction described in Subsection (2)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-802; or
(II) Section 59-12-804.
(iii) Subsections (2)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (2)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (2)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (2)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(3) (a) Except as provided in Subsection (3)(c) or (d), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(i) on the first day of a calendar quarter; and
(ii) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (3)(b) from the county or city that annexes the annexing area.
(b) The notice described in Subsection (3)(a)(ii) shall state:
(i) that the annexation described in Subsection (3)(a) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(ii) the statutory authority for the tax described in Subsection (3)(b)(i);
(iii) the effective date of the tax described in Subsection (3)(b)(i); and
(iv) if the county or city enacts the tax or changes the rate of the tax described in Subsection (3)(b)(i), the rate of the tax.
(c) (i) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under:
(I) Section 59-12-802; or
(II) Section 59-12-804.
(ii) Notwithstanding Subsection (3)(a), for a transaction described in Subsection (3)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under:
(I) Section 59-12-802; or
(II) Section 59-12-804.
(iii) Subsections (3)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (3)(a), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (3)(a) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of a tax under Subsection (3)(a).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1048. Section 59-12-902 is amended to read:
59-12-902
. Sales tax refund for qualified emergency food agencies -- Use of amounts received as refund -- Administration -- Rulemaking authority.(1) Beginning on January 1, 1998, a qualified emergency food agency may claim a sales tax refund as provided in this section on the pounds of food and food ingredients donated to the qualified emergency food agency.
(2) (a) Subject to the adjustments provided for in Subsection (2)(b), a qualified emergency food agency may claim a refund in an amount equal to the pounds of food and food ingredients donated to the qualified emergency food agency multiplied by:
(i) $1.70; and
(ii) the sum of:
(A) 4.75%; and
(B) the sum of the tax rates provided for in Subsection (2)(b).
(b) Tax rates authorized under the following apply to Subsection (2)(a)(ii)(B):
(i) the tax rate authorized by Section 59-12-204;
(ii) the tax rate authorized by Section 59-12-501 or Section 59-12-1001, but only if all of the counties, cities, and towns in the state impose the tax:
(A) under Section 59-12-501; or
(B) under Section 59-12-1001;
(iii) the tax rate authorized by Section 59-12-502, but only if all of the counties, cities, and towns in the state impose the tax under Section 59-12-502;
(iv) the tax rate authorized by Section 59-12-703, but only if all of the counties in the state impose the tax under Section 59-12-703; and
(v) the tax rate authorized by Section 59-12-1102, but only if all of the counties in the state impose the tax under Section 59-12-1102.
(c) Beginning on January 1, 1999, the commission shall annually adjust on or before the second Monday of February the $1.70 provided in Subsection (2)(a)(i) by a percentage equal to the percentage difference between the food at home category of the Consumer Price Index for:
(i) the preceding calendar year; and
(ii) calendar year 1997.
(3) To claim a sales tax refund under this section, a qualified emergency food agency shall file an application with the commission.
(4) A qualified emergency food agency may use amounts received as a sales tax refund under this section only for a purpose related to:
(a) warehousing and distributing food and food ingredients to other agencies and organizations providing food and food ingredients to low-income persons; or
(b) providing food and food ingredients directly to low-income persons.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules providing procedures for implementing the sales tax refund under this section, including:
(a) standards for determining and verifying the amount of the sales tax refund; and
(b) procedures for a qualified emergency food agency to apply for a sales tax refund, including the frequency with which a qualified emergency food agency may apply for a sales tax refund.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Division of Housing and Community Development may establish rules providing for the certification of emergency food agencies to claim a refund under this part.
Section 1049. Section 59-12-1001 (Superseded 01/01/08) is amended to read:
59-12-1001 (Superseded 01/01/08)
. Authority to impose tax for highways or to fund a system for public transit -- Base -- Rate -- Ordinance requirements -- Voter approval requirements -- Election requirements -- Notice of election requirements -- Exceptions to voter approval requirements -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) A city or town in which the transactions described in Subsection 59-12-103(1) are not subject to a sales and use tax under Section 59-12-501 may as provided in this part impose a sales and use tax of .25% on the transactions described in Subsection 59-12-103(1) located within the city or town.
(b) Notwithstanding Subsection (1)(a), a city or town may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; and
(ii) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(2) (a) A city or town imposing a tax under this part may use the revenues generated by the tax:
(i) for the construction and maintenance of highways under the jurisdiction of the city or town imposing the tax;
(ii) subject to Subsection (2)(b), to fund a system for public transit; or
(iii) for a combination of the purposes described in Subsections (2)(a)(i) and (ii).
(b) (i) For purposes of Subsection (2)(a)(ii) and except as provided in Subsection (2)(b)(ii), "public transit" is as defined in Section 17B-2a-802.
(ii) Notwithstanding Subsection (2)(b)(i), "public transit" does not include a fixed guideway system.
(3) To impose a tax under this part, the governing body of the city or town shall:
(a) pass an ordinance approving the tax; and
(b) except as provided in Subsection (7), obtain voter approval for the tax as provided in Subsection (4).
(4) To obtain voter approval for a tax under Subsection (3)(b), a city or town shall:
(a) hold an election during:
(i) a regular general election; or
(ii) a municipal general election; and
(b) publish notice of the election:
(i) 15 days or more before the day on which the election is held; and
(ii) in a newspaper of general circulation in the city or town.
(5) An ordinance approving a tax under this part shall provide an effective date for the tax as provided in Subsection (6).
(6) (a) For purposes of this Subsection (6):
(i) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a city or town.
(b) (i) Except as provided in Subsection (6)(c) or (d), if, on or after July 1, 2004, a city or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (6)(b)(ii) from the city or town.
(ii) The notice described in Subsection (6)(b)(i)(B) shall state:
(A) that the city or town will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (6)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (6)(b)(ii)(A); and
(D) if the city or town enacts the tax described in Subsection (6)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (6)(b)(i), for a transaction described in Subsection (6)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (6)(b)(i), for a transaction described in Subsection (6)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (6)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (6)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (6)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (6)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (6)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (6)(e)(ii) from the city or town that annexes the annexing area.
(ii) The notice described in Subsection (6)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (6)(e)(i) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (6)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (6)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (6)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (6)(e)(i), for a transaction described in Subsection (6)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (6)(e)(i), for a transaction described in Subsection (6)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (6)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (6)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (6)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (6)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(7) (a) Except as provided in Subsection (7)(b), a city or town is not subject to the voter approval requirements of Subsection (3)(b) if:
(i) on or before January 1, 1996, the city or town imposed a license fee or tax on businesses based on gross receipts pursuant to Section 10-1-203; or
(ii) the city or town:
(A) on or before June 30, 2002, obtained voter approval in accordance with Subsection (3)(b) to impose a tax under this part for a purpose described in Subsection (2)(a)(i); and
(B) on or after July 1, 2002, uses the revenues generated by a tax under this part for a purpose described in Subsection (2)(a).
(b) Notwithstanding Subsection (7)(a), the exception from the voter approval requirements in Subsection (7)(a)(i) does not apply to a city or town that, on or before January 1, 1996, imposed a license fee or tax on only one class of businesses based on gross receipts pursuant to Section 10-1-203.
Section 1050. Section 59-12-1001 (Effective 01/01/08) is amended to read:
59-12-1001 (Effective 01/01/08)
. Authority to impose tax for highways or to fund a system for public transit -- Base -- Rate -- Ordinance requirements -- Voter approval requirements -- Election requirements -- Notice of election requirements -- Exceptions to voter approval requirements -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) A city or town in which the transactions described in Subsection 59-12-103(1) are not subject to a sales and use tax under Section 59-12-501 may as provided in this part impose a sales and use tax of:
(i) beginning on January 1, 1998, and ending on December 31, 2007, .25% on the transactions described in Subsection 59-12-103(1) located within the city or town; or
(ii) beginning on January 1, 2008, .30% on the transactions described in Subsection 59-12-103(1) located within the city or town.
(b) Notwithstanding Subsection (1)(a), a city or town may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(ii) amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(iii) except as provided in Subsection (1)(d), amounts paid or charged for food and food ingredients.
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(d) A city or town imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(2) (a) A city or town imposing a tax under this part may use the revenues generated by the tax:
(i) for the construction and maintenance of highways under the jurisdiction of the city or town imposing the tax;
(ii) subject to Subsection (2)(b), to fund a system for public transit; or
(iii) for a combination of the purposes described in Subsections (2)(a)(i) and (ii).
(b) (i) For purposes of Subsection (2)(a)(ii) and except as provided in Subsection (2)(b)(ii), "public transit" is as defined in Section 17B-2a-802.
(ii) Notwithstanding Subsection (2)(b)(i), "public transit" does not include a fixed guideway system.
(3) To impose a tax under this part, the governing body of the city or town shall:
(a) pass an ordinance approving the tax; and
(b) except as provided in Subsection (7) or (8), obtain voter approval for the tax as provided in Subsection (4).
(4) To obtain voter approval for a tax under Subsection (3)(b), a city or town shall:
(a) hold an election during:
(i) a regular general election; or
(ii) a municipal general election; and
(b) publish notice of the election:
(i) 15 days or more before the day on which the election is held; and
(ii) in a newspaper of general circulation in the city or town.
(5) An ordinance approving a tax under this part shall provide an effective date for the tax as provided in Subsection (6).
(6) (a) For purposes of this Subsection (6):
(i) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a city or town.
(b) (i) Except as provided in Subsection (6)(c) or (d), if, on or after April 1, 2008, a city or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (6)(b)(ii) from the city or town.
(ii) The notice described in Subsection (6)(b)(i)(B) shall state:
(A) that the city or town will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (6)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (6)(b)(ii)(A); and
(D) if the city or town enacts the tax described in Subsection (6)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (6)(b)(i), for a transaction described in Subsection (6)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (6)(b)(i), for a transaction described in Subsection (6)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (6)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (6)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (6)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (6)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (6)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (6)(e)(ii) from the city or town that annexes the annexing area.
(ii) The notice described in Subsection (6)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (6)(e)(i) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (6)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (6)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (6)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (6)(e)(i), for a transaction described in Subsection (6)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (6)(e)(i), for a transaction described in Subsection (6)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (6)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (6)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (6)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (6)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(7) (a) Except as provided in Subsection (7)(b), a city or town is not subject to the voter approval requirements of Subsection (3)(b) if:
(i) on or before January 1, 1996, the city or town imposed a license fee or tax on businesses based on gross receipts pursuant to Section 10-1-203; or
(ii) the city or town:
(A) on or before June 30, 2002, obtained voter approval in accordance with Subsection (3)(b) to impose a tax under this part for a purpose described in Subsection (2)(a)(i); and
(B) on or after July 1, 2002, uses the revenues generated by a tax under this part for a purpose described in Subsection (2)(a).
(b) Notwithstanding Subsection (7)(a), the exception from the voter approval requirements in Subsection (7)(a)(i) does not apply to a city or town that, on or before January 1, 1996, imposed a license fee or tax on only one class of businesses based on gross receipts pursuant to Section 10-1-203.
(8) A city or town is not subject to the voter approval requirements of Subsection (3)(b) if:
(a) on December 31, 2007, the city or town imposes a tax of .25% under this section; and
(b) on or after January 1, 2008, the city or town increases the tax rate under this section to .30%.
Section 1051. Section 59-12-1102 is amended to read:
59-12-1102
. Base -- Rate -- Imposition of tax -- Distribution of revenue -- Administration -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) (i) Subject to Subsections (2) through (5), and in addition to any other tax authorized by this chapter, a county may impose by ordinance a county option sales and use tax of .25% upon the transactions described in Subsection 59-12-103(1).
(ii) Notwithstanding Subsection (1)(a)(i), a county may not impose a tax under this section on:
(A) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; and
(B) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b) unless all of the counties in the state impose a tax under this section.
(b) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) The county option sales and use tax under this section shall be imposed:
(i) upon transactions that are located within the county, including transactions that are located within municipalities in the county; and
(ii) except as provided in Subsection (1)(d) or (5), beginning on the first day of January:
(A) of the next calendar year after adoption of the ordinance imposing the tax if the ordinance is adopted on or before May 25; or
(B) of the second calendar year after adoption of the ordinance imposing the tax if the ordinance is adopted after May 25.
(d) Notwithstanding Subsection (1)(c)(ii), the county option sales and use tax under this section shall be imposed:
(i) beginning January 1, 1998, if an ordinance adopting the tax imposed on or before September 4, 1997; or
(ii) beginning January 1, 1999, if an ordinance adopting the tax is imposed during 1997 but after September 4, 1997.
(2) (a) Before imposing a county option sales and use tax under Subsection (1), a county shall hold two public hearings on separate days in geographically diverse locations in the county.
(b) (i) At least one of the hearings required by Subsection (2)(a) shall have a starting time of no earlier than 6 p.m.
(ii) The earlier of the hearings required by Subsection (2)(a) shall be no less than seven days after the day the first advertisement required by Subsection (2)(c) is published.
(c) (i) Before holding the public hearings required by Subsection (2)(a), the county shall advertise in a newspaper of general circulation in the county:
(A) its intent to adopt a county option sales and use tax;
(B) the date, time, and location of each public hearing; and
(C) a statement that the purpose of each public hearing is to obtain public comments regarding the proposed tax.
(ii) The advertisement shall be published once each week for the two weeks preceding the earlier of the two public hearings.
(iii) The advertisement shall be no less than 1/8 page in size, and the type used shall be no smaller than 18 point and surrounded by a 1/4-inch border.
(iv) The advertisement may not be placed in that portion of the newspaper where legal notices and classified advertisements appear.
(v) Whenever possible:
(A) the advertisement shall appear in a newspaper that is published at least five days a week, unless the only newspaper in the county is published less than five days a week; and
(B) the newspaper selected shall be one of general interest and readership in the community, and not one of limited subject matter.
(d) The adoption of an ordinance imposing a county option sales and use tax is subject to a local referendum election as provided in Title 20A, Chapter 7, Part 6, Local Referenda - Procedures, except that:
(i) notwithstanding Subsection 20A-7-609(2)(a), the county clerk shall hold a referendum election that qualifies for the ballot on the earlier of the next regular general election date or the next municipal general election date more than 155 days after adoption of an ordinance under this section;
(ii) for 1997 only, the 120-day period in Subsection 20A-7-606(1) shall be 30 days; and
(iii) the deadlines in Subsections 20A-7-606(2) and (3) do not apply, and the clerk shall take the actions required by those subsections before the referendum election.
(3) (a) If the aggregate population of the counties imposing a county option sales and use tax under Subsection (1) is less than 75% of the state population, the tax levied under Subsection (1) shall be distributed to the county in which the tax was collected.
(b) If the aggregate population of the counties imposing a county option sales and use tax under Subsection (1) is greater than or equal to 75% of the state population:
(i) 50% of the tax collected under Subsection (1) in each county shall be distributed to the county in which the tax was collected; and
(ii) except as provided in Subsection (3)(c), 50% of the tax collected under Subsection (1) in each county shall be distributed proportionately among all counties imposing the tax, based on the total population of each county.
(c) If the amount to be distributed annually to a county under Subsection (3)(b)(ii), when combined with the amount distributed to the county under Subsection (3)(b)(i), does not equal at least $75,000, then:
(i) the amount to be distributed annually to that county under Subsection (3)(b)(ii) shall be increased so that, when combined with the amount distributed to the county under Subsection (3)(b)(i), the amount distributed annually to the county is $75,000; and
(ii) the amount to be distributed annually to all other counties under Subsection (3)(b)(ii) shall be reduced proportionately to offset the additional amount distributed under Subsection (3)(c)(i).
(d) The commission shall establish rules to implement the distribution of the tax under Subsections (3)(a), (b), and (c).
(e) Notwithstanding Subsections (3)(a) and (b), if a county imposes a tax under this section on any amounts paid or charged by a seller that collects a tax in accordance with Subsection 59-12-107(1)(b), the revenues generated by the tax shall be distributed as provided in Subsection 59-12-103(3)(c).
(4) (a) Except as provided in Subsection (4)(b) or (c), a tax authorized under this part shall be administered, collected, and enforced in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies.
(b) Notwithstanding Subsection (4)(a), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
(c) Notwithstanding Subsection (4)(a), the fee charged by the commission under Section 59-12-206 shall be based on the distribution amounts resulting after all the applicable distribution calculations under Subsection (3) have been made.
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a county under Title 17, Chapter 2, Annexation to County.
(ii) "Annexing area" means an area that is annexed into a county.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a county enacts or repeals a tax under this part:
(A) (I) the enactment shall take effect as provided in Subsection (1)(c); or
(II) the repeal shall take effect on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the county.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the county will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the county enacts the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (5)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1052. Section 59-12-1302 (Superseded 01/01/08) is amended to read:
59-12-1302 (Superseded 01/01/08)
. Authority to impose -- Base -- Rate -- Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements.(1) Beginning on or after January 1, 1998, the governing body of a town may impose a tax as provided in this part in an amount that does not exceed 1%.
(2) A town may impose a tax as provided in this part if the town imposed a license fee or tax on businesses based on gross receipts under Section 10-1-203 on or before January 1, 1996.
(3) A town imposing a tax under this section shall:
(a) except as provided in Subsection (4), impose the tax on the transactions described in Subsection 59-12-103(1) located within the town; and
(b) provide an effective date for the tax as provided in Subsection (5).
(4) (a) Notwithstanding Subsection (3)(a), a town may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; and
(ii) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(b) For purposes of this Subsection (4), the location of a transaction shall be determined in accordance with Section 59-12-207.
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a town.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a town enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the town.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the town will enact or repeal a tax or change the rate of a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the town enacts the tax or changes the rate of the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under Subsection (1).
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1).
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the town that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) if the town enacts the tax or changes the rate of the tax described in Subsection (5)(e)(ii)(A), the rate of the tax.
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under Subsection (1).
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1).
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(6) The commission shall:
(a) except as provided in Subsection (6)(c), distribute the revenues generated by the tax under this section to the town imposing the tax;
(b) except as provided in Subsection (7), administer, collect, and enforce the tax authorized under this section in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies; and
(c) deduct from the distribution under Subsection (6)(a) an administrative charge for collecting the tax as provided in Section 59-12-206.
(7) Notwithstanding Subsection (6)(b), a tax under this section is not subject to Subsections 59-12-205(2) through (7).
Section 1053. Section 59-12-1302 (Effective 01/01/08) is amended to read:
59-12-1302 (Effective 01/01/08)
. Imposition of tax -- Base -- Rate -- Enactment or repeal of tax -- Tax rate change -- Effective date -- Notice requirements.(1) Beginning on or after January 1, 1998, the governing body of a town may impose a tax as provided in this part in an amount that does not exceed 1%.
(2) A town may impose a tax as provided in this part if the town imposed a license fee or tax on businesses based on gross receipts under Section 10-1-203 on or before January 1, 1996.
(3) A town imposing a tax under this section shall:
(a) except as provided in Subsection (4), impose the tax on the transactions described in Subsection 59-12-103(1) located within the town; and
(b) provide an effective date for the tax as provided in Subsection (5).
(4) (a) Notwithstanding Subsection (3)(a), a town may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(ii) amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(iii) except as provided in Subsection (4)(c), amounts paid or charged for food and food ingredients.
(b) For purposes of this Subsection (4), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) A town imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a town.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a town enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the town.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the town will enact or repeal a tax or change the rate of a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the town enacts the tax or changes the rate of the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under Subsection (1).
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1).
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the town that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) if the town enacts the tax or changes the rate of the tax described in Subsection (5)(e)(ii)(A), the rate of the tax.
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax or the tax rate increase; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax or the tax rate increase imposed under Subsection (1).
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax or the tax rate decrease; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1).
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(6) The commission shall:
(a) except as provided in Subsection (6)(c), distribute the revenues generated by the tax under this section to the town imposing the tax;
(b) except as provided in Subsection (7), administer, collect, and enforce the tax authorized under this section in accordance with:
(i) the same procedures used to administer, collect, and enforce the tax under:
(A) Part 1, Tax Collection; or
(B) Part 2, Local Sales and Use Tax Act; and
(ii) Chapter 1, General Taxation Policies; and
(c) deduct from the distribution under Subsection (6)(a) an administrative charge for collecting the tax as provided in Section 59-12-206.
(7) Notwithstanding Subsection (6)(b), a tax under this section is not subject to Subsections 59-12-205(2) through (7).
Section 1054. Section 59-12-1402 (Superseded 01/01/08) is amended to read:
59-12-1402 (Superseded 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Uses of tax monies -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) (i) Subject to Subsection (6), beginning on January 1, 2003, a city or town legislative body subject to this part may submit an opinion question to the residents of that city or town, by majority vote of all members of the legislative body, so that each resident of the city or town has an opportunity to express the resident's opinion on the imposition of a local sales and use tax of .1% on the transactions described in Subsection 59-12-103(1) located within the city or town, to fund recreational and zoological facilities and botanical, cultural, and zoological organizations in that city or town.
(ii) Notwithstanding Subsection (1)(a)(i), a city or town legislative body may not impose a tax under this section:
(A) if the county in which the city or town is located imposes a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities;
(B) on the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; and
(C) on any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(b) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) The election shall be held at a regular general election or a municipal general election, as those terms are defined in Section 20A-1-102, and shall follow the procedures outlined in Title 11, Chapter 14, Local Government Bonding Act, except as provided in Subsection (6).
(2) If the city or town legislative body determines that a majority of the city's or town's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax as prescribed in Subsection (1)(a), the city or town legislative body may impose the tax by a majority vote of all members of the legislative body.
(3) The monies generated from any tax imposed under Subsection (2) shall be used for financing:
(a) recreational and zoological facilities within the city or town or within the geographic area of entities that are parties to an interlocal agreement, to which the city or town is a party, providing for recreational or zoological facilities; and
(b) ongoing operating expenses of botanical, cultural, and zoological organizations within the city or town or within the geographic area of entities that are parties to an interlocal agreement, to which the city or town is a party, providing for the support of botanical, cultural, or zoological organizations.
(4) (a) A tax authorized under this part shall be:
(i) except as provided in Subsection (4)(b), administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies; and
(ii) (A) levied for a period of eight years; and
(B) may be reauthorized at the end of the eight-year period in accordance with this section.
(b) Notwithstanding Subsection (4)(a)(i), a tax under this section is not subject to Subsections 59-12-205(2) through (7).
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a city or town.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a city or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the city or town.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the city or town will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the city or town enacts the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the city or town that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment or repeal a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (5)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(6) (a) Before a city or town legislative body submits an opinion question to the residents of the city or town under Subsection (1)(a)(i), the city or town legislative body shall:
(i) submit to the county legislative body in which the city or town is located a written notice of the intent to submit the opinion question to the residents of the city or town; and
(ii) receive from the county legislative body:
(A) a written resolution passed by the county legislative body stating that the county legislative body is not seeking to impose a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities; or
(B) a written statement that in accordance with Subsection (6)(b) the results of a county opinion question submitted to the residents of the county under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, permit the city or town legislative body to submit the opinion question to the residents of the city or town in accordance with this part.
(b) (i) Within 60 days after the day the county legislative body receives from a city or town legislative body described in Subsection (6)(a) the notice of the intent to submit an opinion question to the residents of the city or town, the county legislative body shall provide the city or town legislative body:
(A) the written resolution described in Subsection (6)(a)(ii)(A); or
(B) written notice that the county legislative body will submit an opinion question to the residents of the county under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, for the county to impose a tax under that part.
(ii) If the county legislative body provides the city or town legislative body the written notice that the county legislative body will submit an opinion question as provided in Subsection (6)(b)(i)(B), the county legislative body shall submit the opinion question by no later than, from the date the county legislative body sends the written notice, the later of:
(A) a 12-month period;
(B) the next regular primary election; or
(C) the next regular general election.
(iii) Within 30 days of the date of the canvass of the election at which the opinion question under Subsection (6)(b)(ii) is voted on, the county legislative body shall provide the city or town legislative body described in Subsection (6)(a) written results of the opinion question submitted by the county legislative body under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, indicating that:
(A) (I) the city or town legislative body may not impose a tax under this part because a majority of the county's registered voters voted in favor of the county imposing the tax and the county legislative body by a majority vote approved the imposition of the tax; or
(II) for at least 12 months from the date the written results are submitted to the city or town legislative body, the city or town legislative body may not submit to the county legislative body a written notice of the intent to submit an opinion question under this part because a majority of the county's registered voters voted against the county imposing the tax and the majority of the registered voters who are residents of the city or town described in Subsection (6)(a) voted against the imposition of the county tax; or
(B) the city or town legislative body may submit the opinion question to the residents of the city or town in accordance with this part because although a majority of the county's registered voters voted against the county imposing the tax, the majority of the registered voters who are residents of the city or town voted for the imposition of the county tax.
(c) Notwithstanding Subsection (6)(b), at any time a county legislative body may provide a city or town legislative body described in Subsection (6)(a) a written resolution passed by the county legislative body stating that the county legislative body is not seeking to impose a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, which permits the city or town legislative body to submit under Subsection (1)(a)(i) an opinion question to the city's or town's residents.
Section 1055. Section 59-12-1402 (Effective 01/01/08) is amended to read:
59-12-1402 (Effective 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Uses of tax monies -- Enactment or repeal of tax -- Effective date -- Notice requirements.(1) (a) (i) Subject to Subsection (6), beginning on January 1, 2003, a city or town legislative body subject to this part may submit an opinion question to the residents of that city or town, by majority vote of all members of the legislative body, so that each resident of the city or town has an opportunity to express the resident's opinion on the imposition of a local sales and use tax of .1% on the transactions described in Subsection 59-12-103(1) located within the city or town, to fund recreational and zoological facilities and botanical, cultural, and zoological organizations in that city or town.
(ii) Notwithstanding Subsection (1)(a)(i), a city or town legislative body may not impose a tax under this section:
(A) if the county in which the city or town is located imposes a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities;
(B) on the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(C) on amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(D) except as provided in Subsection (1)(c), on amounts paid or charged for food and food ingredients.
(b) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(c) A city or town legislative body imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(d) The election shall be held at a regular general election or a municipal general election, as those terms are defined in Section 20A-1-102, and shall follow the procedures outlined in Title 11, Chapter 14, Local Government Bonding Act, except as provided in Subsection (6).
(2) If the city or town legislative body determines that a majority of the city's or town's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax as prescribed in Subsection (1)(a), the city or town legislative body may impose the tax by a majority vote of all members of the legislative body.
(3) The monies generated from any tax imposed under Subsection (2) shall be used for financing:
(a) recreational and zoological facilities within the city or town or within the geographic area of entities that are parties to an interlocal agreement, to which the city or town is a party, providing for recreational or zoological facilities; and
(b) ongoing operating expenses of botanical, cultural, and zoological organizations within the city or town or within the geographic area of entities that are parties to an interlocal agreement, to which the city or town is a party, providing for the support of botanical, cultural, or zoological organizations.
(4) (a) A tax authorized under this part shall be:
(i) except as provided in Subsection (4)(b), administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies; and
(ii) (A) levied for a period of eight years; and
(B) may be reauthorized at the end of the eight-year period in accordance with this section.
(b) Notwithstanding Subsection (4)(a)(i), a tax under this section is not subject to Subsections 59-12-205(2) through (7).
(5) (a) For purposes of this Subsection (5):
(i) "Annexation" means an annexation to a city or town under Title 10, Chapter 2, Part 4, Annexation.
(ii) "Annexing area" means an area that is annexed into a city or town.
(b) (i) Except as provided in Subsection (5)(c) or (d), if, on or after July 1, 2004, a city or town enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(b)(ii) from the city or town.
(ii) The notice described in Subsection (5)(b)(i)(B) shall state:
(A) that the city or town will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (5)(b)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(b)(ii)(A); and
(D) if the city or town enacts the tax described in Subsection (5)(b)(ii)(A), the rate of the tax.
(c) (i) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(b)(i), for a transaction described in Subsection (5)(c)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(c)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(d) (i) Notwithstanding Subsection (5)(b)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(b)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(b)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(e) (i) Except as provided in Subsection (5)(f) or (g), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (5)(e)(ii) from the city or town that annexes the annexing area.
(ii) The notice described in Subsection (5)(e)(i)(B) shall state:
(A) that the annexation described in Subsection (5)(e)(i) will result in an enactment or repeal a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (5)(e)(ii)(A);
(C) the effective date of the tax described in Subsection (5)(e)(ii)(A); and
(D) the rate of the tax described in Subsection (5)(e)(ii)(A).
(f) (i) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under this section.
(ii) Notwithstanding Subsection (5)(e)(i), for a transaction described in Subsection (5)(f)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this section.
(iii) Subsections (5)(f)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(g) (i) Notwithstanding Subsection (5)(e)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (5)(e)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (5)(e)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(6) (a) Before a city or town legislative body submits an opinion question to the residents of the city or town under Subsection (1)(a)(i), the city or town legislative body shall:
(i) submit to the county legislative body in which the city or town is located a written notice of the intent to submit the opinion question to the residents of the city or town; and
(ii) receive from the county legislative body:
(A) a written resolution passed by the county legislative body stating that the county legislative body is not seeking to impose a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities; or
(B) a written statement that in accordance with Subsection (6)(b) the results of a county opinion question submitted to the residents of the county under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, permit the city or town legislative body to submit the opinion question to the residents of the city or town in accordance with this part.
(b) (i) Within 60 days after the day the county legislative body receives from a city or town legislative body described in Subsection (6)(a) the notice of the intent to submit an opinion question to the residents of the city or town, the county legislative body shall provide the city or town legislative body:
(A) the written resolution described in Subsection (6)(a)(ii)(A); or
(B) written notice that the county legislative body will submit an opinion question to the residents of the county under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, for the county to impose a tax under that part.
(ii) If the county legislative body provides the city or town legislative body the written notice that the county legislative body will submit an opinion question as provided in Subsection (6)(b)(i)(B), the county legislative body shall submit the opinion question by no later than, from the date the county legislative body sends the written notice, the later of:
(A) a 12-month period;
(B) the next regular primary election; or
(C) the next regular general election.
(iii) Within 30 days of the date of the canvass of the election at which the opinion question under Subsection (6)(b)(ii) is voted on, the county legislative body shall provide the city or town legislative body described in Subsection (6)(a) written results of the opinion question submitted by the county legislative body under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, indicating that:
(A) (I) the city or town legislative body may not impose a tax under this part because a majority of the county's registered voters voted in favor of the county imposing the tax and the county legislative body by a majority vote approved the imposition of the tax; or
(II) for at least 12 months from the date the written results are submitted to the city or town legislative body, the city or town legislative body may not submit to the county legislative body a written notice of the intent to submit an opinion question under this part because a majority of the county's registered voters voted against the county imposing the tax and the majority of the registered voters who are residents of the city or town described in Subsection (6)(a) voted against the imposition of the county tax; or
(B) the city or town legislative body may submit the opinion question to the residents of the city or town in accordance with this part because although a majority of the county's registered voters voted against the county imposing the tax, the majority of the registered voters who are residents of the city or town voted for the imposition of the county tax.
(c) Notwithstanding Subsection (6)(b), at any time a county legislative body may provide a city or town legislative body described in Subsection (6)(a) a written resolution passed by the county legislative body stating that the county legislative body is not seeking to impose a tax under Part 7, County Option Funding for Botanical, Cultural, Recreational, and Zoological Organizations or Facilities, which permits the city or town legislative body to submit under Subsection (1)(a)(i) an opinion question to the city's or town's residents.
Section 1056. Section 59-12-1503 (Superseded 01/01/08) is amended to read:
59-12-1503 (Superseded 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Use of tax revenues -- Administration, collection, and enforcement of tax by commission -- Administrative fee -- Enactment or repeal of tax -- Annexation -- Notice.(1) (a) Beginning on or after April 1, 2004, and subject to the other provisions of this part, the county legislative body of a qualifying county may impose a sales and use tax of .25%:
(i) on the transactions:
(A) described in Subsection 59-12-103(1); and
(B) within the county, including the cities and towns within the county;
(ii) for the purposes determined by the county legislative body in accordance with Subsection (2); and
(iii) in addition to any other sales and use tax authorized under this chapter.
(b) Notwithstanding Subsection (1)(a)(i), a county legislative body may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; or
(ii) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(2) (a) Subject to Subsection (2)(b), before obtaining the approval required by Subsection (3), a county legislative body shall adopt a resolution specifying the percentage of revenues the county will receive from the tax under this part that will be allocated to fund one or more of the following:
(i) a project or service relating to a fixed guideway system for the portion of the project or service that is performed within the county;
(ii) a project or service relating to a system for public transit for the portion of the project or service that is performed within the county; or
(iii) the following relating to a state highway or a local highway of regional significance within the county:
(A) a project beginning on or after the day on which a county legislative body imposes a tax under this part only within the county involving:
(I) new construction;
(II) a renovation;
(III) an improvement; or
(IV) an environmental study;
(B) debt service on a project described in Subsections (2)(a)(iii)(A)(I) through (IV); or
(C) bond issuance costs relating to a project described in Subsections (2)(a)(iii)(A)(I) through (IV).
(b) (i) A county legislative body shall in the resolution required by Subsection (2)(a) allocate as required by Subsection (2)(a) 100% of the revenues the county will receive from the tax under this part.
(ii) For purposes of this Subsection (2)(b), the revenues a county will receive from the tax under this part do not include amounts retained by the commission in accordance with Subsection (8).
(3) (a) Before imposing a tax under this part, a county legislative body shall:
(i) obtain approval from a majority of the members of the county legislative body to:
(A) impose the tax; and
(B) allocate the revenues the county will receive from the tax in accordance with the resolution adopted in accordance with Subsection (2); and
(ii) subject to Subsection (3)(b), submit an opinion question to the county's registered voters voting on the imposition of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether a tax should be imposed under this part.
(b) The opinion question required by Subsection (3)(a)(ii) shall state the allocations specified in the resolution:
(i) adopted in accordance with Subsection (2); and
(ii) approved by the county legislative body in accordance with Subsection (3)(a).
(c) The election required by this Subsection (3) shall be held:
(i) (A) at a regular general election; and
(B) in accordance with the procedures and requirements of Title 20A, Election Code, governing regular general elections; or
(ii) (A) at a special election called by the county legislative body;
(B) only on the date of a municipal general election provided in Subsection 20A-1-202(1); and
(C) in accordance with the procedures and requirements of Section 20A-1-203.
(4) (a) Subject to Subsection (8), if a county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax in accordance with Subsection (3), the county legislative body may impose the tax by a majority vote of all of the members of the county legislative body.
(b) If a county legislative body imposes a tax under Subsection (4)(a), the revenues generated by the tax shall be:
(i) allocated in accordance with the allocations specified in the resolution under Subsection (2); and
(ii) expended as provided in this part.
(5) If a county legislative body allocates revenues generated by the tax for a project described in Subsection (2)(a)(iii)(A), before beginning the state highway project within the county, the county legislative body shall:
(a) obtain approval from the Transportation Commission to complete the project; and
(b) enter into an interlocal agreement:
(i) established in accordance with Title 11, Chapter 13, Interlocal Cooperation Act;
(ii) with the Department of Transportation; and
(iii) to complete the project.
(6) (a) If after a county legislative body imposes a tax under Subsection (4) the county legislative body seeks to change the allocation of the tax specified in the resolution under Subsection (2), the county legislative body may change the allocation of the tax by:
(i) adopting a resolution in accordance with Subsection (2) specifying the percentage of revenues the county will receive from the tax under this part that will be allocated to fund one or more of the systems or projects described in Subsection (2);
(ii) obtaining approval to change the allocation of the tax from a majority of the members of the county legislative body; and
(iii) (A) submitting an opinion question to the county's registered voters voting on changing the allocation of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether the allocation of the tax should be changed; and
(B) obtaining approval to change the allocation of the tax from a majority of the county's registered voters voting on changing the allocation of the tax.
(b) (i) The opinion question required by Subsection (6)(a)(iii) shall state the allocations specified in the resolution:
(A) adopted in accordance with Subsection (6)(a)(i); and
(B) approved by the county legislative body in accordance with Subsection (6)(a)(ii).
(ii) The election required by Subsection (6)(a)(iii) shall follow the procedures and requirements of Title 11, Chapter 14, Local Government Bonding Act.
(7) (a) (i) Except as provided in Subsection (7)(a)(ii), revenues generated by a tax under this part that are allocated for a purpose described in Subsection (2)(a)(i) or (ii) shall be transmitted:
(A) by the commission;
(B) to the county;
(C) monthly; and
(D) by electronic funds transfer.
(ii) Notwithstanding Subsection (7)(a)(i), a county may request that the commission transfer the revenues described in Subsection (7)(a)(i):
(A) directly to a public transit district:
(I) organized under Title 17B, Chapter 2a, Part 8, Public Transit District Act; and
(II) designated by the county; and
(B) by providing written notice to the commission:
(I) requesting the revenues to be transferred directly to a public transit district as provided in Subsection (7)(a)(ii)(A); and
(II) designating the public transit district to which the revenues are requested to be transferred.
(b) Revenues generated by a tax under this part that are allocated for a purpose described in Subsection (2)(a)(iii) shall be:
(i) deposited into the State Highway Projects Within Counties Fund created by Section 72-2-121.1; and
(ii) expended as provided in Section 72-2-121.1.
(8) (a) (i) Except as provided in Subsection (8)(a)(ii), the tax authorized under this part shall be administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies.
(ii) Notwithstanding Subsection (8)(a)(i), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
(b) (i) The commission may retain an amount of tax collected under this part of not to exceed the lesser of:
(A) 1.5%; or
(B) an amount equal to the cost to the commission of administering this part.
(ii) Any amount the commission retains under Subsection (8)(b)(i) shall be:
(A) placed in the Sales and Use Tax Administrative Fees Account; and
(B) used as provided in Subsection 59-12-206(2).
(9) (a) (i) Except as provided in Subsection (9)(b) or (c), if, on or after July 1, 2004, a county enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(a)(ii) from the county.
(ii) The notice described in Subsection (9)(a)(i)(B) shall state:
(A) that the county will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (9)(a)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(a)(ii)(A); and
(D) if the county enacts the tax described in Subsection (9)(a)(ii)(A), the rate of the tax.
(b) (i) Notwithstanding Subsection (9)(a)(i), for a transaction described in Subsection (9)(b)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (9)(a)(i), for a transaction described in Subsection (9)(b)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (9)(b)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(c) (i) Notwithstanding Subsection (9)(a)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (9)(a)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (9)(a)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(d) (i) Except as provided in Subsection (9)(e) or (f), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(d)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (9)(d)(i)(B) shall state:
(A) that the annexation described in Subsection (9)(d)(i)(B) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (9)(d)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(d)(ii)(A); and
(D) the rate of the tax described in Subsection (9)(d)(ii)(A).
(e) (i) Notwithstanding Subsection (9)(d)(i), for a transaction described in Subsection (9)(e)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (9)(d)(i), for a transaction described in Subsection (9)(e)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (9)(e)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(f) (i) Notwithstanding Subsection (9)(d)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (9)(d)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (9)(d)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(10) A county that imposed a sales and use tax under this section prior to July 1, 2007, may expend revenues allocated in the resolution for the purpose described in Subsection (2)(a)(iii) on local highway of regional significance projects in addition to or in substitution of state highway projects within the county.
Section 1057. Section 59-12-1503 (Effective 01/01/08) is amended to read:
59-12-1503 (Effective 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Use of tax revenues -- Administration, collection, and enforcement of tax by commission -- Administrative fee -- Enactment or repeal of tax -- Annexation -- Notice.(1) (a) Subject to the other provisions of this part, the county legislative body of a qualifying county may impose a sales and use tax of:
(i) beginning on April 1, 2004, and ending on December 31, 2007, .25%:
(A) on the transactions:
(I) described in Subsection 59-12-103(1); and
(II) within the county, including the cities and towns within the county;
(B) for the purposes determined by the county legislative body in accordance with Subsection (2); and
(C) in addition to any other sales and use tax authorized under this chapter; or
(ii) beginning on January 1, 2008, up to .30%:
(A) on the transactions:
(I) described in Subsection 59-12-103(1); and
(II) within the county, including the cities and towns within the county;
(B) for the purposes determined by the county legislative body in accordance with Subsection (2); and
(C) in addition to any other sales and use tax authorized under this chapter.
(b) Notwithstanding Subsection (1)(a), a county legislative body may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(ii) amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(iii) except as provided in Subsection (1)(d), amounts paid or charged for food and food ingredients.
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(d) A county legislative body imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(2) (a) Subject to Subsection (2)(b), before obtaining the approval required by Subsection (3), a county legislative body shall adopt a resolution specifying the percentage of revenues the county will receive from the tax under this part that will be allocated to fund one or more of the following:
(i) a project or service relating to a fixed guideway system for the portion of the project or service that is performed within the county;
(ii) a project or service relating to a system for public transit for the portion of the project or service that is performed within the county; or
(iii) the following relating to a state highway or a local highway of regional significance within the county:
(A) a project beginning on or after the day on which a county legislative body imposes a tax under this part only within the county involving:
(I) new construction;
(II) a renovation;
(III) an improvement; or
(IV) an environmental study;
(B) debt service on a project described in Subsections (2)(a)(iii)(A)(I) through (IV); or
(C) bond issuance costs relating to a project described in Subsections (2)(a)(iii)(A)(I) through (IV).
(b) (i) A county legislative body shall in the resolution required by Subsection (2)(a) allocate as required by Subsection (2)(a) 100% of the revenues the county will receive from the tax under this part.
(ii) For purposes of this Subsection (2)(b), the revenues a county will receive from the tax under this part do not include amounts retained by the commission in accordance with Subsection (8).
(3) (a) Except as provided in Subsection (3)(d), before imposing a tax under this part, a county legislative body shall:
(i) obtain approval from a majority of the members of the county legislative body to:
(A) impose the tax; and
(B) allocate the revenues the county will receive from the tax in accordance with the resolution adopted in accordance with Subsection (2); and
(ii) subject to Subsection (3)(b), submit an opinion question to the county's registered voters voting on the imposition of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether a tax should be imposed under this part.
(b) The opinion question required by Subsection (3)(a)(ii) shall state the allocations specified in the resolution:
(i) adopted in accordance with Subsection (2); and
(ii) approved by the county legislative body in accordance with Subsection (3)(a).
(c) The election required by this Subsection (3) shall be held:
(i) (A) at a regular general election; and
(B) in accordance with the procedures and requirements of Title 20A, Election Code, governing regular general elections; or
(ii) (A) at a special election called by the county legislative body;
(B) only on the date of a municipal general election provided in Subsection 20A-1-202(1); and
(C) in accordance with the procedures and requirements of Section 20A-1-203.
(d) A county is not subject to the voter approval requirements of this section if:
(i) on December 31, 2007, the county imposes a tax of .25% under this section; and
(ii) on or after January 1, 2008, the county increases the tax rate under this section to up to .30%.
(4) (a) Subject to Subsection (8), if a county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax in accordance with Subsection (3), the county legislative body may impose the tax by a majority vote of all of the members of the county legislative body.
(b) If a county legislative body imposes a tax under Subsection (4)(a), the revenues generated by the tax shall be:
(i) allocated in accordance with the allocations specified in the resolution under Subsection (2); and
(ii) expended as provided in this part.
(5) If a county legislative body allocates revenues generated by the tax for a project described in Subsection (2)(a)(iii)(A), before beginning the state highway project within the county, the county legislative body shall:
(a) obtain approval from the Transportation Commission to complete the project; and
(b) enter into an interlocal agreement:
(i) established in accordance with Title 11, Chapter 13, Interlocal Cooperation Act;
(ii) with the Department of Transportation; and
(iii) to complete the project.
(6) (a) If after a county legislative body imposes a tax under Subsection (4) the county legislative body seeks to change the allocation of the tax specified in the resolution under Subsection (2), the county legislative body may change the allocation of the tax by:
(i) adopting a resolution in accordance with Subsection (2) specifying the percentage of revenues the county will receive from the tax under this part that will be allocated to fund one or more of the systems or projects described in Subsection (2);
(ii) obtaining approval to change the allocation of the tax from a majority of the members of the county legislative body; and
(iii) (A) submitting an opinion question to the county's registered voters voting on changing the allocation of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether the allocation of the tax should be changed; and
(B) obtaining approval to change the allocation of the tax from a majority of the county's registered voters voting on changing the allocation of the tax.
(b) (i) The opinion question required by Subsection (6)(a)(iii) shall state the allocations specified in the resolution:
(A) adopted in accordance with Subsection (6)(a)(i); and
(B) approved by the county legislative body in accordance with Subsection (6)(a)(ii).
(ii) The election required by Subsection (6)(a)(iii) shall follow the procedures and requirements of Title 11, Chapter 14, Local Government Bonding Act.
(7) (a) (i) Except as provided in Subsection (7)(a)(ii), revenues generated by a tax under this part that are allocated for a purpose described in Subsection (2)(a)(i) or (ii) shall be transmitted:
(A) by the commission;
(B) to the county;
(C) monthly; and
(D) by electronic funds transfer.
(ii) Notwithstanding Subsection (7)(a)(i), a county may request that the commission transfer the revenues described in Subsection (7)(a)(i):
(A) directly to a public transit district:
(I) organized under Title 17B, Chapter 2a, Part 8, Public Transit District Act; and
(II) designated by the county; and
(B) by providing written notice to the commission:
(I) requesting the revenues to be transferred directly to a public transit district as provided in Subsection (7)(a)(ii)(A); and
(II) designating the public transit district to which the revenues are requested to be transferred.
(b) Revenues generated by a tax under this part that are allocated for a purpose described in Subsection (2)(a)(iii) shall be:
(i) deposited into the State Highway Projects Within Counties Fund created by Section 72-2-121.1; and
(ii) expended as provided in Section 72-2-121.1.
(8) (a) (i) Except as provided in Subsection (8)(a)(ii), the tax authorized under this part shall be administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies.
(ii) Notwithstanding Subsection (8)(a)(i), a tax under this part is not subject to Subsections 59-12-205(2) through (7).
(b) (i) The commission may retain an amount of tax collected under this part of not to exceed the lesser of:
(A) 1.5%; or
(B) an amount equal to the cost to the commission of administering this part.
(ii) Any amount the commission retains under Subsection (8)(b)(i) shall be:
(A) placed in the Sales and Use Tax Administrative Fees Account; and
(B) used as provided in Subsection 59-12-206(2).
(9) (a) (i) Except as provided in Subsection (9)(b) or (c), if, on or after April 1, 2008, a county enacts or repeals a tax under this part, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(a)(ii) from the county.
(ii) The notice described in Subsection (9)(a)(i)(B) shall state:
(A) that the county will enact or repeal a tax under this part;
(B) the statutory authority for the tax described in Subsection (9)(a)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(a)(ii)(A); and
(D) if the county enacts the tax described in Subsection (9)(a)(ii)(A), the rate of the tax.
(b) (i) Notwithstanding Subsection (9)(a)(i), for a transaction described in Subsection (9)(b)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (9)(a)(i), for a transaction described in Subsection (9)(b)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (9)(b)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(c) (i) Notwithstanding Subsection (9)(a)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (9)(a)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (9)(a)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(d) (i) Except as provided in Subsection (9)(e) or (f), if, for an annexation that occurs on or after July 1, 2004, the annexation will result in the enactment or repeal of a tax under this part for an annexing area, the enactment or repeal shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(d)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (9)(d)(i)(B) shall state:
(A) that the annexation described in Subsection (9)(d)(i)(B) will result in an enactment or repeal of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (9)(d)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(d)(ii)(A); and
(D) the rate of the tax described in Subsection (9)(d)(ii)(A).
(e) (i) Notwithstanding Subsection (9)(d)(i), for a transaction described in Subsection (9)(e)(iii), the enactment of a tax shall take effect on the first day of the first billing period:
(A) that begins after the effective date of the enactment of the tax; and
(B) if the billing period for the transaction begins before the effective date of the enactment of the tax under Subsection (1).
(ii) Notwithstanding Subsection (9)(d)(i), for a transaction described in Subsection (9)(e)(iii), the repeal of a tax shall take effect on the first day of the last billing period:
(A) that began before the effective date of the repeal of the tax; and
(B) if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under Subsection (1).
(iii) Subsections (9)(e)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(f) (i) Notwithstanding Subsection (9)(d)(i), if a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax described in Subsection (9)(d)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment or repeal under Subsection (9)(d)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(10) A county that imposed a sales and use tax under this section prior to July 1, 2007, may expend revenues allocated in the resolution for the purpose described in Subsection (2)(a)(iii) on local highway of regional significance projects in addition to or in substitution of state highway projects within the county.
Section 1058. Section 59-12-1703 (Superseded 01/01/08) is amended to read:
59-12-1703 (Superseded 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Use of tax revenues -- Administration, collection, and enforcement of tax by commission -- Administrative fee -- Enactment or repeal of tax -- Annexation -- Notice.(1) (a) Beginning on or after April 1, 2007, and subject to the other provisions of this part, a county legislative body may impose a sales and use tax of up to .25%:
(i) on the transactions:
(A) described in Subsection 59-12-103(1); and
(B) within the county, including the cities and towns within the county;
(ii) for the purposes described in Subsection (4); and
(iii) in addition to any other sales and use tax authorized under this chapter.
(b) Notwithstanding Subsection (1)(a)(i), a county legislative body may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104; or
(ii) any amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b).
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(2) (a) Except as provided in Subsection (2)(d), before imposing a tax under this part, a county legislative body shall:
(i) obtain approval from a majority of the members of the county legislative body to impose the tax; and
(ii) submit an opinion question to the county's registered voters voting on the imposition of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether a tax should be imposed under this part.
(b) (i) In a county of the first or second class, the opinion question required by Subsection (2)(a)(ii) shall state the following:
"Shall (insert the name of the county), Utah, be authorized to impose a (insert the amount of the sales and use tax up to .25%) sales and use tax for corridor preservation, congestion mitigation, or to expand capacity for regionally significant transportation facilities?"
(ii) In a county of the third, fourth, fifth, or sixth class, the opinion question required by Subsection (2)(a)(ii) shall state the following:
"Shall (insert the name of the county), Utah, be authorized to impose a (insert the amount of the sales and use tax up to .25%) sales and use tax for transportation projects, corridor preservation, congestion mitigation, or to expand capacity for regionally significant transportation facilities?"
(c) Except as provided in Subsection (2)(d), the election required by this Subsection (2) shall be held:
(i) at a regular general election conducted in accordance with the procedures and requirements of Title 20A, Election Code, governing regular elections; or
(ii) at a special election called by the county legislative body that is:
(A) held only on the date of a municipal general election as provided in Subsection 20A-1-202(1); and
(B) authorized in accordance with the procedures and requirements of Section 20A-1-203.
(d) Notwithstanding Subsection (2)(a) or (c), if a county seeks to impose a tax under this part on or after April 1, 2007, but on or before December 31, 2007, the county legislative body shall:
(i) obtain the approval required by Subsection (2)(a)(i) within five calendar days of September 20, 2006;
(ii) direct the county clerk to submit the opinion question required by Subsection (2)(a)(ii) during the November 7, 2006 general election; and
(iii) hold the election required by this section on November 7, 2006.
(3) If a county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax in accordance with Subsection (2), the county legislative body shall impose the tax in accordance with this section.
(4) (a) Subject to Subsections (5) and (6), the revenues generated by a tax under this part may only be expended for:
(i) a project or service:
(A) relating to a regionally significant transportation facility;
(B) for the portion of the project or service that is performed within the county;
(C) for new capacity or congestion mitigation if the project or service is performed within a county:
(I) of the first class;
(II) of the second class; or
(III) that is part of an area metropolitan planning organization;
(D) (I) if the project or service is a principal arterial highway or a minor arterial highway in a county of the first or second class, that is part of the county and municipal master plan and part of:
(Aa) the statewide long-range plan; or
(Bb) the regional transportation plan of the area metropolitan planning organization if a metropolitan planning organization exists for the area; or
(II) if the project or service is for a fixed guideway or an airport, that is part of the regional transportation plan of the area metropolitan planning organization if a metropolitan planning organization exists for the area; and
(E) that is on a priority list:
(I) created by the county's council of governments in accordance with Subsection (5); and
(II) approved by the county legislative body in accordance with Subsection (6);
(ii) corridor preservation for a project described in Subsection (4)(a)(i) as provided in Subsection (7)(b); or
(iii) any debt service and bond issuance costs related to a project described in Subsection (4)(a)(i) or (ii).
(b) In a county of the first or second class, a regionally significant transportation facility project or service described in Subsection (4)(a)(i)(A) must have a funded year priority designation on a Statewide Transportation Improvement Program and Transportation Improvement Program if the project or service described in Subsection (4)(a)(i) is:
(i) a principal arterial highway as defined in Section 72-4-102.5;
(ii) a minor arterial highway as defined in Section 72-4-102.5; or
(iii) a major collector highway:
(A) as defined in Section 72-4-102.5; and
(B) in a rural area.
(c) Notwithstanding the designated use of revenues in Subsection (4)(a), of the revenues generated by the tax imposed under this section by any county of the first or second class, 25% or more shall be expended for the purpose described in Subsection (4)(a)(ii).
(d) For purposes of this Subsection (4), the revenues a county will receive from a tax under this part do not include amounts retained by the commission in accordance with Subsection (8).
(5) (a) The county's council of governments shall create a priority list of regionally significant transportation facility projects described in Subsection (4)(a) using the process described in Subsection (5)(b) and present the priority list to the county's legislative body for approval as described in Subsection (6).
(b) Subject to Sections 59-12-1704 and 59-12-1705, a council of governments shall establish a council of governments' endorsement process which includes prioritization and application procedures for use of the revenues a county will receive from a tax under this part.
(6) (a) The council of governments shall submit the priority list described in Subsection (5) to the county's legislative body and obtain approval of the list from a majority of the members of the county legislative body.
(b) A county's council of governments may only submit one priority list per calendar year.
(c) A county legislative body may only consider and approve one priority list per calendar year.
(7) (a) (i) Except as provided in Subsections (7)(a)(ii) and (7)(b), revenues described in Subsection (4) shall be transmitted:
(A) by the commission;
(B) to the county;
(C) monthly; and
(D) by electronic funds transfer.
(ii) A county may request that the commission transfer a portion of the revenues described in Subsection (4):
(A) directly to a public transit district:
(I) organized under Title 17B, Chapter 2a, Part 8, Public Transit District Act; and
(II) designated by the county; and
(B) by providing written notice to the commission:
(I) requesting the revenues to be transferred directly to a public transit district as provided in Subsection (7)(a)(ii)(A); and
(II) designating the public transit district to which the revenues are requested to be transferred.
(b) (i) Except as provided in Subsection (7)(b)(ii), revenues generated by a tax under this part that are allocated for a purpose described in Subsection (4)(a)(ii) shall be:
(A) deposited in or transferred to the Local Transportation Corridor Preservation Fund created by Section 72-2-117.5; and
(B) expended as provided in Section 72-2-117.5.
(ii) In a county of the first class, revenues generated by a tax under this part that are allocated for a purpose described in Subsection (4)(a)(ii) shall be:
(A) deposited in or transferred to the County of the First Class State Highway Projects Fund created by Section 72-2-121; and
(B) expended as provided in Section 72-2-121.
(8) (a) (i) Except as provided in Subsection (8)(b), the tax authorized under this part shall be administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies.
(ii) A tax under this part is not subject to Subsections 59-12-205(2) through (7).
(b) (i) The commission may retain an amount of tax collected under this part of not to exceed the lesser of:
(A) 1.5%; or
(B) an amount equal to the cost to the commission of administering this part.
(ii) Any amount the commission retains under Subsection (8)(b)(i) shall be:
(A) placed in the Sales and Use Tax Administrative Fees Account; and
(B) used as provided in Subsection 59-12-206(2).
(9) (a) (i) Except as provided in Subsection (9)(b) or (c), if, on or after April 1, 2007, a county enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(a)(ii) from the county.
(ii) The notice described in Subsection (9)(a)(i)(B) shall state:
(A) that the county will enact, repeal, or change the rate of a tax under this part;
(B) the statutory authority for the tax described in Subsection (9)(a)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(a)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (9)(a)(ii)(A), the rate of the tax.
(b) (i) For a transaction described in Subsection (9)(b)(iii), if the billing period for the transaction begins before the effective date of the enactment of the tax or tax rate increase under Subsection (1), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period that begins after the effective date of the enactment of the tax or the tax rate increase.
(ii) For a transaction described in Subsection (9)(b)(iii), if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period that began before the effective date of the repeal of the tax or the tax rate decrease.
(iii) Subsections (9)(b)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(c) (i) If a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (9)(a)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (9)(a)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(d) (i) Except as provided in Subsection (9)(e) or (f), if, for an annexation that occurs on or after April 1, 2007, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(d)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (9)(d)(i)(B) shall state:
(A) that the annexation described in Subsection (9)(d)(i)(B) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (9)(d)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(d)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (9)(d)(ii)(A), the rate of the tax.
(e) (i) For a transaction described in Subsection (9)(e)(iii), if the billing period for the transaction begins before the effective date of the enactment of the tax or a tax rate increase under Subsection (1), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period that begins after the effective date of the enactment of the tax or the tax rate increase.
(ii) For a transaction described in Subsection (9)(e)(iii), if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period that began before the effective date of the repeal of the tax or the tax rate decrease.
(iii) Subsections (9)(e)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(f) (i) If a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (9)(d)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate under Subsection (9)(d)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1059. Section 59-12-1703 (Effective 01/01/08) is amended to read:
59-12-1703 (Effective 01/01/08)
. Opinion question election -- Base -- Rate -- Imposition of tax -- Use of tax revenues -- Administration, collection, and enforcement of tax by commission -- Administrative fee -- Enactment or repeal of tax -- Annexation -- Notice.(1) (a) Subject to the other provisions of this part, a county legislative body may impose a sales and use tax of up to .25%:
(i) on the transactions:
(A) described in Subsection 59-12-103(1); and
(B) within the county, including the cities and towns within the county;
(ii) for the purposes described in Subsection (4); and
(iii) in addition to any other sales and use tax authorized under this chapter.
(b) Notwithstanding Subsection (1)(a)(i), a county legislative body may not impose a tax under this section on:
(i) the sales and uses described in Section 59-12-104 to the extent the sales and uses are exempt from taxation under Section 59-12-104;
(ii) amounts paid or charged by a seller that collects a tax under Subsection 59-12-107(1)(b); and
(iii) except as provided in Subsection (1)(d), amounts paid or charged for food and food ingredients.
(c) For purposes of this Subsection (1), the location of a transaction shall be determined in accordance with Section 59-12-207.
(d) A county legislative body imposing a tax under this section shall impose the tax on amounts paid or charged for food and food ingredients if:
(i) the food and food ingredients are sold as part of a bundled transaction attributable to food and food ingredients and tangible personal property other than food and food ingredients; and
(ii) the seller collecting the tax is a seller other than a seller that collects a tax in accordance with Subsection 59-12-107(1)(b).
(2) (a) Except as provided in Subsection (2)(d), before imposing a tax under this part, a county legislative body shall:
(i) obtain approval from a majority of the members of the county legislative body to impose the tax; and
(ii) submit an opinion question to the county's registered voters voting on the imposition of the tax so that each registered voter has the opportunity to express the registered voter's opinion on whether a tax should be imposed under this part.
(b) (i) In a county of the first or second class, the opinion question required by Subsection (2)(a)(ii) shall state the following:
"Shall (insert the name of the county), Utah, be authorized to impose a (insert the amount of the sales and use tax up to .25%) sales and use tax for corridor preservation, congestion mitigation, or to expand capacity for regionally significant transportation facilities?"
(ii) In a county of the third, fourth, fifth, or sixth class, the opinion question required by Subsection (2)(a)(ii) shall state the following:
"Shall (insert the name of the county), Utah, be authorized to impose a (insert the amount of the sales and use tax up to .25%) sales and use tax for transportation projects, corridor preservation, congestion mitigation, or to expand capacity for regionally significant transportation facilities?"
(c) Except as provided in Subsection (2)(d), the election required by this Subsection (2) shall be held:
(i) at a regular general election conducted in accordance with the procedures and requirements of Title 20A, Election Code, governing regular elections; or
(ii) at a special election called by the county legislative body that is:
(A) held only on the date of a municipal general election as provided in Subsection 20A-1-202(1); and
(B) authorized in accordance with the procedures and requirements of Section 20A-1-203.
(d) Notwithstanding Subsection (2)(a) or (c), if a county seeks to impose a tax under this part on or after April 1, 2007, but on or before December 31, 2007, the county legislative body shall:
(i) obtain the approval required by Subsection (2)(a)(i) within five calendar days of September 20, 2006;
(ii) direct the county clerk to submit the opinion question required by Subsection (2)(a)(ii) during the November 7, 2006 general election; and
(iii) hold the election required by this section on November 7, 2006.
(3) If a county legislative body determines that a majority of the county's registered voters voting on the imposition of the tax have voted in favor of the imposition of the tax in accordance with Subsection (2), the county legislative body shall impose the tax in accordance with this section.
(4) (a) Subject to Subsections (5) and (6), the revenues generated by a tax under this part may only be expended for:
(i) a project or service:
(A) relating to a regionally significant transportation facility;
(B) for the portion of the project or service that is performed within the county;
(C) for new capacity or congestion mitigation if the project or service is performed within a county:
(I) of the first class;
(II) of the second class; or
(III) that is part of an area metropolitan planning organization;
(D) (I) if the project or service is a principal arterial highway or a minor arterial highway in a county of the first or second class, that is part of the county and municipal master plan and part of:
(Aa) the statewide long-range plan; or
(Bb) the regional transportation plan of the area metropolitan planning organization if a metropolitan planning organization exists for the area; or
(II) if the project or service is for a fixed guideway or an airport, that is part of the regional transportation plan of the area metropolitan planning organization if a metropolitan planning organization exists for the area; and
(E) that is on a priority list:
(I) created by the county's council of governments in accordance with Subsection (5); and
(II) approved by the county legislative body in accordance with Subsection (6);
(ii) corridor preservation for a project described in Subsection (4)(a)(i) as provided in Subsection (7)(b); or
(iii) any debt service and bond issuance costs related to a project described in Subsection (4)(a)(i) or (ii).
(b) In a county of the first or second class, a regionally significant transportation facility project or service described in Subsection (4)(a)(i)(A) must have a funded year priority designation on a Statewide Transportation Improvement Program and Transportation Improvement Program if the project or service described in Subsection (4)(a)(i) is:
(i) a principal arterial highway as defined in Section 72-4-102.5;
(ii) a minor arterial highway as defined in Section 72-4-102.5; or
(iii) a major collector highway:
(A) as defined in Section 72-4-102.5; and
(B) in a rural area.
(c) Notwithstanding the designated use of revenues in Subsection (4)(a), of the revenues generated by the tax imposed under this section by any county of the first or second class, 25% or more shall be expended for the purpose described in Subsection (4)(a)(ii).
(d) For purposes of this Subsection (4), the revenues a county will receive from a tax under this part do not include amounts retained by the commission in accordance with Subsection (8).
(5) (a) The county's council of governments shall create a priority list of regionally significant transportation facility projects described in Subsection (4)(a) using the process described in Subsection (5)(b) and present the priority list to the county's legislative body for approval as described in Subsection (6).
(b) Subject to Sections 59-12-1704 and 59-12-1705, a council of governments shall establish a council of governments' endorsement process which includes prioritization and application procedures for use of the revenues a county will receive from a tax under this part.
(6) (a) The council of governments shall submit the priority list described in Subsection (5) to the county's legislative body and obtain approval of the list from a majority of the members of the county legislative body.
(b) A county's council of governments may only submit one priority list per calendar year.
(c) A county legislative body may only consider and approve one priority list per calendar year.
(7) (a) (i) Except as provided in Subsections (7)(a)(ii) and (7)(b), revenues described in Subsection (4) shall be transmitted:
(A) by the commission;
(B) to the county;
(C) monthly; and
(D) by electronic funds transfer.
(ii) A county may request that the commission transfer a portion of the revenues described in Subsection (4):
(A) directly to a public transit district:
(I) organized under Title 17B, Chapter 2a, Part 8, Public Transit District Act; and
(II) designated by the county; and
(B) by providing written notice to the commission:
(I) requesting the revenues to be transferred directly to a public transit district as provided in Subsection (7)(a)(ii)(A); and
(II) designating the public transit district to which the revenues are requested to be transferred.
(b) (i) Except as provided in Subsection (7)(b)(ii), revenues generated by a tax under this part that are allocated for a purpose described in Subsection (4)(a)(ii) shall be:
(A) deposited in or transferred to the Local Transportation Corridor Preservation Fund created by Section 72-2-117.5; and
(B) expended as provided in Section 72-2-117.5.
(ii) In a county of the first class, revenues generated by a tax under this part that are allocated for a purpose described in Subsection (4)(a)(ii) shall be:
(A) deposited in or transferred to the County of the First Class State Highway Projects Fund created by Section 72-2-121; and
(B) expended as provided in Section 72-2-121.
(8) (a) (i) Except as provided in Subsection (8)(b), the tax authorized under this part shall be administered, collected, and enforced in accordance with:
(A) the same procedures used to administer, collect, and enforce the tax under:
(I) Part 1, Tax Collection; or
(II) Part 2, Local Sales and Use Tax Act; and
(B) Chapter 1, General Taxation Policies.
(ii) A tax under this part is not subject to Subsections 59-12-205(2) through (7).
(b) (i) The commission may retain an amount of tax collected under this part of not to exceed the lesser of:
(A) 1.5%; or
(B) an amount equal to the cost to the commission of administering this part.
(ii) Any amount the commission retains under Subsection (8)(b)(i) shall be:
(A) placed in the Sales and Use Tax Administrative Fees Account; and
(B) used as provided in Subsection 59-12-206(2).
(9) (a) (i) Except as provided in Subsection (9)(b) or (c), if, on or after April 1, 2007, a county enacts or repeals a tax or changes the rate of a tax under this part, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(a)(ii) from the county.
(ii) The notice described in Subsection (9)(a)(i)(B) shall state:
(A) that the county will enact, repeal, or change the rate of a tax under this part;
(B) the statutory authority for the tax described in Subsection (9)(a)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(a)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (9)(a)(ii)(A), the rate of the tax.
(b) (i) For a transaction described in Subsection (9)(b)(iii), if the billing period for the transaction begins before the effective date of the enactment of the tax or tax rate increase under Subsection (1), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period that begins after the effective date of the enactment of the tax or the tax rate increase.
(ii) For a transaction described in Subsection (9)(b)(iii), if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period that began before the effective date of the repeal of the tax or the tax rate decrease.
(iii) Subsections (9)(b)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(c) (i) If a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (9)(a)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate of the tax under Subsection (9)(a)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(d) (i) Except as provided in Subsection (9)(e) or (f), if, for an annexation that occurs on or after April 1, 2007, the annexation will result in the enactment, repeal, or change in the rate of a tax under this part for an annexing area, the enactment, repeal, or change shall take effect:
(A) on the first day of a calendar quarter; and
(B) after a 90-day period beginning on the date the commission receives notice meeting the requirements of Subsection (9)(d)(ii) from the county that annexes the annexing area.
(ii) The notice described in Subsection (9)(d)(i)(B) shall state:
(A) that the annexation described in Subsection (9)(d)(i)(B) will result in an enactment, repeal, or change in the rate of a tax under this part for the annexing area;
(B) the statutory authority for the tax described in Subsection (9)(d)(ii)(A);
(C) the effective date of the tax described in Subsection (9)(d)(ii)(A); and
(D) if the county enacts the tax or changes the rate of the tax described in Subsection (9)(d)(ii)(A), the rate of the tax.
(e) (i) For a transaction described in Subsection (9)(e)(iii), if the billing period for the transaction begins before the effective date of the enactment of the tax or a tax rate increase under Subsection (1), the enactment of a tax or a tax rate increase shall take effect on the first day of the first billing period that begins after the effective date of the enactment of the tax or the tax rate increase.
(ii) For a transaction described in Subsection (9)(e)(iii), if the billing period for the transaction begins before the effective date of the repeal of the tax or the tax rate decrease imposed under Subsection (1), the repeal of a tax or a tax rate decrease shall take effect on the first day of the last billing period that began before the effective date of the repeal of the tax or the tax rate decrease.
(iii) Subsections (9)(e)(i) and (ii) apply to transactions subject to a tax under:
(A) Subsection 59-12-103(1)(b);
(B) Subsection 59-12-103(1)(c);
(C) Subsection 59-12-103(1)(d);
(D) Subsection 59-12-103(1)(e);
(E) Subsection 59-12-103(1)(f);
(F) Subsection 59-12-103(1)(g);
(G) Subsection 59-12-103(1)(h);
(H) Subsection 59-12-103(1)(i);
(I) Subsection 59-12-103(1)(j); or
(J) Subsection 59-12-103(1)(k).
(f) (i) If a tax due under this chapter on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment, repeal, or change in the rate of a tax described in Subsection (9)(d)(i) takes effect:
(A) on the first day of a calendar quarter; and
(B) beginning 60 days after the effective date of the enactment, repeal, or change in the rate under Subsection (9)(d)(i).
(ii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
Section 1060. Section 59-12-1803 (Effective 01/01/08) is amended to read:
59-12-1803 (Effective 01/01/08)
. Enactment or repeal of tax -- Effective date -- Administration, collection, and enforcement of tax.(1) Subject to Subsections (2) and (3), a tax rate repeal or a tax rate change for a tax imposed under this part shall take effect on the first day of a calendar quarter.
(2) (a) For a transaction described in Subsection (2)(c), the enactment of a tax shall take effect on the first day of the first billing period that begins after the effective date of the enactment of the tax if the billing period for the transaction begins before the effective date of the tax under this part.
(b) For a transaction described in Subsection (2)(c), the repeal of a tax shall take effect on the first day of the last billing period that began before the effective date of the repeal of the tax if the billing period for the transaction begins before the effective date of the repeal of the tax imposed under this part.
(c) Subsections (2)(a) and (b) apply to transactions subject to a tax under:
(i) Subsection 59-12-103(1)(b);
(ii) Subsection 59-12-103(1)(c);
(iii) Subsection 59-12-103(1)(d);
(iv) Subsection 59-12-103(1)(e);
(v) Subsection 59-12-103(1)(f);
(vi) Subsection 59-12-103(1)(g);
(vii) Subsection 59-12-103(1)(h);
(viii) Subsection 59-12-103(1)(i);
(ix) Subsection 59-12-103(1)(j); or
(x) Subsection 59-12-103(1)(k).
(3) (a) If a tax due under this part on a catalogue sale is computed on the basis of sales and use tax rates published in the catalogue, an enactment or repeal of a tax under this part takes effect:
(i) on the first day of a calendar quarter; and
(ii) beginning 60 days after the effective date of the enactment or repeal of the tax under this part.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may by rule define the term "catalogue sale."
(4) A tax imposed by this part shall be administered, collected, and enforced in accordance with:
(a) the same procedures used to administer, collect, and enforce the tax under Part 1, Tax Collection; and
(b) Chapter 1, General Taxation Policies.
Section 1061. Section 59-13-201 is amended to read:
59-13-201
. Rate -- Tax basis -- Exemptions -- Revenue deposited in the Transportation Fund -- Restricted account for boating uses -- Refunds -- Reduction of tax in limited circumstances.(1) (a) Subject to the provisions of this section, a tax is imposed at the rate of 24-1/2 cents per gallon upon all motor fuel that is sold, used, or received for sale or used in this state.
(b) In lieu of the tax imposed under Subsection (1)(a) and subject to the provisions of this section, a tax is imposed at the rate of 3/19 of the rate imposed under Subsection (1)(a), rounded up to the nearest penny, upon all motor fuels that meet the definition of clean fuel in Section 59-13-102 and are sold, used, or received for sale or use in this state.
(2) Any increase or decrease in tax rate applies to motor fuel that is imported to the state or sold at refineries in the state on or after the effective date of the rate change.
(3) (a) No motor fuel tax is imposed upon:
(i) motor fuel that is brought into and sold in this state in original packages as purely interstate commerce sales;
(ii) motor fuel that is exported from this state if proof of actual exportation on forms prescribed by the commission is made within 180 days after exportation;
(iii) motor fuel or components of motor fuel that is sold and used in this state and distilled from coal, oil shale, rock asphalt, bituminous sand, or solid hydrocarbons located in this state; or
(iv) motor fuel that is sold to the United States government, this state, or the political subdivisions of this state.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the procedures for administering the tax exemption provided under Subsection (3)(a)(iv).
(4) The commission may either collect no tax on motor fuel exported from the state or, upon application, refund the tax paid.
(5) (a) All revenue received by the commission under this part shall be deposited daily with the state treasurer and credited to the Transportation Fund.
(b) An appropriation from the Transportation Fund shall be made to the commission to cover expenses incurred in the administration and enforcement of this part and the collection of the motor fuel tax.
(6) (a) The commission shall determine what amount of motor fuel tax revenue is received from the sale or use of motor fuel used in motorboats registered under the provisions of the State Boating Act, and this amount shall be deposited in a restricted revenue account in the General Fund of the state.
(b) The funds from this account shall be used for the construction, improvement, operation, and maintenance of state-owned boating facilities and for the payment of the costs and expenses of the Division of Parks and Recreation in administering and enforcing the State Boating Act.
(7) (a) The United States government or any of its instrumentalities, this state, or a political subdivision of this state that has purchased motor fuel from a licensed distributor or from a retail dealer of motor fuel and has paid the tax on the motor fuel as provided in this section is entitled to a refund of the tax and may file with the commission for a quarterly refund.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the application and refund provided for in Subsection (7)(a).
(8) (a) The commission shall refund annually into the Off-Highway Vehicle Account in the General Fund an amount equal to the lesser of the following:
(i) .5% of the motor fuel tax revenues collected under this section; or
(ii) $1,050,000.
(b) This amount shall be used as provided in Section 41-22-19.
(c) This Subsection (8) sunsets on July 1, 2010.
(9) (a) Beginning on April 1, 2001, a tax imposed under this section on motor fuel that is sold, used, or received for sale or use in this state is reduced to the extent provided in Subsection (9)(b) if:
(i) a tax imposed on the basis of the sale, use, or receipt for sale or use of the motor fuel is paid to the Navajo Nation;
(ii) the tax described in Subsection (9)(a)(i) is imposed without regard to whether or not the person required to pay the tax is an enrolled member of the Navajo Nation; and
(iii) the commission and the Navajo Nation execute and maintain an agreement as provided in this Subsection (9) for the administration of the reduction of tax.
(b) (i) If but for Subsection (9)(a) the motor fuel is subject to a tax imposed by this section:
(A) the state shall be paid the difference described in Subsection (9)(b)(ii) if that difference is greater than $0; and
(B) a person may not require the state to provide a refund, a credit, or similar tax relief if the difference described in Subsection (9)(b)(ii) is less than or equal to $0.
(ii) The difference described in Subsection (9)(b)(i) is equal to the difference between:
(A) the amount of tax imposed on the motor fuel by this section; less
(B) the tax imposed and collected by the Navajo Nation on the motor fuel.
(c) For purposes of Subsections (9)(a) and (b), the tax paid to the Navajo Nation under a tax imposed by the Navajo Nation on the basis of the sale, use, or receipt for sale or use of motor fuel does not include any interest or penalties a taxpayer may be required to pay to the Navajo Nation.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the procedures for administering the reduction of tax provided under this Subsection (9).
(e) The agreement required under Subsection (9)(a):
(i) may not:
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
(B) provide a reduction of taxes greater than or different from the reduction described in this Subsection (9); or
(C) affect the power of the state to establish rates of taxation;
(ii) shall:
(A) be in writing;
(B) be signed by:
(I) the chair of the commission or the chair's designee; and
(II) a person designated by the Navajo Nation that may bind the Navajo Nation;
(C) be conditioned on obtaining any approval required by federal law;
(D) state the effective date of the agreement; and
(E) state any accommodation the Navajo Nation makes related to the construction and maintenance of state highways and other infrastructure within the Utah portion of the Navajo Nation; and
(iii) may:
(A) notwithstanding Section 59-1-403, authorize the commission to disclose to the Navajo Nation information that is:
(I) contained in a document filed with the commission; and
(II) related to the tax imposed under this section;
(B) provide for maintaining records by the commission or the Navajo Nation; or
(C) provide for inspections or audits of distributors, carriers, or retailers located or doing business within the Utah portion of the Navajo Nation.
(f) (i) If, on or after April 1, 2001, the Navajo Nation changes the tax rate of a tax imposed on motor fuel, any change in the reduction of taxes under this Subsection (9) as a result of the change in the tax rate is not effective until the first day of the calendar quarter after a 60-day period beginning on the date the commission receives notice:
(A) from the Navajo Nation; and
(B) meeting the requirements of Subsection (9)(f)(ii).
(ii) The notice described in Subsection (9)(f)(i) shall state:
(A) that the Navajo Nation has changed or will change the tax rate of a tax imposed on motor fuel;
(B) the effective date of the rate change of the tax described in Subsection (9)(f)(ii)(A); and
(C) the new rate of the tax described in Subsection (9)(f)(ii)(A).
(g) If the agreement required by Subsection (9)(a) terminates, a reduction of tax is not permitted under this Subsection (9) beginning on the first day of the calendar quarter after a 30-day period beginning on the day the agreement terminates.
(h) If there is a conflict between this Subsection (9) and the agreement required by Subsection (9)(a), this Subsection (9) governs.
Section 1062. Section 59-13-201.5 is amended to read:
59-13-201.5
. Refund of taxes impacting Ute tribe and Ute tribal members.(1) In accordance with this section, the Ute tribe may receive a refund from the state of amounts paid to a distributor for taxes imposed on the distributor in accordance with Section 59-13-204 if:
(a) the motor fuel is purchased from a licensed distributor;
(b) the Ute tribe pays the distributor as provided in Section 59-13-204;
(c) the motor fuel is purchased for use by:
(i) the Ute tribe; or
(ii) a Ute tribal member from a retail station:
(A) wholly owned by the Ute tribe; and
(B) that is located on Ute trust land; and
(d) the governor and the Ute tribe execute and maintain an agreement meeting the requirements of Subsection (3).
(2) In addition to the agreement required by Subsection (1), the commission shall enter into an agreement with the Ute tribe that:
(a) provides an allocation formula or procedure for determining:
(i) the amount of motor fuel sold by the Ute tribe to a Ute tribal member; and
(ii) the amount of motor fuel sold by the Ute tribe to a person who is not a Ute tribal member; and
(b) provides a process by which:
(i) the Ute tribe obtains a refund permitted by this section; and
(ii) reports and remits motor fuel tax to the state for sales made to persons who are not Ute tribal members.
(3) The agreement required under Subsection (1):
(a) may not:
(i) authorize the state to impose a tax in addition to a tax imposed under this chapter; or
(ii) provide a refund, credit, or similar tax relief that is greater or different than the refund permitted under this section;
(iii) affect the power of the state to establish rates of taxation; and
(b) shall:
(i) provide that the state agrees to allow the refund described in this section;
(ii) be in writing;
(iii) be signed by:
(A) the governor; and
(B) the chair of the Business Committee of the Ute tribe;
(iv) be conditioned on obtaining any approval required by federal law; and
(v) state the effective date of the agreement.
(4) (a) The governor shall report to the commission by no later than February 1 of each year as to whether or not an agreement meeting the requirements of this Subsection (4) is in effect.
(b) If an agreement meeting the requirements of this Subsection (4) is terminated, the refund permitted under this section is not allowed beginning the January 1 following the date the agreement terminates.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules regarding the procedures for seeking a refund agreed to under the agreement described in Subsection (2).
Section 1063. Section 59-13-202.5 is amended to read:
59-13-202.5
. Refunds of tax due to fire, flood, storm, accident, crime, or discharge in bankruptcy -- Filing claims and affidavits -- Commission approval -- Rulemaking -- Appeals -- Penalties.(1) (a) A retailer, wholesaler, or licensed distributor, who without fault, sustains a loss or destruction of 8,000 or more gallons of motor fuel in a single incident due to fire, flood, storm, accident, or the commission of a crime and who has paid or is required to pay the tax on the motor fuel as provided by this part, is entitled to a refund or credit of the tax subject to the conditions and limitations provided under this section.
(b) The claimant shall file a claim for a refund or credit with the commission within 90 days of the incident.
(c) Any part of a loss or destruction eligible for indemnification under an insurance policy for the taxes paid or required on the loss or destruction of motor fuel is not eligible for a refund or credit under this section.
(d) Any claimant filing a claim for a refund or credit shall furnish any or all of the information outlined in this section upon request of the commission.
(e) The burden of proof of loss or destruction is on the claimant who shall provide evidence of loss or destruction to the satisfaction of the commission.
(f) (i) The claim shall include an affidavit containing the:
(A) name of claimant;
(B) claimant's address;
(C) date, time, and location of the incident;
(D) cause of the incident;
(E) name of the investigating agencies at the scene;
(F) number of gallons actually lost from sale; and
(G) information on any insurance coverages related to the incident.
(ii) The claimant shall support the claim by submitting the original invoices or copy of the original invoices.
(iii) This original claim and all information contained in it constitutes a permanent file with the commission in the name of the claimant.
(2) (a) A retailer, wholesaler, or licensed distributor who has paid the tax on motor fuel as provided by this part is entitled to a refund for taxes paid on that portion of an account that:
(i) relates to 4,500 or more gallons of motor fuel purchased in a single transaction for which no payment has been received; and
(ii) has been discharged in a bankruptcy proceeding.
(b) The claimant shall file a claim for refund with the commission within 90 days from the date of the discharge.
(c) Any claimant filing a claim for a refund shall furnish any or all of the information outlined in this section upon request of the commission.
(d) The burden of proof of discharge is on the claimant who shall provide evidence of discharge to the satisfaction of the commission.
(e) The claim shall include an affidavit containing the following:
(i) the name of the claimant;
(ii) the claimant's address;
(iii) the name of the debtor that received a discharge in bankruptcy; and
(iv) the portion of the account that is subject to an order granting a discharge.
(f) The claimant shall support the claim by submitting:
(i) the original invoices or a copy of the original invoices; and
(ii) a certified copy of the notice of discharge.
(g) This original claim and all information contained in it constitutes a permanent file with the commission in the name of the claimant.
(h) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall promulgate rules for the allocation of the discharge under this Subsection (2) to maximize the claimant's refund amount.
(3) Upon commission approval of the claim for a refund, the commission shall pay the amount found due to the claimant. The total amount of claims for refunds shall be paid from the Transportation Fund.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may promulgate rules to enforce this part, and may refuse to accept unsubstantiated evidence for the claim. If the commission is not satisfied with the evidence submitted in connection with the claim, it may reject the claim or require additional evidence.
(5) Any person aggrieved by the decision of the commission with respect to a refund or credit may file a request for agency action, requesting a hearing before the commission.
(6) Any person who makes any false claim, report, or statement, either as claimant, agent, or creditor, with intent to defraud or secure a refund or credit to which the claimant is not entitled, is subject to the criminal penalties provided under Section 59-1-401, and the commission shall initiate the filing of a complaint for alleged violations of this part. In addition to these penalties, the person may not receive any refund or credit as a claimant or as a creditor of a claimant for refund or credit for a period of five years.
(7) Any refund or credit made under this section does not affect any deduction allowed under Section 59-13-207.
Section 1064. Section 59-13-203.1 is amended to read:
59-13-203.1
. Definitions -- License requirements -- Penalty -- Application process and requirements -- Fee not required -- Bonds.(1) As used in this section:
(a) "applicant" means a person that:
(i) is required by this section to obtain a license; and
(ii) submits an application:
(A) to the commission; and
(B) for a license under this section;
(b) "application" means an application for a license under this section;
(c) "fiduciary of the applicant" means a person that:
(i) is required to collect, truthfully account for, and pay over a tax under this part for an applicant; and
(ii) (A) is a corporate officer of the applicant described in Subsection (1)(c)(i);
(B) is a director of the applicant described in Subsection (1)(c)(i);
(C) is an employee of the applicant described in Subsection (1)(c)(i);
(D) is a partner of the applicant described in Subsection (1)(c)(i);
(E) is a trustee of the applicant described in Subsection (1)(c)(i); or
(F) has a relationship to the applicant described in Subsection (1)(c)(i) that is similar to a relationship described in Subsections (1)(c)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) "fiduciary of the licensee" means a person that:
(i) is required to collect, truthfully account for, and pay over a tax under this part for a licensee; and
(ii) (A) is a corporate officer of the licensee described in Subsection (1)(d)(i);
(B) is a director of the licensee described in Subsection (1)(d)(i);
(C) is an employee of the licensee described in Subsection (1)(d)(i);
(D) is a partner of the licensee described in Subsection (1)(d)(i);
(E) is a trustee of the licensee described in Subsection (1)(d)(i); or
(F) has a relationship to the licensee described in Subsection (1)(d)(i) that is similar to a relationship described in Subsections (1)(d)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(e) "license" means a license under this section; and
(f) "licensee" means a person that is licensed under this section by the commission.
(2) A person that is required to collect a tax under this part is guilty of a criminal violation as provided in Section 59-1-401 if before obtaining a license under this section that person engages in business within the state.
(3) The license described in Subsection (2):
(a) shall be granted and issued:
(i) by the commission in accordance with this section;
(ii) without a license fee; and
(iii) if:
(A) an applicant:
(I) states the applicant's name and address in the application; and
(II) provides other information in the application that the commission may require; and
(B) the person meets the requirements of this section to be granted a license as determined by the commission;
(b) may not be assigned to another person; and
(c) is valid:
(i) only for the person named on the license; and
(ii) until:
(A) the person described in Subsection (3)(c)(i):
(I) ceases to do business; or
(II) changes that person's business address; or
(B) the commission revokes the license.
(4) The commission shall review an application and determine whether:
(a) the applicant meets the requirements of this section to be issued a license; and
(b) a bond is required to be posted with the commission in accordance with Subsection (5) before the applicant may be issued a license.
(5) (a) An applicant shall post a bond with the commission before the commission may issue the applicant a license if:
(i) a license under this section was revoked for a delinquency under this part for:
(A) the applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part; or
(ii) there is a delinquency in paying a tax under this part for:
(A) the applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part.
(b) If the commission determines it is necessary to ensure compliance with this part, the commission may require a licensee to:
(i) for a licensee that has not posted a bond under this section with the commission, post a bond with the commission in accordance with Subsections (5)(c) through (g); or
(ii) for a licensee that has posted a bond under this section with the commission, increase the amount of the bond posted with the commission.
(c) A bond under this Subsection (5) shall be:
(i) executed by:
(A) for an applicant, the applicant as principal, with a corporate surety; or
(B) for a licensee, the licensee as principal, with a corporate surety; and
(ii) payable to the commission conditioned upon the faithful performance of all of the requirements of this part including:
(A) the payment of all taxes under this part;
(B) the payment of any:
(I) penalty as provided in Section 59-1-401; or
(II) interest as provided in Section 59-1-402; or
(C) any other obligation of the:
(I) applicant under this part; or
(II) licensee under this part.
(d) Except as provided in Subsection (5)(f), the commission shall calculate the amount of a bond under this Subsection (5) on the basis of:
(i) commission estimates of:
(A) an applicant's tax liability under this part; or
(B) a licensee's tax liability under this part; and
(ii) the amount of a delinquency described in Subsection (5)(e) if:
(A) a license under this section was revoked for a delinquency under this part for:
(I) (Aa) an applicant; or
(Bb) a licensee;
(II) a fiduciary of the:
(Aa) applicant; or
(Bb) licensee; or
(III) a person for which the applicant, licensee, fiduciary of the applicant, or fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this part; or
(B) there is a delinquency in paying a tax under this part for:
(I) (Aa) an applicant; or
(Bb) a licensee;
(II) a fiduciary of the:
(Aa) applicant; or
(Bb) licensee; or
(III) a person for which the applicant, licensee, fiduciary of the applicant, or fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this part.
(e) Except as provided in Subsection (5)(f), for purposes of Subsection (5)(d)(ii):
(i) for an applicant, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the applicant;
(II) a fiduciary of the applicant; or
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part; or
(B) the amount of tax that any of the following owe under this part:
(I) the applicant;
(II) a fiduciary of the applicant; and
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part; or
(ii) for a licensee, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the licensee;
(II) a fiduciary of the licensee; or
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this part; or
(B) the amount of tax that any of the following owe under this part:
(I) the licensee;
(II) a fiduciary of the licensee; and
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over a tax under this part.
(f) Notwithstanding Subsection (5)(d) or (e), a bond required by this Subsection (5) may not:
(i) be less than $10,000; or
(ii) exceed $500,000.
(g) (i) Subject to Subsection (5)(g)(ii), a bond required by this section may be combined into one bond with any other bond required by this chapter.
(ii) For purposes of Subsection (5)(g)(i), if a bond required by this section is combined into one bond with any other bond required by this chapter, the amount of that combined bond is determined by:
(A) calculating the separate amount of each bond required for each type of fuel included in the combined bond; and
(B) aggregating the separate amounts calculated in Subsection (5)(g)(ii)(A).
(6) (a) The commission shall revoke a license under this section if:
(i) a licensee violates any provision of this part; and
(ii) before the commission revokes the license the commission provides the licensee:
(A) reasonable notice; and
(B) a hearing.
(b) If the commission revokes a licensee's license in accordance with Subsection (6)(a), the commission may not issue another license to that licensee until that licensee complies with the requirements of this part, including:
(i) paying any:
(A) tax due under this part;
(B) penalty as provided in Section 59-1-401; or
(C) interest as provided in Section 59-1-402; and
(ii) posting a bond in accordance with Subsection (5).
Section 1065. Section 59-13-301 is amended to read:
59-13-301
. Tax basis -- Rate -- Exemptions -- Revenue deposited with treasurer and credited to Transportation Fund -- Reduction of tax in limited circumstances.(1) (a) Except as provided in Subsections (2), (3), and (11) and Section 59-13-304, a tax is imposed at the same rate imposed under Subsection 59-13-201(1)(a) on the:
(i) removal of undyed diesel fuel from any refinery;
(ii) removal of undyed diesel fuel from any terminal;
(iii) entry into the state of any undyed diesel fuel for consumption, use, sale, or warehousing;
(iv) sale of undyed diesel fuel to any person who is not registered as a supplier under this part unless the tax has been collected under this section;
(v) any untaxed special fuel blended with undyed diesel fuel; or
(vi) use of untaxed special fuel, other than a clean special fuel.
(b) The tax imposed under this section shall only be imposed once upon any special fuel.
(2) (a) No special fuel tax is imposed or collected upon dyed diesel fuel which:
(i) is sold or used for any purpose other than to operate or propel a motor vehicle upon the public highways of the state, but this exemption applies only in those cases where the purchasers or the users of special fuel establish to the satisfaction of the commission that the special fuel was used for purposes other than to operate a motor vehicle upon the public highways of the state; or
(ii) is sold to this state or any of its political subdivisions.
(b) No special fuel tax is imposed on undyed diesel fuel which:
(i) is sold to the United States government or any of its instrumentalities or to this state or any of its political subdivisions;
(ii) is exported from this state if proof of actual exportation on forms prescribed by the commission is made within 180 days after exportation;
(iii) is used in a vehicle off-highway;
(iv) is used to operate a power take-off unit of a vehicle;
(v) is used for off-highway agricultural uses;
(vi) is used in a separately fueled engine on a vehicle that does not propel the vehicle upon the highways of the state; or
(vii) is used in machinery and equipment not registered and not required to be registered for highway use.
(3) No tax is imposed or collected on special fuel if it is:
(a) purchased for business use in machinery and equipment not registered and not required to be registered for highway use; and
(b) used pursuant to the conditions of a state implementation plan approved under Title 19, Chapter 2, Air Conservation Act.
(4) Upon request of a buyer meeting the requirements under Subsection (3), the Division of Air Quality shall issue an exemption certificate that may be shown to a seller.
(5) The special fuel tax shall be paid by the supplier.
(6) (a) The special fuel tax shall be paid by every user who is required by Sections 59-13-303 and 59-13-305 to obtain a special fuel user permit and file special fuel tax reports.
(b) The user shall receive a refundable credit for special fuel taxes paid on purchases which are delivered into vehicles and for which special fuel tax liability is reported.
(7) (a) Except as provided under Subsections (7)(b) and (c), all revenue received by the commission from taxes and license fees under this part shall be deposited daily with the state treasurer and credited to the Transportation Fund.
(b) An appropriation from the Transportation Fund shall be made to the commission to cover expenses incurred in the administration and enforcement of this part and the collection of the special fuel tax.
(c) Five dollars of each special fuel user trip permit fee paid under Section 59-13-303 may be used by the commission as a dedicated credit to cover the costs of electronic credentialing as provided in Section 41-1a-303.
(8) The commission may either collect no tax on special fuel exported from the state or, upon application, refund the tax paid.
(9) (a) The United States government or any of its instrumentalities, this state, or a political subdivision of this state that has purchased special fuel from a supplier or from a retail dealer of special fuel and has paid the tax on the special fuel as provided in this section is entitled to a refund of the tax and may file with the commission for a quarterly refund in a manner prescribed by the commission.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the application and refund provided for in Subsection (9)(a).
(10) (a) The purchaser shall pay the tax on diesel fuel purchased for uses under Subsections (2)(b)(i), (iii), (iv), (v), (vi), and (vii) and apply for a refund for the tax paid as provided in Subsection (9) and this Subsection (10).
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the application and refund for off-highway and nonhighway uses provided under Subsections (2)(b)(iii), (iv), (vi), and (vii).
(c) A refund of tax paid under this part on diesel fuel used for nonhighway agricultural uses shall be made in accordance with the tax return procedures under Section 59-13-202.
(11) (a) Beginning on April 1, 2001, a tax imposed under this section on special fuel is reduced to the extent provided in Subsection (11)(b) if:
(i) the Navajo Nation imposes a tax on the special fuel;
(ii) the tax described in Subsection (11)(a)(i) is imposed without regard to whether the person required to pay the tax is an enrolled member of the Navajo Nation; and
(iii) the commission and the Navajo Nation execute and maintain an agreement as provided in this Subsection (11) for the administration of the reduction of tax.
(b) (i) If but for Subsection (11)(a) the special fuel is subject to a tax imposed by this section:
(A) the state shall be paid the difference described in Subsection (11)(b)(ii) if that difference is greater than $0; and
(B) a person may not require the state to provide a refund, a credit, or similar tax relief if the difference described in Subsection (11)(b)(ii) is less than or equal to $0.
(ii) The difference described in Subsection (11)(b)(i) is equal to the difference between:
(A) the amount of tax imposed on the special fuel by this section; less
(B) the tax imposed and collected by the Navajo Nation on the special fuel.
(c) For purposes of Subsections (11)(a) and (b), the tax paid to the Navajo Nation on the special fuel does not include any interest or penalties a taxpayer may be required to pay to the Navajo Nation.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules governing the procedures for administering the reduction of tax provided under this Subsection (11).
(e) The agreement required under Subsection (11)(a):
(i) may not:
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
(B) provide a reduction of taxes greater than or different from the reduction described in this Subsection (11); or
(C) affect the power of the state to establish rates of taxation;
(ii) shall:
(A) be in writing;
(B) be signed by:
(I) the chair of the commission or the chair's designee; and
(II) a person designated by the Navajo Nation that may bind the Navajo Nation;
(C) be conditioned on obtaining any approval required by federal law;
(D) state the effective date of the agreement; and
(E) state any accommodation the Navajo Nation makes related to the construction and maintenance of state highways and other infrastructure within the Utah portion of the Navajo Nation; and
(iii) may:
(A) notwithstanding Section 59-1-403, authorize the commission to disclose to the Navajo Nation information that is:
(I) contained in a document filed with the commission; and
(II) related to the tax imposed under this section;
(B) provide for maintaining records by the commission or the Navajo Nation; or
(C) provide for inspections or audits of suppliers, distributors, carriers, or retailers located or doing business within the Utah portion of the Navajo Nation.
(f) (i) If, on or after April 1, 2001, the Navajo Nation changes the tax rate of a tax imposed on special fuel, any change in the amount of the reduction of taxes under this Subsection (11) as a result of the change in the tax rate is not effective until the first day of the calendar quarter after a 60-day period beginning on the date the commission receives notice:
(A) from the Navajo Nation; and
(B) meeting the requirements of Subsection (11)(f)(ii).
(ii) The notice described in Subsection (11)(f)(i) shall state:
(A) that the Navajo Nation has changed or will change the tax rate of a tax imposed on special fuel;
(B) the effective date of the rate change of the tax described in Subsection (11)(f)(ii)(A); and
(C) the new rate of the tax described in Subsection (11)(f)(ii)(A).
(g) If the agreement required by Subsection (11)(a) terminates, a reduction of tax is not permitted under this Subsection (11) beginning on the first day of the calendar quarter after a 30-day period beginning on the day the agreement terminates.
(h) If there is a conflict between this Subsection (11) and the agreement required by Subsection (11)(a), this Subsection (11) governs.
Section 1066. Section 59-13-301.5 is amended to read:
59-13-301.5
. Refund of taxes impacting Ute tribe and Ute tribal members.(1) In accordance with this section, the Ute tribe may receive a refund from the state of amounts paid in accordance with Section 59-13-301 if:
(a) the amounts paid by the Ute tribe when it purchases the special fuel includes the amount paid in taxes on the special fuel;
(b) the special fuel is purchased for use by:
(i) the Ute tribe; or
(ii) a Ute tribal member from a retail station that is:
(A) wholly owned by the Ute tribe; and
(B) located on Ute trust land; and
(c) the governor and the Ute tribe execute and maintain an agreement meeting the requirements of Subsection (3).
(2) In addition to the agreement required by Subsection (1), the commission shall enter into an agreement with the Ute tribe that:
(a) provides an allocation formula or procedure for determining:
(i) the amount of special fuel sold by the Ute tribe to a Ute tribal member; and
(ii) the amount of special fuel sold by the Ute tribe to a person who is not a Ute tribal member; and
(b) provides a process by which:
(i) the Ute tribe obtains a refund permitted by this section; and
(ii) reports and remits special fuel tax to the state for sales made to persons who are not Ute tribal members.
(3) The agreement required under Subsection (1):
(a) may not:
(i) authorize the state to impose a tax in addition to a tax imposed under this chapter;
(ii) provide a refund, credit, or similar tax relief that is greater or different than the refund permitted under this section; or
(iii) affect the power of the state to establish rates of taxation; and
(b) shall:
(i) provide that the state agrees to allow the refund described in this section;
(ii) be in writing;
(iii) be signed by:
(A) the governor; and
(B) the chair of the Business Committee of the Ute tribe;
(iv) be conditioned on obtaining any approval required by federal law; and
(v) state the effective date of the agreement.
(4) (a) The governor shall report to the commission by no later than February 1 of each year as to whether or not an agreement meeting the requirements of this Subsection (4) is in effect.
(b) If an agreement meeting the requirements of this Subsection (4) is terminated, the refund permitted under this section is not allowed beginning the January 1 following the date the agreement terminates.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules regarding the procedures for seeking a refund agreed to under the agreement described in Subsection (2).
Section 1067. Section 59-13-302 is amended to read:
59-13-302
. Definitions -- License requirements -- Penalty -- Application process and requirements -- Fee not required -- Bonds -- Discontinuance of business -- Liens upon property.(1) As used in this section:
(a) "applicant" means a person that:
(i) is required by this section to obtain a license; and
(ii) submits an application:
(A) to the commission; and
(B) for a license under this section;
(b) "application" means an application for a license under this section;
(c) "fiduciary of the applicant" means a person that:
(i) is required to collect, truthfully account for, and pay over an amount under this part for an applicant; and
(ii) (A) is a corporate officer of the applicant described in Subsection (1)(c)(i);
(B) is a director of the applicant described in Subsection (1)(c)(i);
(C) is an employee of the applicant described in Subsection (1)(c)(i);
(D) is a partner of the applicant described in Subsection (1)(c)(i);
(E) is a trustee of the applicant described in Subsection (1)(c)(i); or
(F) has a relationship to the applicant described in Subsection (1)(c)(i) that is similar to a relationship described in Subsections (1)(c)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) "fiduciary of the licensee" means a person that:
(i) is required to collect, truthfully account for, and pay over an amount under this part for a licensee; and
(ii) (A) is a corporate officer of the licensee described in Subsection (1)(d)(i);
(B) is a director of the licensee described in Subsection (1)(d)(i);
(C) is an employee of the licensee described in Subsection (1)(d)(i);
(D) is a partner of the licensee described in Subsection (1)(d)(i);
(E) is a trustee of the licensee described in Subsection (1)(d)(i); or
(F) has a relationship to the licensee described in Subsection (1)(d)(i) that is similar to a relationship described in Subsections (1)(d)(ii)(A) through (E) as determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(e) "license" means a license under this section; and
(f) "licensee" means a person that is licensed under this section by the commission.
(2) A person that is required to collect an amount under this part is guilty of a criminal violation as provided in Section 59-1-401 if before obtaining a license under this section that person engages in business within the state.
(3) The license described in Subsection (2):
(a) shall be granted and issued:
(i) by the commission in accordance with this section;
(ii) without a license fee; and
(iii) if:
(A) an applicant:
(I) states the applicant's name and address in the application; and
(II) provides other information in the application that the commission may require; and
(B) the person meets the requirements of this section to be granted a license as determined by the commission;
(b) may not be assigned to another person; and
(c) is valid:
(i) only for the person named on the license; and
(ii) until:
(A) the person described in Subsection (3)(c)(i):
(I) ceases to do business; or
(II) changes that person's business address; or
(B) the commission revokes the license.
(4) The commission shall review an application and determine whether:
(a) the applicant meets the requirements of this section to be issued a license; and
(b) a bond is required to be posted with the commission in accordance with Subsection (5) before the applicant may be issued a license.
(5) (a) An applicant shall post a bond with the commission before the commission may issue the applicant a license if:
(i) a license under this section was revoked for a delinquency under this part for:
(A) the applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part; or
(ii) there is a delinquency in paying a tax under this part for:
(A) the applicant;
(B) a fiduciary of the applicant; or
(C) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over a tax under this part.
(b) If the commission determines it is necessary to ensure compliance with this part, the commission may require a licensee to:
(i) for a licensee that has not posted a bond under this section with the commission, post a bond with the commission in accordance with Subsections (5)(c) through (g); or
(ii) for a licensee that has posted a bond under this section with the commission, increase the amount of the bond posted with the commission.
(c) A bond under this Subsection (5) shall be:
(i) executed by:
(A) for an applicant, the applicant as principal, with a corporate surety; or
(B) for a licensee, the licensee as principal, with a corporate surety; and
(ii) payable to the commission conditioned upon the faithful performance of all of the requirements of this part including:
(A) the payment of all amounts under this part;
(B) the payment of any:
(I) penalty as provided in Section 59-1-401; or
(II) interest as provided in Section 59-1-402; or
(C) any other obligation of the:
(I) applicant under this part; or
(II) licensee under this part.
(d) Except as provided in Subsection (5)(f), the commission shall calculate the amount of a bond under this Subsection (5) on the basis of:
(i) commission estimates of:
(A) an applicant's liability for any amount under this part; or
(B) a licensee's liability for any amount under this part; and
(ii) the amount of a delinquency described in Subsection (5)(e) if:
(A) a license under this section was revoked for a delinquency under this part for:
(I) (Aa) an applicant; or
(Bb) a licensee;
(II) a fiduciary of the:
(Aa) applicant; or
(Bb) licensee; or
(III) a person for which the applicant, licensee, fiduciary of the applicant, or fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part; or
(B) there is a delinquency in paying an amount under this part for:
(I) (Aa) an applicant; or
(Bb) a licensee;
(II) a fiduciary of the:
(Aa) applicant; or
(Bb) licensee; or
(III) a person for which the applicant, licensee, fiduciary of the applicant, or fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part.
(e) Except as provided in Subsection (5)(f), for purposes of Subsection (5)(d)(ii):
(i) for an applicant, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the applicant;
(II) a fiduciary of the applicant; or
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part; or
(B) the amount that any of the following owe under this part:
(I) the applicant;
(II) a fiduciary of the applicant; and
(III) a person for which the applicant or the fiduciary of the applicant is required to collect, truthfully account for, and pay over an amount under this part; or
(ii) for a licensee, the amount of the delinquency is the sum of:
(A) the amount of any delinquency that served as a basis for revoking the license under this section of:
(I) the licensee;
(II) a fiduciary of the licensee; or
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part; or
(B) the amount that any of the following owe under this part:
(I) the licensee;
(II) a fiduciary of the licensee; and
(III) a person for which the licensee or the fiduciary of the licensee is required to collect, truthfully account for, and pay over an amount under this part.
(f) Notwithstanding Subsection (5)(d) or (e), a bond required by this Subsection (5) may not:
(i) be less than $10,000; or
(ii) exceed $500,000.
(g) (i) Subject to Subsection (5)(g)(ii), a bond required by this section may be combined into one bond with any other bond required by this chapter.
(ii) For purposes of Subsection (5)(g)(i), if a bond required by this section is combined into one bond with any other bond required by this chapter, the amount of that combined bond is determined by:
(A) calculating the separate amount of each bond required for each type of fuel included in the combined bond; and
(B) aggregating the separate amounts calculated in Subsection (5)(g)(ii)(A).
(6) (a) The commission shall revoke a license under this section if:
(i) a licensee violates any provision of this part; and
(ii) before the commission revokes the license the commission provides the licensee:
(A) reasonable notice; and
(B) a hearing.
(b) If the commission revokes a licensee's license in accordance with Subsection (6)(a), the commission may not issue another license to that licensee until that licensee complies with the requirements of this part, including:
(i) paying any:
(A) amounts due under this part;
(B) penalty as provided in Section 59-1-401; or
(C) interest as provided in Section 59-1-402; and
(ii) posting a bond in accordance with Subsection (5).
(7) (a) If any person ceases to be a supplier within the state by reason of the discontinuance, sale, or transfer of the person's business, the supplier shall notify the commission in writing at the time the discontinuance, sale, or transfer takes effect.
(b) The notice shall give the date of discontinuance and, in the event of a sale, the date of the sale and the name and address of the purchaser or transferee.
(c) Taxes on all special fuel delivery or removal made prior to the discontinuance, sale, or transfer, shall become due and payable on the date of discontinuance, sale, or transfer.
(d) The supplier shall make a report and pay all taxes, interest, and penalties and surrender to the commission the license certificate that was issued to the supplier by the commission.
(8) (a) The tax imposed by this part shall be a lien upon the property of any supplier liable for an amount of tax that is required to be collected, if the supplier sells the business, stock of goods, or quits business, and if the supplier fails to make a final return and payment within 15 days after the date of selling or quitting business.
(b) The successor or assigns, if any, shall be required to withhold a sufficient amount of the purchase money to cover the amount of the taxes that are required to be collected and interest or penalties due and paid under Sections 59-1-401 and 59-1-402 until the former owner produces a receipt from the commission showing that the taxes have been paid or a certificate stating that no amount of tax is due. If the purchaser of a business or stock of goods fails to withhold sufficient purchase money, the purchaser shall be personally liable for the payment of the amount that is due.
Section 1068. Section 59-13-322 is amended to read:
59-13-322
. Refunds of tax due to fire, flood, storm, accident, crime, or discharge in bankruptcy -- Filing claims and affidavits -- Commission approval -- Rulemaking -- Appeals -- Penalties.(1) (a) A retailer, wholesaler, or licensed supplier, who without fault, sustains a loss or destruction of 7,000 or more gallons of diesel fuel in a single incident due to fire, flood, storm, accident, or the commission of a crime and who has paid or is required to pay the tax on the special fuel as provided by this part, is entitled to a refund or credit of the tax subject to the conditions and limitations provided under this section.
(b) The claimant shall file a claim for a refund or credit with the commission within 90 days of the incident.
(c) Any part of a loss or destruction eligible for indemnification under an insurance policy for the taxes paid or required on the loss or destruction of special fuel is not eligible for a refund or credit under this section.
(d) Any claimant filing a claim for a refund or credit shall furnish any or all of the information outlined in this section upon request of the commission.
(e) The burden of proof of loss or destruction is on the claimant who shall provide evidence of loss or destruction to the satisfaction of the commission.
(f) (i) The claim shall include an affidavit containing the:
(A) name of claimant;
(B) claimant's address;
(C) date, time, and location of the incident;
(D) cause of the incident;
(E) name of the investigating agencies at the scene;
(F) number of gallons actually lost from sale; and
(G) information on any insurance coverages related to the incident.
(ii) The claimant shall support the claim by submitting the original invoices or copy of the original invoices.
(iii) This original claim and all information contained in it constitutes a permanent file with the commission in the name of the claimant.
(2) (a) A retailer, wholesaler, or licensed distributor who has paid the tax on special fuel as provided by this part is entitled to a refund for taxes paid on that portion of an account that:
(i) relates to 4,500 or more gallons of special fuel purchased in a single transaction for which no payment has been received; and
(ii) has been discharged in a bankruptcy proceeding.
(b) The claimant shall file a claim for refund with the commission within 90 days from the date of the discharge.
(c) Any claimant filing a claim for a refund shall furnish any or all of the information outlined in this section upon request of the commission.
(d) The burden of proof of discharge is on the claimant who shall provide evidence of discharge to the satisfaction of the commission.
(e) The claim shall include an affidavit containing the following:
(i) the name of the claimant;
(ii) the claimant's address;
(iii) the name of the debtor that received a discharge in bankruptcy; and
(iv) the portion of the account that is subject to an order granting a discharge.
(f) The claimant shall support the claim by submitting:
(i) the original invoices or a copy of the original invoices; and
(ii) a certified copy of the notice of discharge.
(g) This original claim and all information contained in it constitutes a permanent file with the commission in the name of the claimant.
(h) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall promulgate rules for the allocation of the discharge under this Subsection (2) to maximize the claimant's refund amount.
(3) Upon commission approval of the claim for a refund, the commission shall pay the amount found due to the claimant. The total amount of claims for refunds shall be paid from the Transportation Fund.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may promulgate rules to enforce this part, and may refuse to accept unsubstantiated evidence for the claim. If the commission is not satisfied with the evidence submitted in connection with the claim, it may reject the claim or require additional evidence.
(5) Any person aggrieved by the decision of the commission with respect to a refund or credit may file a request for agency action, requesting a hearing before the commission.
(6) Any person who makes any false claim, report, or statement, either as claimant, agent, or creditor, with intent to defraud or secure a refund or credit to which the claimant is not entitled, is subject to the criminal penalties provided under Section 59-1-401, and the commission shall initiate the filing of a complaint for alleged violations of this part. In addition to these penalties, the person may not receive any refund or credit as a claimant or as a creditor of a claimant for refund or credit for a period of five years.
Section 1069. Section 59-13-404 is amended to read:
59-13-404
. Refunds of aviation fuel tax -- Filing claims -- Commission approval -- Rulemaking -- Appeals -- Penalties.(1) A federally certificated air carrier is entitled to a $.015 refund or credit of the aviation fuel tax paid on gallons of aviation fuel purchased at the Salt Lake International Airport, subject to the conditions and limitations provided under this section.
(2) (a) A federally certificated air carrier shall file a claim for a refund or credit with the commission within 90 days of the end of the tax year for which a claim is made.
(b) A federally certificated air carrier filing a claim for a refund or credit shall furnish any or all of the information outlined in this section upon request of the commission.
(3) (a) The claim shall include an application containing:
(i) the name of the federally certificated air carrier claimant;
(ii) the number of gallons actually purchased;
(iii) the place of purchase; and
(iv) any other information required by the commission to support the claim.
(b) This original claim and all information contained in it, constitutes a permanent file with the commission in the name of the federally certificated air carrier claimant.
(4) Upon commission approval of the claim for a refund, the commission shall pay the amount found due to the federally certificated air carrier claimant. The total amount of claims for refunds shall be paid from the Transportation Fund.
(5) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may promulgate rules to enforce this part, and may refuse to accept unsubstantiated evidence for the claim.
(b) If the commission is not satisfied with the evidence submitted in connection with the claim, it may reject the claim or require additional evidence.
(6) A federally certificated air carrier aggrieved by the decision of the commission with respect to a refund or credit may file a request for agency action, requesting a hearing before the commission.
(7) A federally certificated air carrier who makes any false claim, report, or statement, with intent to defraud or secure a refund or credit to which the claimant is not entitled, is subject to the criminal penalties provided under Section 59-1-401, and the commission shall initiate the filing of a complaint for alleged violations of this part. In addition to these penalties, the federally certificated air carrier may not receive any refund or credit as a claimant for a period of five years.
Section 1070. Section 59-13-502 is amended to read:
59-13-502
. Interstate fuel tax agreements -- Compliance procedures.(1) After the commission's membership in an agreement provided for under Section 59-13-501 becomes effective, a taxpayer shall, for vehicles powered by special fuel qualifying under the agreement, be required to pay the special fuel tax at the rate established under Part 3 in accordance with the provisions of the agreement.
(2) Any taxpayer who has vehicles, qualifying under an agreement entered into under this part, which operate on motor fuel as defined under Section 59-13-102, shall account for and pay tax on fuel used in those vehicles at the rate established under Part 2 in accordance with the agreement, and receive credit for taxes paid under Part 2 on purchases as provided for in the agreement.
(3) The statutory notice procedures of this chapter, penalty provisions of Section 59-1-401, and adjudicative procedures in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, are applicable to this part.
Section 1071. Section 59-14-204 is amended to read:
59-14-204
. Tax basis -- Rate -- Future increase -- Restricted account -- Use of revenues.(1) Except for cigarettes described under Subsection 59-14-210(3), there is levied a tax upon the sale, use, storage, or distribution of cigarettes in the state.
(2) The rates of the tax levied under Subsection (1) are:
(a) 3.475 cents on each cigarette, for all cigarettes weighing not more than three pounds per thousand cigarettes; and
(b) 4.075 cents on each cigarette, for all cigarettes weighing in excess of three pounds per thousand cigarettes.
(3) Except as otherwise provided under this chapter, the tax levied under Subsection (1) shall be paid by any person who is the manufacturer, jobber, importer, distributor, wholesaler, retailer, user, or consumer.
(4) The tax rates specified in this section shall be increased by the commission by the same amount as any future reduction in the federal excise tax on cigarettes.
(5) (a) There is created within the General Fund a restricted account known as the "Cigarette Tax Restricted Account."
(b) Beginning on July 1, 1998, $250,000 of the revenues generated by the increase in the cigarette tax under this section enacted during the 1997 Annual General Session shall be annually deposited into the account.
(c) The Department of Health shall expend the funds deposited in the account under Subsection (5)(b) for a tobacco prevention and control media campaign targeted towards children.
(d) The following revenue generated from the tax increase imposed under Subsection (1) during the 2002 General Session shall be deposited in the Cigarette Tax Restricted Account:
(i) 22% of the revenue to be annually appropriated to the Department of Health for tobacco prevention, reduction, cessation, and control programs;
(ii) 15% of the revenue to be annually appropriated to the University of Utah Health Sciences Center for the Huntsman Cancer Institute for cancer research; and
(iii) 21% of the revenue to be annually appropriated to the University of Utah Health Sciences Center for medical education at the University of Utah School of Medicine.
(e) Any balance remaining in the Cigarette Tax Restricted Account at the end of the fiscal year shall be appropriated during the next fiscal year for the purposes set forth in Subsections (5)(d)(i) through (5)(d)(iii) in proportion to the amount of revenue deposited into the account for each purpose.
(f) The Legislature shall give particular consideration to appropriating any revenues resulting from the change in tax rates under Subsection (2) adopted during the 2002 Annual General Session and not otherwise appropriated pursuant to Subsection (5)(d) to enhance Medicaid provider reimbursement rates and medical coverage for the uninsured.
(g) Any program or entity that receives funding under Subsection (5)(d) shall provide an annual report to the Health and Human Services Interim Committee no later that September 1 of each year. The report shall include:
(i) the amount funded;
(ii) the amount expended;
(iii) a description of the effectiveness of the program; and
(iv) if the program is a tobacco cessation program, the report required in Section [63-97-401] 51-9-203.
Section 1072. Section 59-14-407 is amended to read:
59-14-407
. Reporting of manufacturer name.(1) As used in this section:
(a) "Cigarette" has the same meaning as defined in Section 59-22-202.
(b) "Tobacco product manufacturer" has the same meaning as defined in Section 59-22-202.
(2) Any manufacturer, distributor, wholesaler, or retail dealer who under Section 59-14-205 affixes a stamp to an individual package or container of cigarettes manufactured or sold by a tobacco product manufacturer required to place funds into escrow under Section 59-22-203 shall report quarterly to the commission:
(a) the quantity of cigarettes in the package or container; and
(b) the name of the manufacturer of the cigarettes.
(3) Any manufacturer, distributor, wholesaler, retail dealer, or other person who is required to pay the tax levied under Part 3, Tobacco Products, on a tobacco product defined as a cigarette under Section 59-22-202 and manufactured or sold by a tobacco product manufacturer required to place funds into escrow under Section 59-22-203 shall report quarterly to the commission:
(a) the quantity of cigarettes upon which the tax is levied; and
(b) the name of the manufacturer of each cigarette.
(4) (a) The reports under Subsections (2) and (3) shall be made no later than quarterly on or before the last day of the month following each calendar quarterly period pursuant to rules established by the commission in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) A person required to file a report under this section is subject to the penalties under Section 59-1-401 for failing to file a report in a timely manner, or for supplying false or fraudulent information.
Section 1073. Section 59-14-409 is amended to read:
59-14-409
. Definitions -- Credit or refund for tax paid on cigarette or tobacco product that is destroyed or returned to the manufacturer -- Interest -- Rulemaking authority.(1) As used in this section, "licensed person" means a person:
(a) licensed by the commission in accordance with Section 59-14-202; and
(b) that is a:
(i) distributor;
(ii) jobber;
(iii) manufacturer;
(iv) retailer;
(v) wholesaler; or
(vi) a person similar to a person described in Subsections (1)(b)(i) through (v) as determined by the commission by rule.
(2) A licensed person may apply to the commission for a credit or refund as provided in Subsection (3) if:
(a) on or after July 1, 2005, the following are removed from retail sale or from storage:
(i) a cigarette; or
(ii) a tobacco product;
(b) before a cigarette or tobacco product is removed from retail sale or from storage in accordance with Subsection (2)(a), the licensed person remits a tax:
(i) to the commission;
(ii) on the:
(A) cigarette; or
(B) tobacco product; and
(iii) in accordance with:
(A) Part 2, Cigarettes; or
(B) Part 3, Tobacco Products; and
(c) the licensed person verifies to the commission that the cigarette or tobacco product described in Subsection (2)(a) has been:
(i) returned to the manufacturer of the cigarette or tobacco product; or
(ii) destroyed.
(3) The amount of the credit or refund described in Subsection (2) is equal to:
(a) for a cigarette removed from retail sale or from storage, the amount of tax the licensed person paid on the cigarette in accordance with Part 2, Cigarettes; or
(b) for a tobacco product removed from retail sale or from storage, the amount of tax the licensed person paid on the tobacco product in accordance with Part 3, Tobacco Products.
(4) (a) The commission shall grant a credit or refund under this section if the commission determines that a licensed person meets the requirements of Subsection (2).
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules establishing procedures and requirements for a licensed person to verify to the commission that a cigarette or tobacco product described in Subsection (2)(a) has been:
(i) returned to the manufacturer of the cigarette or tobacco product; or
(ii) destroyed.
(5) (a) If the commission makes a credit or refund under this section within a 90-day period after the day on which a licensed person submits an application to the commission for the credit or refund, interest may not be added to the amount of credit or refund.
(b) If the commission makes a credit or refund under this section more than 90 days after the day on which a licensed person submits an application to the commission for the credit or refund, interest shall be added to the amount of credit or refund as provided in Section 59-1-402.
(6) (a) The commission may create a form for:
(i) a licensed person to:
(A) submit a claim for a credit or refund; or
(B) verify to the commission that a cigarette or tobacco product has been:
(I) returned to the manufacturer of the cigarette or tobacco product; or
(II) destroyed; or
(ii) processing a claim for a credit or refund for payment.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules defining a person similar to a person described in Subsections (1)(b)(i) through (v).
Section 1074. Section 59-14-603 is amended to read:
59-14-603
. Directory of cigarettes approved for stamping and sale.(1) No later than August 30, 2005, the commission shall develop and publish on its website a directory listing:
(a) all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of Section 59-14-602; and
(b) all brand families that are listed in the certifications required by Section 59-14-602, except the commission shall not include or retain in the directory:
(i) the name or brand families of any nonparticipating manufacturer:
(A) who failed to provide the certification required by Section 59-14-602; or
(B) whose certification is determined by the commission to be out of compliance with Section 59-14-602, unless the commission has determined that the violation has been cured to the satisfaction of the commission; or
(ii) a tobacco product manufacturer or brand family of a nonparticipating manufacturer for which the commission determines:
(A) any escrow payment required by Section 59-22-203 for any period, for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement; or
(B) any outstanding final judgment, including interest thereon, for a violation of the Model Tobacco Settlement Act has not been fully satisfied for the brand family or the tobacco product manufacturer.
(2) The commission shall update the directory required by this section as necessary:
(a) to correct mistakes;
(b) to add or remove a tobacco product manufacturer or brand family; and
(c) to keep the directory in conformity with the requirements of this part.
(3) (a) Every stamping agent shall provide to the commission a current and valid electronic mail address for the purpose of receiving notifications from the commission concerning information required by this section and this part.
(b) The stamping agent shall update the electronic mail address as necessary.
(4) A determination by the commission to not include or to remove a brand family or tobacco product manufacturer from the directory required by this section is subject to review in the manner prescribed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 1075. Section 59-19-105 is amended to read:
59-19-105
. Stamps to be affixed to marihuana and controlled substance -- Anonymity provided when purchasing stamps -- Collection and distribution of tax -- Property in kind.(1) When a dealer purchases, acquires, transports, or imports into this state marihuana or controlled substances, he shall permanently affix the official indicia on the marihuana or controlled substances evidencing the payment of the tax required under this chapter. A stamp or other official indicia may not be used more than once.
(2) Taxes imposed upon marihuana or controlled substances by this chapter are due and payable immediately upon acquisition or possession in this state by a dealer.
(3) Payments required by this chapter shall be made to the commission on forms provided by the commission.
(4) (a) A dealer is not required to give his name, address, Social Security number, or other identifying information on the form.
(b) The commission or its employees may not reveal any facts contained in any report, form, or return required by this chapter or any information obtained from a dealer.
(c) None of the information contained in a report, form, or return or otherwise obtained from a dealer in connection with this section may be used against the dealer in any criminal proceeding unless it is independently obtained, except in connection with a proceeding involving taxes due under this chapter from the dealer making the return. This subsection supersedes any provision to the contrary.
(d) A person who discloses information in violation of this subsection is guilty of a class A misdemeanor.
(5) This section does not prohibit the commission from publishing statistics that do not disclose the identity of a dealer or the actual contents of any reports, forms, or returns.
(6) (a) The commission shall collect all taxes imposed under this chapter. Amounts collected under this chapter, whether characterized as taxes, interest, or penalties, shall be deposited in the Drug Stamp Tax Fund as a dedicated credit and shall be applied and distributed under Section [63-38-9] 63J-1-404 of the Budgetary Procedures Act as follows:
(i) forty percent to the commission for administrative costs of recovery; and
(ii) sixty percent to the law enforcement agency conducting the controlled substance investigation, to be used and applied by the agency in the continued enforcement of controlled substance laws.
(b) If there is more than one participating law enforcement agency, the 60% under Subsection (6)(a)(ii) shall be divided equitably and distributed among the agencies by the administrative law judge conducting the hearing to determine taxpayer liability. The distribution shall be based upon the extent of agency participation as appears from evidence submitted by each agency relative to actual time and expense incurred in the investigation.
(c) If no law enforcement agency is involved in the collection of a specific amount under this chapter, the entire amount collected shall be applied under Subsection (6)(a)(i) to administrative costs of recovery.
(7) (a) If property in kind obtained from the taxpayer is of use or benefit to the commission in the enforcement of this chapter or is of use or benefit to the participating law enforcement agency in the continued enforcement of controlled substance laws, either the commission or the law enforcement agency may apply to the administrative law judge for the award of the property. If the administrative law judge finds the property is of use or benefit either to the commission or the law enforcement agency, the property shall be awarded accordingly.
(b) Before an award under this subsection is ordered, the property shall be appraised by a court-appointed appraiser and the appraised value shall be credited to the taxpayer. If the taxpayer objects to the results of the court-appointed appraisal, he may obtain his own appraisal at his own expense within ten days of the court-appointed appraisal. The decision of the administrative law judge as to value is controlling.
(c) The value of any property in kind awarded to the commission or to the participating law enforcement agency shall be counted as a portion of its percentage share under Subsection (6).
(8) Property of the taxpayer otherwise subject to forfeiture under Section 58-37-13 is not affected by this chapter if there is compliance with Section 58-37-13 regarding the forfeiture and the proceeds and property seized and forfeited are accordingly divided and distributed.
Section 1076. Section 59-21-2 is amended to read:
59-21-2
. Mineral Bonus Account created -- Contents -- Use of Mineral Bonus Account money -- Mineral Lease Account created -- Contents -- Appropriation of monies from Mineral Lease Account.(1) (a) The Mineral Bonus Account is created within the General Fund.
(b) The Mineral Bonus Account consists of federal mineral lease bonus payments deposited pursuant to Subsection 59-21-1(3).
(c) The Legislature shall make appropriations from the Mineral Bonus Account in accordance with Section 35 of the Mineral Lands Leasing Act of 1920, 30 U.S.C. Sec. 191.
(d) The state treasurer shall:
(i) invest the money in the Mineral Bonus Account by following the procedures and requirements of Title 51, Chapter 7, State Money Management Act; and
(ii) deposit all interest or other earnings derived from the account into the Mineral Bonus Account.
(2) (a) The Mineral Lease Account is created within the General Fund.
(b) The Mineral Lease Account consists of federal mineral lease money deposited pursuant to Subsection 59-21-1(1).
(c) The Legislature shall make appropriations from the Mineral Lease Account as provided in Subsection 59-21-1(1) and this Subsection (2).
(d) The Legislature shall annually appropriate 32.5% of all deposits made to the Mineral Lease Account to the Permanent Community Impact Fund established by Section 9-4-303.
(e) The Legislature shall annually appropriate 2.25% of all deposits made to the Mineral Lease Account to the State Board of Education, to be used for education research and experimentation in the use of staff and facilities designed to improve the quality of education in Utah.
(f) The Legislature shall annually appropriate 2.25% of all deposits made to the Mineral Lease Account to the Utah Geological Survey, to be used for activities carried on by the survey having as a purpose the development and exploitation of natural resources in the state.
(g) The Legislature shall annually appropriate 2.25% of all deposits made to the Mineral Lease Account to the Water Research Laboratory at Utah State University, to be used for activities carried on by the laboratory having as a purpose the development and exploitation of water resources in the state.
(h) (i) The Legislature shall annually appropriate to the Department of Transportation 40% of all deposits made to the Mineral Lease Account to be distributed as provided in Subsection (2)(h)(ii) to:
(A) counties;
(B) special service districts established:
(I) by counties;
(II) under Title 17A, Chapter 2, Part 13, Utah Special Service District Act; and
(III) for the purpose of constructing, repairing, or maintaining roads; or
(C) special service districts established:
(I) by counties;
(II) under Title 17A, Chapter 2, Part 13, Utah Special Service District Act; and
(III) for other purposes authorized by statute.
(ii) The Department of Transportation shall allocate the funds specified in Subsection (2)(h)(i):
(A) in amounts proportionate to the amount of mineral lease money generated by each county; and
(B) to a county or special service district established by a county under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, as determined by the county legislative body.
(i) (i) The Legislature shall annually appropriate 5% of all deposits made to the Mineral Lease Account to the Department of Community and Culture to be distributed to:
(A) special service districts established:
(I) by counties;
(II) under Title 17A, Chapter 2, Part 13, Utah Special Service District Act; and
(III) for the purpose of constructing, repairing, or maintaining roads; or
(B) special service districts established:
(I) by counties;
(II) under Title 17A, Chapter 2, Part 13, Utah Special Service District Act; and
(III) for other purposes authorized by statute.
(ii) The Department of Community and Culture may distribute the amounts described in Subsection (2)(i)(i) only to special service districts established under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, by counties:
(A) of the third, fourth, fifth, or sixth class;
(B) in which 4.5% or less of the mineral lease moneys within the state are generated; and
(C) that are significantly socially or economically impacted as provided in Subsection (3)(i)(iii) by the development of minerals under the Mineral Lands Leasing Act, 30 U.S.C. Sec. 181 et seq.
(iii) The significant social or economic impact required under Subsection (2)(i)(ii)(C) shall be as a result of:
(A) the transportation within the county of hydrocarbons, including solid hydrocarbons as defined in Section 59-5-101;
(B) the employment of persons residing within the county in hydrocarbon extraction, including the extraction of solid hydrocarbons as defined in Section 59-5-101; or
(C) a combination of Subsections (2)(i)(iii)(A) and (B).
(iv) For purposes of distributing the appropriations under this Subsection (2)(i) to special service districts established by counties under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, the Department of Community and Culture shall:
(A) (I) allocate 50% of the appropriations equally among the counties meeting the requirements of Subsections (2)(i)(ii) and (iii); and
(II) allocate 50% of the appropriations based on the ratio that the population of each county meeting the requirements of Subsections (2)(i)(ii) and (iii) bears to the total population of all of the counties meeting the requirements of Subsections (2)(i)(ii) and (iii); and
(B) after making the allocations described in Subsection (2)(i)(iv)(A), distribute the allocated revenues to special service districts established by the counties under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, as determined by the executive director of the Department of Community and Culture after consulting with the county legislative bodies of the counties meeting the requirements of Subsections (2)(i)(ii) and (iii).
(v) The executive director of the Department of Community and Culture:
(A) shall determine whether a county meets the requirements of Subsections (2)(i)(ii) and (iii);
(B) shall distribute the appropriations under Subsection (2)(i)(i) to special service districts established by counties under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, that meet the requirements of Subsections (2)(i)(ii) and (iii); and
(C) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, may make rules:
(I) providing a procedure for making the distributions under this Subsection (2)(i) to special service districts; and
(II) defining the term "population" for purposes of Subsection (2)(i)(iv).
(j) (i) The Legislature shall annually make the following appropriations from the Mineral Lease Account:
(A) an amount equal to 52 cents multiplied by the number of acres of school or institutional trust lands, lands owned by the Division of Parks and Recreation, and lands owned by the Division of Wildlife Resources that are not under an in lieu of taxes contract, to each county in which those lands are located;
(B) to each county in which school or institutional trust lands are transferred to the federal government after December 31, 1992, an amount equal to the number of transferred acres in the county multiplied by a payment per acre equal to the difference between 52 cents per acre and the per acre payment made to that county in the most recent payment under the federal payment in lieu of taxes program, 31 U.S.C. Sec. 6901 et seq., unless the federal payment was equal to or exceeded the 52 cents per acre, in which case a payment under this Subsection (2)(j)(i)(B) may not be made for the transferred lands;
(C) to each county in which federal lands, which are entitlement lands under the federal in lieu of taxes program, are transferred to the school or institutional trust, an amount equal to the number of transferred acres in the county multiplied by a payment per acre equal to the difference between the most recent per acre payment made under the federal payment in lieu of taxes program and 52 cents per acre, unless the federal payment was equal to or less than 52 cents per acre, in which case a payment under this Subsection (2)(j)(i)(C) may not be made for the transferred land; and
(D) to a county of the fifth or sixth class, an amount equal to the product of:
(I) $1,000; and
(II) the number of residences described in Subsection (2)(j)(iv) that are located within the county.
(ii) A county receiving money under Subsection (2)(j)(i) may, as determined by the county legislative body, distribute the money or a portion of the money to:
(A) special service districts established by the county under Title 17A, Chapter 2, Part 13, Utah Special Service District Act;
(B) school districts; or
(C) public institutions of higher education.
(iii) (A) Beginning in fiscal year 1994-95 and in each year after fiscal year 1994-95, the Division of Finance shall increase or decrease the amounts per acre provided for in Subsections (2)(j)(i)(A) through (C) by the average annual change in the Consumer Price Index for all urban consumers published by the Department of Labor.
(B) For fiscal years beginning on or after fiscal year 2001-02, the Division of Finance shall increase or decrease the amount described in Subsection (2)(j)(i)(D)(I) by the average annual change in the Consumer Price Index for all urban consumers published by the Department of Labor.
(iv) Residences for purposes of Subsection (2)(j)(i)(D)(II) are residences that are:
(A) owned by:
(I) the Division of Parks and Recreation; or
(II) the Division of Wildlife Resources;
(B) located on lands that are owned by:
(I) the Division of Parks and Recreation; or
(II) the Division of Wildlife Resources; and
(C) are not subject to taxation under:
(I) Chapter 2, Property Tax Act; or
(II) Chapter 4, Privilege Tax.
(k) The Legislature shall annually appropriate to the Permanent Community Impact Fund all deposits remaining in the Mineral Lease Account after making the appropriations provided for in Subsections (2)(d) through (j).
(3) (a) Each agency, board, institution of higher education, and political subdivision receiving money under this chapter shall provide the Legislature, through the Office of the Legislative Fiscal Analyst, with a complete accounting of the use of that money on an annual basis.
(b) The accounting required under Subsection (3)(a) shall:
(i) include actual expenditures for the prior fiscal year, budgeted expenditures for the current fiscal year, and planned expenditures for the following fiscal year; and
(ii) be reviewed by the Economic Development and Human Resources Appropriation Subcommittee as part of its normal budgetary process under [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
Section 1077. Section 59-24-108 is amended to read:
59-24-108
. Rulemaking authority.The commission may make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement and enforce this chapter.
Section 1078. Section 59-25-108 is amended to read:
59-25-108
. Rulemaking authority.The commission may make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement and enforce this chapter.
Section 1079. Section 59-26-106 is amended to read:
59-26-106
. Records.(1) A multi-channel video or audio service provider shall maintain records, statements, books, or accounts necessary to determine the amount of tax that the multi-channel video or audio service provider is required to remit to the commission under this chapter.
(2) The commission may require a multi-channel video or audio service provider to make or keep the records, statements, books, or accounts the commission considers sufficient to show the amount of tax for which the multi-channel video or audio service provider is required to remit to the commission under this chapter:
(a) by notice served upon that multi-channel video or audio service provider; or
(b) by administrative rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) After notice by the commission, a multi-channel video or audio service provider shall open the records, statements, books, or accounts specified in Subsection (2) for examination by the commission or a duly authorized agent of the commission.
Section 1080. Section 59-26-108 is amended to read:
59-26-108
. Rulemaking authority.The commission may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement and enforce this chapter.
Section 1081. Section 59-27-104 is amended to read:
59-27-104
. Payment of tax.(1) Subject to Subsection (2), a sexually explicit business or escort service subject to the tax imposed by this chapter shall file a return with the commission and pay the tax calculated on the return to the commission:
(a) quarterly on or before the last day of the month immediately following the last day of the previous calendar quarter if:
(i) the sexually explicit business or escort service is required to file a quarterly sales and use tax return with the commission under Section 59-12-107; or
(ii) the sexually explicit business or escort service is not required to file a sales and use tax return with the commission under Chapter 12, Sales and Use Tax Act; or
(b) monthly on or before the last day of the month immediately following the last day of the previous calendar month if the sexually explicit business is required to file a monthly sales and use tax return with the commission under Section 59-12-108.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission may make rules to:
(a) establish standards for determining whether an operation is a sexually explicit business or escort service; and
(b) determine, for purposes of Section 59-27-102, amounts that are similar to an amount paid for:
(i) a salary;
(ii) a fee;
(iii) a commission;
(iv) hire; or
(v) profit.
Section 1082. Section 61-1-4 is amended to read:
61-1-4
. Licensing and notice filing procedure.(1) (a) A broker-dealer, agent, investment adviser, or investment adviser representative must obtain an initial or renewal license by filing with the division or its designee an application together with a consent to service of process under Section 61-1-26.
(b) (i) The application shall contain the applicant's Social Security number and whatever information the division by rule requires concerning such matters as:
(A) the applicant's form and place of organization;
(B) the applicant's proposed method of doing business;
(C) the qualifications and business history of the applicant; in the case of a broker-dealer or investment adviser, the qualifications and business history of any partner, officer, or director, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the broker-dealer or investment adviser;
(D) any injunction or administrative order or conviction of a misdemeanor involving a security or any aspect of the securities business and any conviction of a felony; and
(E) the applicant's financial condition and history.
(ii) An applicant's Social Security number is a private record under Subsection [63-2-302] 63G-2-302(1)(h).
(c) The division may, by rule or order, require an applicant for an initial license to publish an announcement of the application in one or more specified newspapers published in this state.
(d) Licenses or notice filings of broker-dealers, agents, investment advisers, and investment adviser representatives shall expire on December 31 of each year.
(e) (i) If no denial order is in effect and no proceeding is pending under Section 61-1-6, a license becomes effective at noon of the 30th day after an application is filed.
(ii) The division may by rule or order specify an earlier effective date and may by order defer the effective date until noon of the 30th day after the filing of any amendment.
(iii) Licensing of a broker-dealer automatically constitutes licensing of only one partner, officer, director, or a person occupying a similar status or performing similar functions as a licensed agent of the broker-dealer.
(iv) Licensing of an investment adviser automatically constitutes licensing of only one partner, officer, director, or a person occupying a similar status or performing similar functions.
(2) Except with respect to federal covered advisers whose only clients are those described in Subsection 61-1-3(3)(b) or (c), a federal covered adviser shall file with the division, prior to acting as a federal covered adviser in this state, a notice filing consisting of such documents as have been filed with the Securities and Exchange Commission as the division by rule or order may require.
(3) (a) Any applicant for an initial or renewal license as a broker-dealer or agent shall pay a reasonable filing fee as determined under Section 61-1-18.4.
(b) Any applicant for an initial or renewal license as an investment adviser or investment adviser representative who is subject to licensing under this chapter shall pay a reasonable filing fee as determined under Section 61-1-18.4.
(c) Any person acting as a federal covered adviser in this state shall pay an initial and renewal notice filing fee as determined under Section 61-1-18.4.
(d) If the license or renewal is not granted or the application is withdrawn, the division shall retain the fee.
(4) A licensed broker-dealer or investment adviser may file an application for licensing of a successor for the unexpired portion of the year. There shall be no filing fee.
(5) The division may by rule or order require a minimum capital for licensed broker-dealers, subject to the limitations of Section 15 of the Securities Exchange Act of 1934, and establish minimum financial requirements for investment advisers, subject to the limitations of Section 222 of the Investment Advisers Act of 1940, which may include different requirements for those investment advisers who maintain custody of or have discretionary authority over client funds or securities and those investment advisers who do not.
(6) (a) The division may by rule or order require licensed broker-dealers and investment advisers who have custody of or discretionary authority over client funds or securities to post bonds in amounts as the division may prescribe, subject to the limitations of Section 15 of the Securities Exchange Act of 1934 for broker-dealers and Section 222 of the Investment Advisers Act of 1940 for investment advisers, and may determine their conditions.
(b) Any appropriate deposit of cash or securities may be accepted in lieu of any required bond.
(c) No bond may be required of any licensee whose net capital, or in the case of an investment adviser whose minimum financial requirements, which may be defined by rule, exceeds the amounts required by the division.
(d) Every bond shall provide for suit on the bond by any person who has a cause of action under Section 61-1-22 and, if the division by rule or order requires, by any person who has a cause of action not arising under this chapter.
(e) Every bond shall provide that no suit may be maintained to enforce any liability on the bond unless brought before the expiration of four years after the act or transaction constituting the violation or the expiration of two years after the discovery by the plaintiff of the facts constituting the violation, whichever expires first.
Section 1083. Section 61-1-6 is amended to read:
61-1-6
. Denial, suspension, revocation, cancellation, or withdrawal of license -- Sanctions.(1) Subject to the requirements of Subsections (2) and (3), the director, by means of adjudicative proceedings conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, may issue an order:
(a) denying, suspending, or revoking any license;
(b) barring or censuring any licensee or any officer, director, partner, or person occupying a similar status or performing similar functions for a licensee from employment with a licensed broker-dealer or investment adviser;
(c) restricting or limiting a licensee as to any function or activity of the business for which a license is required in this state;
(d) imposing a fine; or
(e) any combination of Subsections (1)(a) through (d).
(2) The director may impose the sanctions in Subsection (1) if the director finds that it is in the public interest and finds, with respect to the applicant or licensee or, in the case of a broker-dealer or investment adviser, any partner, officer, or director, or any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the broker-dealer or investment adviser, that the person:
(a) has filed an application for a license that, as of its effective date or as of any date after filing in the case of an order denying effectiveness, was incomplete in any material respect or contained any statement that was, in light of the circumstances under which it was made, false or misleading with respect to any material fact;
(b) has willfully violated or willfully failed to comply with any provision of this chapter or a predecessor act or any rule or order under this chapter or a predecessor act;
(c) was convicted, within the past ten years, of any misdemeanor involving a security or any aspect of the securities business, or any felony;
(d) is permanently or temporarily enjoined by any court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the securities business;
(e) is the subject of an order of the director or any predecessor denying, suspending, or revoking license as a broker-dealer, agent, investment adviser, or investment adviser representative;
(f) is the subject of:
(i) an adjudication or determination, within the past five years by a securities or commodities agency or administrator of another state, Canadian province or territory, or a court of competent jurisdiction that the person has willfully violated the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, the Investment Company Act of 1940, the Commodity Exchange Act, or the securities or commodities law of any other state; or
(ii) an order entered within the past five years by the securities administrator of any state or Canadian province or territory or by the Securities and Exchange Commission denying or revoking license as a broker-dealer, agent, investment adviser, or investment adviser representative or the substantial equivalent of those terms or is the subject of an order of the Securities and Exchange Commission suspending or expelling the person from a national securities exchange or national securities association registered under the Securities Exchange Act of 1934, or is the subject of a United States post office fraud order; except that
(iii) the division may not commence agency action to revoke or suspend any license under Subsection (2)(f) more than one year from the date of the order relied on, and the director may not enter an order under Subsection (2)(f) on the basis of an order under another state's law unless that order was based on facts that would currently constitute a ground for an agency action under this section;
(g) has engaged in dishonest or unethical practices in the securities business;
(h) is insolvent, either in the sense that liabilities exceed assets or in the sense that obligations cannot be met as they mature, except that the director may not enter an order against a broker-dealer or investment adviser under this Subsection (2)(h) without a finding of insolvency as to the broker-dealer or investment adviser;
(i) is not qualified on the basis of the lack of training, experience, and knowledge of the securities business, except as otherwise provided in Subsection (6);
(j) has failed reasonably to supervise his agents or employees if the person is a broker-dealer, or his investment adviser representatives or employees if the person is an investment adviser; or
(k) has failed to pay the proper filing fee within 30 days after being notified by the division of a deficiency.
(3) Before the director may issue an order under Subsection (1) that: revokes any license; bars or censures any licensee or any officer, director, partner, or person occupying a similar status or performing similar functions for a licensee from employment with a licensed broker-dealer or investment adviser; or imposes a fine, the Securities Advisory Board shall:
(a) review the order; and
(b) if a majority of the Securities Advisory Board approves the order, authorize the director to issue it.
(4) The division may enter a denial order under Subsection (2)(j) or (k), but shall vacate the order when the deficiency has been corrected.
(5) The division may not institute a suspension or revocation proceeding on the basis of a fact or transaction known to it when the license became effective unless the proceeding is instituted within the next 120 days.
(6) The following provisions govern the application of Subsection (2)(i):
(a) The director may not enter an order against a broker-dealer on the basis of the lack of qualification of any person other than:
(i) the broker-dealer himself if he is an individual; or
(ii) an agent of the broker-dealer.
(b) The director may not enter an order against an investment adviser on the basis of the lack of qualification of any person other than:
(i) the investment adviser himself if he is an individual; or
(ii) an investment adviser representative.
(c) The director may not enter an order solely on the basis of lack of experience if the applicant or licensee is qualified by training or knowledge.
(d) The director shall consider that an agent who will work under the supervision of a licensed broker-dealer need not have the same qualifications as a broker-dealer and that an investment adviser representative who will work under the supervision of a licensed investment adviser need not have the same qualifications as an investment adviser.
(e) (i) The director shall consider that an investment adviser is not necessarily qualified solely on the basis of experience as a broker-dealer or agent.
(ii) When the director finds that an applicant for a license as a broker-dealer is not qualified as an investment adviser, the director may condition the applicant's license as a broker-dealer upon the applicant's not transacting business in this state as an investment adviser.
(f) (i) The division may by rule provide for examinations, which may be written or oral or both, to be taken by any class of or all applicants.
(ii) The division may by rule or order waive the examination requirement as to a person or class of persons if the division determines that the examination is not necessary for the protection of investors.
(7) If the director finds that any licensee or applicant for a license is no longer in existence, has ceased to do business as a broker-dealer, agent, investment adviser, or investment adviser representative, or is subject to an adjudication of mental incompetence or to the control of a committee, conservator, or guardian, or cannot be located after reasonable search, the division may summarily cancel or deny the license or application according to the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(8) (a) Withdrawal from license as a broker-dealer, agent, investment adviser, or investment adviser representative becomes effective 30 days after receipt of an application to withdraw or within a shorter period of time as determined by the director, unless:
(i) a revocation or suspension proceeding is pending when the application is filed;
(ii) a proceeding to revoke or suspend or to impose conditions upon the withdrawal is instituted within 30 days after the application is filed; or
(iii) additional information is requested by the division regarding the withdrawal application.
(b) (i) If a proceeding described in Subsection (8)(a) is pending or instituted, the director shall designate by order when and under what conditions the withdrawal becomes effective.
(ii) If additional information is requested, withdrawal is effective 30 days after the additional information is filed.
(c) (i) If no proceeding is pending or instituted, and withdrawal automatically becomes effective, the director may initiate a revocation or suspension proceeding under this section within one year after withdrawal became effective.
(ii) The director shall enter any order under Subsection (2)(b) as of the last date on which the license was effective.
Section 1084. Section 61-1-11.1 is amended to read:
61-1-11.1
. Hearings for certain exchanges of securities.(1) An application may be made to the division for approval to issue securities or to deliver other consideration in exchange for:
(a) one or more bona fide outstanding securities, claims, or property interests; or
(b) partly in exchange for one or more bona fide outstanding securities, claims, or property interests, and partly for cash.
(2) The director may:
(a) hold a hearing upon the fairness of the terms and conditions of an exchange described in Subsection (1); and
(b) approve or disapprove the terms and conditions of an exchange described in Subsection (1).
(3) After conducting a hearing under this section, if the director finds that the terms and conditions of an exchange described in Subsection (1) are fair to those to whom the securities will be issued, the director may:
(a) approve the fairness of the terms and conditions of the exchange described in Subsection (1); and
(b) approve the exchange described in Subsection (1).
(4) In a hearing under this section, all persons to whom it is proposed to issue securities or to deliver other consideration in an exchange under Subsection (1) may appear.
(5) An application under Subsection (1) shall contain the information and be accompanied by the documents required by rule or order of the division.
(6) Every person filing an application under Subsection (1) shall pay a filing fee as determined under Section 61-1-18.4.
(7) An applicant under this section shall provide adequate notice of any hearing under this section to all persons that have a right to appear, under Subsection (4), at the hearing.
(8) An application may be made under this section regardless of whether the security or transaction being issued is:
(a) exempt from registration; or
(b) not required to be registered.
(9) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may establish rules to govern the conduct of a hearing permitted by this section.
(10) This section is intended to provide for a fairness hearing that satisfies the requirements of Section 3(a)(10) of the Securities Act of 1933, 15 U.S.C. Section 77c(a)(10), or any comparable section that may subsequently be enacted.
Section 1085. Section 61-1-12 is amended to read:
61-1-12
. Denial, suspension, and revocation of registration.(1) Upon approval by a majority of the Securities Advisory Board, the director, by means of adjudicative proceedings conducted in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, may issue a stop order that denies effectiveness to, or suspends or revokes the effectiveness of, any securities registration statement and may impose a fine if he finds that the order is in the public interest and that:
(a) the registration statement, as of its effective date or as of any earlier date in the case of an order denying effectiveness, or any amendment under Subsection 61-1-11 (10) as of its effective date, or any report under Subsection 61-1-11 (9), is incomplete in any material respect, or contains any statement that was, in the light of the circumstances under which it was made, false or misleading with respect to any material fact;
(b) any provision of this chapter, or any rule, order, or condition lawfully imposed under this chapter, has been willfully violated, in connection with the offering, by:
(i) the person filing the registration statement;
(ii) the issuer, any partner, officer, or director of the issuer, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling or controlled by the issuer, but only if the person filing the registration statement is directly or indirectly controlled by or acting for the issuer; or
(iii) any underwriter;
(c) the security registered or sought to be registered is the subject of an administrative stop order or similar order, or a permanent or temporary injunction of any court of competent jurisdiction entered under any other federal or state act applicable to the offering; except that the division may not commence agency action against an effective registration statement under this subsection more than one year from the date of the order or injunction relied on, and it may not enter an order under this subsection on the basis of an order or injunction entered under the securities act of any other state unless that order or injunction was based on facts that would currently constitute a ground for a stop order under this section;
(d) the issuer's enterprise or method of business includes or would include activities that are illegal where performed;
(e) the offering has worked or tended to work a fraud upon purchasers or would so operate;
(f) the offering has been or would be made with unreasonable amounts of underwriters' and sellers' discounts, commissions, or other compensation, or promoters' profits or participation, or unreasonable amounts or kinds of options;
(g) when a security is sought to be registered by notification, it is not eligible for such registration;
(h) when a security is sought to be registered by coordination, there has been a failure to comply with the undertaking required by Subsection 61-1-9 (2)(d); or
(i) the applicant or registrant has failed to pay the proper filing fee.
(2) The director may enter an order under this section but may vacate the order if he finds that the conditions that prompted its entry have changed or that it is otherwise in the public interest to do so.
(3) The director may not issue a stop order against an effective registration statement on the basis of a fact or transaction known to the division when the registration statement became effective unless the proceeding is instituted within the next 120 days.
(4) No person may be considered to have violated Section 61-1-7 or 61-1-15 by reason of any order or sale effected after the entry of an order under this section if that person proves by a preponderance of the evidence that he did not know, and in the exercise of reasonable care could not have known, of the order.
Section 1086. Section 61-1-13 is amended to read:
61-1-13
. Definitions.(1) As used in this chapter:
(a) "Affiliate" means a person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with a person specified.
(b) (i) "Agent" means any individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities.
(ii) "Agent" does not include an individual who represents:
(A) an issuer, who receives no commission or other remuneration, directly or indirectly, for effecting or attempting to effect purchases or sales of securities in this state, and who effects transactions:
(I) in securities exempted by Subsection 61-1-14(1)(a), (b), (c), (i), or (j);
(II) exempted by Subsection 61-1-14(2);
(III) in a covered security as described in Sections 18(b)(3) and 18(b)(4)(D) of the Securities Act of 1933; or
(IV) with existing employees, partners, officers, or directors of the issuer; or
(B) a broker-dealer in effecting transactions in this state limited to those transactions described in Section 15(h)(2) of the Securities Exchange Act of 1934.
(iii) A partner, officer, or director of a broker-dealer or issuer, or a person occupying a similar status or performing similar functions, is an agent only if the partner, officer, director, or person otherwise comes within the definition of "agent."
(iv) "Agent" does not include a person described in Subsection (3).
(c) (i) "Broker-dealer" means any person engaged in the business of effecting transactions in securities for the account of others or for the person's own account.
(ii) "Broker-dealer" does not include:
(A) an agent;
(B) an issuer;
(C) a bank, savings institution, or trust company;
(D) a person who has no place of business in this state if:
(I) the person effects transactions in this state exclusively with or through:
(Aa) the issuers of the securities involved in the transactions;
(Bb) other broker-dealers; or
(Cc) banks, savings institutions, trust companies, insurance companies, investment companies as defined in the Investment Company Act of 1940, pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees; or
(II) during any period of 12 consecutive months the person does not direct more than 15 offers to sell or buy into this state in any manner to persons other than those specified in Subsection (1)(c)(ii)(D)(I), whether or not the offeror or any of the offerees is then present in this state;
(E) a general partner who organizes and effects transactions in securities of three or fewer limited partnerships, of which the person is the general partner, in any period of 12 consecutive months;
(F) a person whose participation in transactions in securities is confined to those transactions made by or through a broker-dealer licensed in this state;
(G) a person who is a real estate broker licensed in this state and who effects transactions in a bond or other evidence of indebtedness secured by a real or chattel mortgage or deed of trust, or by an agreement for the sale of real estate or chattels, if the entire mortgage, deed or trust, or agreement, together with all the bonds or other evidences of indebtedness secured thereby, is offered and sold as a unit;
(H) a person effecting transactions in commodity contracts or commodity options;
(I) a person described in Subsection (3); or
(J) other persons as the division, by rule or order, may designate, consistent with the public interest and protection of investors, as not within the intent of this Subsection (1)(c).
(d) "Buy" or "purchase" means every contract for purchase of, contract to buy, or acquisition of a security or interest in a security for value.
(e) "Commodity" means, except as otherwise specified by the division by rule:
(i) any agricultural, grain, or livestock product or byproduct, except real property or any timber, agricultural, or livestock product grown or raised on real property and offered or sold by the owner or lessee of the real property;
(ii) any metal or mineral, including a precious metal, except a numismatic coin whose fair market value is at least 15% greater than the value of the metal it contains;
(iii) any gem or gemstone, whether characterized as precious, semi-precious, or otherwise;
(iv) any fuel, whether liquid, gaseous, or otherwise;
(v) any foreign currency; and
(vi) all other goods, articles, products, or items of any kind, except any work of art offered or sold by art dealers, at public auction or offered or sold through a private sale by the owner of the work.
(f) (i) "Commodity contract" means any account, agreement, or contract for the purchase or sale, primarily for speculation or investment purposes and not for use or consumption by the offeree or purchaser, of one or more commodities, whether for immediate or subsequent delivery or whether delivery is intended by the parties, and whether characterized as a cash contract, deferred shipment or deferred delivery contract, forward contract, futures contract, installment or margin contract, leverage contract, or otherwise.
(ii) Any commodity contract offered or sold shall, in the absence of evidence to the contrary, be presumed to be offered or sold for speculation or investment purposes.
(iii) (A) A commodity contract shall not include any contract or agreement which requires, and under which the purchaser receives, within 28 calendar days from the payment in good funds any portion of the purchase price, physical delivery of the total amount of each commodity to be purchased under the contract or agreement.
(B) The purchaser is not considered to have received physical delivery of the total amount of each commodity to be purchased under the contract or agreement when the commodity or commodities are held as collateral for a loan or are subject to a lien of any person when the loan or lien arises in connection with the purchase of each commodity or commodities.
(g) (i) "Commodity option" means any account, agreement, or contract giving a party to the option the right but not the obligation to purchase or sell one or more commodities or one or more commodity contracts, or both whether characterized as an option, privilege, indemnity, bid, offer, put, call, advance guaranty, decline guaranty, or otherwise.
(ii) "Commodity option" does not include an option traded on a national securities exchange registered:
(A) with the United States Securities and Exchange Commission; or
(B) on a board of trade designated as a contract market by the Commodity Futures Trading Commission.
(h) "Director" means the director of the Division of Securities charged with the administration and enforcement of this chapter.
(i) "Division" means the Division of Securities established by Section 61-1-18.
(j) "Executive director" means the executive director of the Department of Commerce.
(k) "Federal covered adviser" means a person who:
(i) is registered under Section 203 of the Investment Advisers Act of 1940; or
(ii) is excluded from the definition of "investment adviser" under Section 202(a)(11) of the Investment Advisers Act of 1940.
(l) "Federal covered security" means any security that is a covered security under Section 18(b) of the Securities Act of 1933 or rules or regulations promulgated under Section 18(b) of the Securities Act of 1933.
(m) "Fraud," "deceit," and "defraud" are not limited to their common-law meanings.
(n) "Guaranteed" means guaranteed as to payment of principal or interest as to debt securities, or dividends as to equity securities.
(o) (i) "Investment adviser" means any person who:
(A) for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities; or
(B) for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities.
(ii) "Investment adviser" includes financial planners and other persons who:
(A) as an integral component of other financially related services, provide the investment advisory services described in Subsection (1)(o)(i) to others for compensation and as part of a business; or
(B) hold themselves out as providing the investment advisory services described in Subsection (1)(o)(i) to others for compensation.
(iii) "Investment adviser" does not include:
(A) an investment adviser representative;
(B) a bank, savings institution, or trust company;
(C) a lawyer, accountant, engineer, or teacher whose performance of these services is solely incidental to the practice of his profession;
(D) a broker-dealer or its agent whose performance of these services is solely incidental to the conduct of its business as a broker-dealer and who receives no special compensation for the services;
(E) a publisher of any bona fide newspaper, news column, news letter, news magazine, or business or financial publication or service, of general, regular, and paid circulation, whether communicated in hard copy form, or by electronic means, or otherwise, that does not consist of the rendering of advice on the basis of the specific investment situation of each client;
(F) any person who is a federal covered adviser;
(G) a person described in Subsection (3); or
(H) such other persons not within the intent of this Subsection (1)(o) as the division may by rule or order designate.
(p) (i) "Investment adviser representative" means any partner, officer, director of, or a person occupying a similar status or performing similar functions, or other individual, except clerical or ministerial personnel, who:
(A) (I) is employed by or associated with an investment adviser who is licensed or required to be licensed under this chapter; or
(II) has a place of business located in this state and is employed by or associated with a federal covered adviser; and
(B) does any of the following:
(I) makes any recommendations or otherwise renders advice regarding securities;
(II) manages accounts or portfolios of clients;
(III) determines which recommendation or advice regarding securities should be given;
(IV) solicits, offers, or negotiates for the sale of or sells investment advisory services; or
(V) supervises employees who perform any of the acts described in this Subsection (1)(p)(i)(B).
(ii) "Investment advisor representative" does not include a person described in Subsection (3).
(q) (i) "Issuer" means any person who issues or proposes to issue any security or has outstanding a security that it has issued.
(ii) With respect to a preorganization certificate or subscription, "issuer" means the promoter or the promoters of the person to be organized.
(iii) "Issuer" means the person or persons performing the acts and assuming duties of a depositor or manager under the provisions of the trust or other agreement or instrument under which the security is issued with respect to:
(A) interests in trusts, including collateral trust certificates, voting trust certificates, and certificates of deposit for securities; or
(B) shares in an investment company without a board of directors.
(iv) With respect to an equipment trust certificate, a conditional sales contract, or similar securities serving the same purpose, "issuer" means the person by whom the equipment or property is to be used.
(v) With respect to interests in partnerships, general or limited, "issuer" means the partnership itself and not the general partner or partners.
(vi) With respect to certificates of interest or participation in oil, gas, or mining titles or leases or in payment out of production under the titles or leases, "issuer" means the owner of the title or lease or right of production, whether whole or fractional, who creates fractional interests therein for the purpose of sale.
(r) "Nonissuer" means not directly or indirectly for the benefit of the issuer.
(s) "Person" means:
(i) an individual;
(ii) a corporation;
(iii) a partnership;
(iv) a limited liability company;
(v) an association;
(vi) a joint-stock company;
(vii) a joint venture;
(viii) a trust where the interests of the beneficiaries are evidenced by a security;
(ix) an unincorporated organization;
(x) a government; or
(xi) a political subdivision of a government.
(t) "Precious metal" means the following, whether in coin, bullion, or other form:
(i) silver;
(ii) gold;
(iii) platinum;
(iv) palladium;
(v) copper; and
(vi) such other substances as the division may specify by rule.
(u) "Promoter" means any person who, acting alone or in concert with one or more persons, takes initiative in founding or organizing the business or enterprise of a person.
(v) (i) "Sale" or "sell" includes every contract for sale of, contract to sell, or disposition of, a security or interest in a security for value.
(ii) "Offer" or "offer to sell" includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value.
(iii) The following are examples of the definitions in Subsection (1)(v)(i) or (ii):
(A) any security given or delivered with or as a bonus on account of any purchase of a security or any other thing, is part of the subject of the purchase, and has been offered and sold for value;
(B) a purported gift of assessable stock is an offer or sale as is each assessment levied on the stock;
(C) an offer or sale of a security that is convertible into, or entitles its holder to acquire or subscribe to another security of the same or another issuer is an offer or sale of that security, and also an offer of the other security, whether the right to convert or acquire is exercisable immediately or in the future;
(D) any conversion or exchange of one security for another shall constitute an offer or sale of the security received in a conversion or exchange, and the offer to buy or the purchase of the security converted or exchanged;
(E) securities distributed as a dividend wherein the person receiving the dividend surrenders the right, or the alternative right, to receive a cash or property dividend is an offer or sale;
(F) a dividend of a security of another issuer is an offer or sale; or
(G) the issuance of a security under a merger, consolidation, reorganization, recapitalization, reclassification, or acquisition of assets shall constitute the offer or sale of the security issued as well as the offer to buy or the purchase of any security surrendered in connection therewith, unless the sole purpose of the transaction is to change the issuer's domicile.
(iv) The terms defined in Subsections (1)(v)(i) and (ii) do not include:
(A) a good faith gift;
(B) a transfer by death;
(C) a transfer by termination of a trust or of a beneficial interest in a trust;
(D) a security dividend not within Subsection (1)(v)(iii)(E) or (F);
(E) a securities split or reverse split; or
(F) any act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims, or property interests, or partly in such exchange and partly for cash.
(w) "Securities Act of 1933," "Securities Exchange Act of 1934," "Public Utility Holding Company Act of 1935," and "Investment Company Act of 1940" mean the federal statutes of those names as amended before or after the effective date of this chapter.
(x) (i) "Security" means any:
(A) note;
(B) stock;
(C) treasury stock;
(D) bond;
(E) debenture;
(F) evidence of indebtedness;
(G) certificate of interest or participation in any profit-sharing agreement;
(H) collateral-trust certificate;
(I) preorganization certificate or subscription;
(J) transferable share;
(K) investment contract;
(L) burial certificate or burial contract;
(M) voting-trust certificate;
(N) certificate of deposit for a security;
(O) certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease;
(P) commodity contract or commodity option;
(Q) interest in a limited liability company;
(R) viatical settlement interest; or
(S) in general, any interest or instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing.
(ii) "Security" does not include any:
(A) insurance or endowment policy or annuity contract under which an insurance company promises to pay money in a lump sum or periodically for life or some other specified period;
(B) interest in a limited liability company in which the limited liability company is formed as part of an estate plan where all of the members are related by blood or marriage, there are five or fewer members, or the person claiming this exception can prove that all of the members are actively engaged in the management of the limited liability company; or
(C) (I) a whole long-term estate in real property;
(II) an undivided fractionalized long-term estate in real property that consists of ten or fewer owners; or
(III) an undivided fractionalized long-term estate in real property that consists of more than ten owners if, when the real property estate is subject to a management agreement:
(Aa) the management agreement permits a simple majority of owners of the real property estate to not renew or to terminate the management agreement at the earlier of the end of the management agreement's current term, or 180 days after the day on which the owners give notice of termination to the manager;
(Bb) the management agreement prohibits, directly or indirectly, the lending of the proceeds earned from the real property estate or the use or pledge of its assets to any person or entity affiliated with or under common control of the manager; and
(Cc) the management agreement complies with any other requirement imposed by rule by the Real Estate Commission under Section 61-2-26.
(iii) For purposes of Subsection (1)(x)(ii)(B), evidence that members vote or have the right to vote, or the right to information concerning the business and affairs of the limited liability company, or the right to participate in management, shall not establish, without more, that all members are actively engaged in the management of the limited liability company.
(y) "State" means any state, territory, or possession of the United States, the District of Columbia, and Puerto Rico.
(z) (i) "Undivided fractionalized long-term estate" means an ownership interest in real property by two or more persons that is a:
(A) tenancy in common; or
(B) any other legal form of undivided estate in real property including:
(I) a fee estate;
(II) a life estate; or
(III) other long-term estate.
(ii) "Undivided fractionalized long-term estate" does not include a joint tenancy.
(aa) (i) "Viatical settlement interest" means the entire interest or any fractional interest in any of the following that is the subject of a viatical settlement:
(A) a life insurance policy; or
(B) the death benefit under a life insurance policy.
(ii) "Viatical settlement interest" does not include the initial purchase from the viator by a viatical settlement provider.
(bb) "Whole long-term estate" means a person or persons through joint tenancy owns real property through:
(i) a fee estate;
(ii) a life estate; or
(iii) other long-term estate.
(cc) "Working days" means 8 a.m. to 5 p.m., Monday through Friday, exclusive of legal holidays listed in Section [63-13-2] 63G-1-301.
(2) A term not defined in this section shall have the meaning as established by division rule. The meaning of a term neither defined in this section nor by rule of the division shall be the meaning commonly accepted in the business community.
(3) (a) This Subsection (3) applies to:
(i) the offer or sale of a real property estate exempted from the definition of security under Subsection (1)(x)(ii)(C); or
(ii) the offer or sale of an undivided fractionalized long-term estate that is the offer of a security.
(b) A person who, directly or indirectly receives compensation in connection with the offer or sale as provided in this Subsection (3) of a real property estate is not an agent, broker-dealer, investment adviser, or investor adviser representative under this chapter if that person is licensed under Chapter 2, Division of Real Estate, as:
(i) a principal real estate broker;
(ii) an associate real estate broker; or
(iii) a real estate sales agent.
(4) The list of real property estates excluded from the definition of securities under Subsection (1)(x)(ii)(C) is not an exclusive list of real property estates or interests that are not a security.
Section 1087. Section 61-1-14 is amended to read:
61-1-14
. Exemptions.(1) The following securities are exempted from Sections 61-1-7 and 61-1-15:
(a) any security, including a revenue obligation, issued or guaranteed by the United States, any state, any political subdivision of a state, or any agency or corporate or other instrumentality of one or more of the foregoing, or any certificate of deposit for any of the foregoing;
(b) any security issued or guaranteed by Canada, any Canadian province, any political subdivision of any Canadian province, any agency or corporate or other instrumentality of one or more of the foregoing, or any other foreign government with which the United States currently maintains diplomatic relations, if the security is recognized as a valid obligation by the issuer or guarantor;
(c) any security issued by and representing an interest in or a debt of, or guaranteed by, any bank organized under the laws of the United States, or any bank, savings institution, or trust company supervised under the laws of any state;
(d) any security issued by and representing an interest in or a debt of, or guaranteed by, any federal savings and loan association, or any building and loan or similar association organized under the laws of any state and authorized to do business in this state;
(e) any security issued or guaranteed by any federal credit union or any credit union, industrial loan association, or similar association organized and supervised under the laws of this state;
(f) any security issued or guaranteed by any public utility or holding company which is a registered holding company under the Public Utility Holding Company Act of 1935 or a subsidiary of such a company within the meaning of that act, or any security regulated in respect of its rates or in its issuance by a governmental authority of the United States, any state, Canada, or any Canadian province;
(g) any security listed on the National Association of Securities Dealers Automated Quotation National Market System, the New York Stock Exchange, the American Stock Exchange, or on any other stock exchange or medium approved by the division, except that the director may at any time suspend or revoke this exemption for any particular stock exchange, medium, security, or securities under Subsection (4); any other security of the same issuer which is of senior or substantially equal rank to any security so listed and approved by the director, any security called for by subscription rights or warrants so listed or approved, or any warrant or right to purchase or subscribe to any of the foregoing;
(h) (i) any security issued by any person organized and operated not for private profit but exclusively for religious, educational, benevolent, charitable, fraternal, social, athletic, or reformatory purposes, or as a chamber of commerce or trade or professional association; and
(ii) any security issued by a corporation organized under Title 3, Chapter 1, and any security issued by a corporation to which the provisions of that chapter are made applicable by compliance with the requirements of Section 3-1-21;
(i) a promissory note, draft, bill of exchange, or banker's acceptance that evidences an obligation to pay cash within nine months after the date of issuance, exclusive of days of grace, or a renewal of such an obligation that is likewise limited, or a guarantee of such an obligation or of a renewal:
(i) issued in denominations of at least $50,000; and
(ii) either:
(A) receives a rating in one of the three highest rating categories from a nationally recognized statistical rating organization; or
(B) the issuer satisfies requirements established by rule or order of the division;
(j) any investment contract issued in connection with an employees' stock purchase, option, savings, pension, profit-sharing, or similar benefit plan;
(k) a security issued by an issuer registered as an open-end management investment company or unit investment trust under Section 8 of the Investment Company Act of 1940, if:
(i) (A) the issuer is advised by an investment adviser that is a depository institution exempt from registration under the Investment Advisers Act of 1940 or that is currently registered as an investment adviser, and has been registered, or is affiliated with an adviser that has been registered, as an investment adviser under the Investment Advisers Act of 1940 for at least three years next preceding an offer or sale of a security claimed to be exempt under this subsection; and
(B) the adviser has acted, or is affiliated with an investment adviser that has acted as investment adviser to one or more registered investment companies or unit investment trusts for at least three years next preceding an offer or sale of a security claimed to be exempt under this subsection; or
(ii) the issuer has a sponsor that has at all times throughout the three years before an offer or sale of a security claimed to be exempt under this subsection sponsored one or more registered investment companies or unit investment trusts the aggregate total assets of which have exceeded $100,000,000;
(iii) in addition to Subsection (i) or (ii), the division has received prior to any sale exempted herein:
(A) a notice of intention to sell which has been executed by the issuer which sets forth the name and address of the issuer and the title of the securities to be offered in this state; and
(B) a filing fee as determined under Section 61-1-18.4;
(iv) in the event any offer or sale of a security of an open-end management investment company is to be made more than 12 months after the date on which the notice and fee under Subsection (iii) is received by the director, another notice and payment of the applicable fee shall be required;
(v) for the purpose of this subsection, an investment adviser is affiliated with another investment adviser if it controls, is controlled by, or is under common control with the other investment adviser; and
(l) any security as to which the director, by rule or order, finds that registration is not necessary or appropriate for the protection of investors.
(2) The following transactions are exempted from Sections 61-1-7 and 61-1-15:
(a) any isolated transaction, whether effected through a broker-dealer or not;
(b) any nonissuer transaction in an outstanding security, if as provided by rule of the division:
(i) information about the issuer of the security as required by the division is currently listed in a securities manual recognized by the division, and the listing is based upon such information as required by rule of the division; or
(ii) the security has a fixed maturity or a fixed interest or dividend provision and there has been no default during the current fiscal year or within the three preceding fiscal years, or during the existence of the issuer and any predecessors if less than three years, in the payment of principal, interest, or dividends on the security;
(c) any nonissuer transaction effected by or through a registered broker-dealer pursuant to an unsolicited order or offer to buy;
(d) any transaction between the issuer or other person on whose behalf the offering is made and an underwriter, or among underwriters;
(e) any transaction in a bond or other evidence of indebtedness secured by a real or chattel mortgage or deed of trust, or by an agreement for the sale of real estate or chattels, if the entire mortgage, deed of trust, or agreement, together with all the bonds or other evidences of indebtedness secured thereby, is offered and sold as a unit;
(f) any transaction by an executor, administrator, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator;
(g) any transaction executed by a bona fide pledgee without any purpose of evading this chapter;
(h) any offer or sale to a bank, savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit-sharing trust, or other financial institution or institutional investor, or to a broker-dealer, whether the purchaser is acting for itself or in some fiduciary capacity;
(i) any offer or sale of a preorganization certificate or subscription if:
(i) no commission or other remuneration is paid or given directly or indirectly for soliciting any prospective subscriber;
(ii) the number of subscribers acquiring any legal or beneficial interest therein does not exceed ten; and
(iii) there is no general advertising or solicitation in connection with the offer or sale;
(j) any transaction pursuant to an offer by an issuer of its securities to its existing securities holders, if:
(i) no commission or other remuneration, other than a standby commission is paid or given directly or indirectly for soliciting any security holders in this state and the transaction constitutes either:
(A) the conversion of convertible securities;
(B) the exercise of nontransferable rights or warrants;
(C) the exercise of transferable rights or warrants if the rights or warrants are exercisable not more than 90 days after their issuance; or
(D) the purchase of securities under a preemptive right; and
(ii) the exemption created by Subsection (2)(j) is not available for an offer or sale of securities to existing securities holders who have acquired their securities from the issuer in a transaction in violation of Section 61-1-7;
(k) any offer, but not a sale, of a security for which registration statements have been filed under both this chapter and the Securities Act of 1933 if no stop order or refusal order is in effect and no public proceeding or examination looking toward such an order is pending;
(l) a distribution of securities as a dividend if the person distributing the dividend is the issuer of the securities distributed;
(m) any nonissuer transaction effected by or through a registered broker-dealer where the broker-dealer or issuer files with the division, and the broker-dealer maintains in his records, and makes reasonably available upon request to any person expressing an interest in a proposed transaction in the security with the broker-dealer information prescribed by the division under its rules;
(n) any transactions not involving a public offering;
(o) any offer or sale of "condominium units" or "time period units" as those terms are defined in the Condominium Ownership Act, whether or not to be sold by installment contract, if the provisions of the Condominium Ownership Act, or if the units are located in another state, the condominium act of that state, the Utah Uniform Land Sales Practices Act, the Utah Timeshare and Camp Resort Act, and the Utah Uniform Consumer Credit Code are complied with;
(p) any transaction or series of transactions involving a merger, consolidation, reorganization, recapitalization, reclassification, or sale of assets, if the consideration for which, in whole or in part, is the issuance of securities of a person or persons, and if:
(i) the transaction or series of transactions is incident to a vote of the securities holders of each person involved or by written consent or resolution of some or all of the securities holders of each person involved;
(ii) the vote, consent, or resolution is given under a provision in:
(A) the applicable corporate statute or other controlling statute;
(B) the controlling articles of incorporation, trust indenture, deed of trust, or partnership agreement; or
(C) the controlling agreement among securities holders;
(iii) (A) one person involved in the transaction is required to file proxy or informational materials under Section 14 (a) or (c) of the Securities Exchange Act of 1934 or Section 20 of the Investment Company Act of 1940 and has so filed;
(B) one person involved in the transaction is an insurance company which is exempt from filing under Section 12(g)(2)(G) of the Securities Exchange Act of 1934, and has filed proxy or informational materials with the appropriate regulatory agency or official of its domiciliary state; or
(C) all persons involved in the transaction are exempt from filing under Section 12(g)(1) of the Securities Exchange Act of 1934, and file with the division such proxy or informational material as the division requires by rule;
(iv) the proxy or informational material is filed with the division and distributed to all securities holders entitled to vote in the transaction or series of transactions at least ten working days prior to any necessary vote by the securities holders or action on any necessary consent or resolution; and
(v) the division does not, by order, deny or revoke the exemption within ten working days after filing of the proxy or informational materials;
(q) any transaction pursuant to an offer to sell securities of an issuer if:
(i) the transaction is part of an issue in which there are not more than 15 purchasers in this state, other than those designated in Subsection (2)(h), during any 12 consecutive months;
(ii) no general solicitation or general advertising is used in connection with the offer to sell or sale of the securities;
(iii) no commission or other similar compensation is given, directly or indirectly, to a person other than a broker-dealer or agent licensed under this chapter, for soliciting a prospective purchaser in this state;
(iv) the seller reasonably believes that all the purchasers in this state are purchasing for investment;
(v) the transaction is part of an aggregate offering that does not exceed $500,000, or a greater amount as prescribed by a division rule, during any 12 consecutive months; and
(vi) the director, as to a security or transaction, or a type of security or transaction, may withdraw or further condition this exemption or waive one or more of the conditions in Subsection (q);
(r) any transaction involving a commodity contract or commodity option; and
(s) any transaction as to which the division finds that registration is not necessary or appropriate for the protection of investors.
(3) Every person filing an exemption notice or application shall pay a filing fee as determined under Section 61-1-18.4.
(4) Upon approval by a majority of the Securities Advisory Board, the director, by means of an adjudicative proceeding conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, may deny or revoke any exemption specified in Subsection (1)(g), (h), or (j) or in Subsection (2) with respect to:
(a) a specific security, transaction, or series of transactions; or
(b) any person or issuer, any affiliate or successor to a person or issuer, or any entity subsequently organized by or on behalf of a person or issuer generally and may impose a fine if he finds that the order is in the public interest and that:
(i) the application for or notice of exemption filed with the division is incomplete in any material respect or contains any statement which was, in the light of the circumstances under which it was made, false or misleading with respect to any material fact;
(ii) any provision of this chapter, or any rule, order, or condition lawfully imposed under this chapter has been willfully violated in connection with the offering or exemption by:
(A) the person filing any application for or notice of exemption;
(B) the issuer, any partner, officer, or director of the issuer, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling or controlled by the issuer, but only if the person filing the application for or notice of exemption is directly or indirectly controlled by or acting for the issuer; or
(C) any underwriter;
(iii) the security for which the exemption is sought is the subject of an administrative stop order or similar order, or a permanent or temporary injunction or any court of competent jurisdiction entered under any other federal or state act applicable to the offering or exemption; the division may not institute a proceeding against an effective exemption under this subsection more than one year from the date of the order or injunction relied on, and it may not enter an order under this subsection on the basis of an order or injunction entered under any other state act unless that order or injunction was based on facts that would currently constitute a ground for a stop order under this section;
(iv) the issuer's enterprise or method of business includes or would include activities that are illegal where performed;
(v) the offering has worked, has tended to work, or would operate to work a fraud upon purchasers;
(vi) the offering has been or was made with unreasonable amounts of underwriters' and sellers' discounts, commissions, or other compensation, or promoters' profits or participation, or unreasonable amounts or kinds of options;
(vii) an exemption is sought for a security or transaction which is not eligible for the exemption; or
(viii) the proper filing fee, if required, has not been paid.
(5) (a) No order under Subsection (4) may operate retroactively.
(b) No person may be considered to have violated Section 61-1-7 or 61-1-15 by reason of any offer or sale effected after the entry of an order under this subsection if he sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the order.
Section 1088. Section 61-1-15.5 is amended to read:
61-1-15.5
. Federal covered securities.(1) The division by rule or order may require the filing of any of the following documents with respect to a covered security under Section 18(b)(2) of the Securities Act of 1933:
(a) prior to the initial offer of federal covered security in this state, a notice form as prescribed by the division or all documents that are part of a federal registration statement filed with the U.S. Securities and Exchange Commission under the Securities Act of 1933, together with a consent to service of process signed by the issuer and a filing fee as determined under Section 61-1-18.4;
(b) after the initial offer of such federal covered security in this state, all documents that are part of an amendment to a federal registration statement filed with the U.S. Securities and Exchange Commission under the Securities Act of 1933, which shall be filed concurrently with the division;
(c) a report of the value of federal covered securities offered or sold in this state, together with a filing fee as determined under Section 61-1-18.4; and
(d) a notice filing under this section shall be effective for one year and shall be renewed annually in order to continue to offer or sell the federal covered securities for which the notice was filed.
(2) With respect to any security that is a covered security under Section 18(b)(4)(D) of the Securities Act of 1933, the division by rule or order may require the issuer to file a notice on SEC Form D and a consent to service of process signed by the issuer no later than 15 days after the first sale of such covered security in this state, together with a filing fee as determined under Section 61-1-18.4.
(3) The division by rule or order may require the filing of any document filed with the U.S. Securities and Exchange Commission under the Securities Act of 1933, with respect to a covered security under Section 18(b)(3) or (4) of the Securities Act of 1933, together with a filing fee as determined under Section 61-1-18.4.
(4) Upon approval by a majority of the Securities Advisory Board, the director, by means of adjudicative proceedings conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, may issue a stop order suspending the offer and sale of any federal covered security, except a covered security under Section 18(b)(1) of the Securities Act of 1933, if the director finds that the order is in the public interest and there is a failure to comply with any condition established under this section.
(5) The division by rule or order may waive any or all of the provisions of this section.
Section 1089. Section 61-1-18.4 is amended to read:
61-1-18.4
. Fees collected by division.The Division of Securities shall establish, charge, and collect fees pursuant to Section [63-38-3.2] 63J-1-303, except when it can be demonstrated that the fee amount should be based on factors other than cost, for the following:
(1) the fair and reasonable cost of any examination, audit, or investigation authorized or required by this chapter or other state law;
(2) certificate of serving and mailing process served upon the division in any action or proceeding commenced or prosecuted in this state against any person who has appointed the division its agent as provided in Subsection 61-1-26 (7); and
(3) copies and authentication of all papers, publications, data, and other records available to the public or issued under the division's authority.
Section 1090. Section 61-1-18.6 is amended to read:
61-1-18.6
. Procedures -- Adjudicative proceedings.The Division of Securities shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1091. Section 61-1-18.7 is amended to read:
61-1-18.7
. Funding of securities investor education and training.(1) There is created a restricted special revenue fund known as the "Securities Investor Education and Training Fund" to provide revenue for educating the public and the securities industry as provided in this section.
(2) All money received by the state by reason of civil penalties ordered and administrative fines collected pursuant to this chapter shall be deposited in the Securities Investor Education and Training Fund, and subject to the requirements of Title 51, Chapter 5, Funds Consolidation Act.
(3) The special revenue fund may include any fines collected by the division after July 1, 1989, pursuant to voluntary settlements or administrative orders.
(4) (a) The fund shall earn interest.
(b) All interest earned on fund monies shall be deposited into the fund.
(5) Notwithstanding [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, the director may use special revenue fund monies, upon concurrence of the Securities Advisory Board and the executive director of the Department of Commerce, in a manner consistent with the duties of the division under this chapter and only for any or all of the following and the expense of providing them:
(a) education and training of Utah residents in matters concerning securities laws and investment decisions, by publications or presentations;
(b) education of registrants and licensees under this chapter, by:
(i) publication of this chapter and rules and policy statements and opinion letters of the division; and
(ii) sponsorship of seminars or meetings to educate registrants and licensees as to the requirements of this chapter; and
(c) investigation and litigation.
(6) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess shall be transferred to the General Fund.
Section 1092. Section 61-1-23 is amended to read:
61-1-23
. Review of orders.Any person aggrieved by a final order of the director determining all of the issues of an adjudicative proceeding may obtain review of the order by the executive director in accordance with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act.
Section 1093. Section 61-2-5.1 is amended to read:
61-2-5.1
. Procedures -- Adjudicative proceedings.The Division of Real Estate shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1094. Section 61-2-6 is amended to read:
61-2-6
. Licensing procedures and requirements.(1) (a) Except as provided in Subsection (5), the commission shall determine the qualifications and requirements of applicants for:
(i) a principal broker license;
(ii) an associate broker license; or
(iii) a sales agent license.
(b) The division, with the concurrence of the commission, shall require and pass upon proof necessary to determine the honesty, integrity, truthfulness, reputation, and competency of each applicant for an initial license or for renewal of an existing license.
(c) (i) The division, with the concurrence of the commission, shall require an applicant for:
(A) a sales agent license to complete an approved educational program not to exceed 90 hours; and
(B) an associate broker or principal broker license to complete an approved educational program not to exceed 120 hours.
(ii) The hours required by this section mean 50 minutes of instruction in each 60 minutes.
(iii) The maximum number of program hours available to an individual is ten hours per day.
(d) The division, with the concurrence of the commission, shall require the applicant to pass an examination approved by the commission covering:
(i) the fundamentals of:
(A) the English language;
(B) arithmetic;
(C) bookkeeping; and
(D) real estate principles and practices;
(ii) the provisions of this chapter;
(iii) the rules established by the commission; and
(iv) any other aspect of Utah real estate license law considered appropriate.
(e) (i) Three years' full-time experience as a real estate sales agent or its equivalent is required before any applicant may apply for, and secure a principal broker or associate broker license in this state.
(ii) The commission shall establish by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the criteria by which the commission will accept experience or special education in similar fields of business in lieu of the three years' experience.
(2) (a) The division, with the concurrence of the commission, may require an applicant to furnish a sworn statement setting forth evidence satisfactory to the division of the applicant's reputation and competency as set forth by rule.
(b) The division shall require an applicant to provide the applicant's Social Security number, which is a private record under Subsection [63-2-302] 63G-2-302(1)(h).
(3) (a) A nonresident principal broker may be licensed in this state by conforming to all the provisions of this chapter except that of residency.
(b) A nonresident associate broker or sales agent may become licensed in this state by:
(i) conforming to all the provisions of this chapter except that of residency; and
(ii) being employed or engaged as an independent contractor by or on behalf of a nonresident or resident principal broker who is licensed in this state.
(4) (a) Except as provided in Subsection 61-2-9(1)(e)(iv), the application to be relicensed of an applicant who has had a real estate license revoked shall be treated as an original application.
(b) In the case of an applicant for a new license as a principal broker or associate broker, the applicant is not entitled to credit for experience gained prior to the revocation of a real estate license.
(5) (a) Notwithstanding Subsection (1), the commission may delegate to the division the authority to:
(i) review a class or category of applications for initial or renewed licenses;
(ii) determine whether an applicant meets the licensing criteria in Subsection (1); and
(iii) approve or deny a license application without concurrence by the commission.
(b) (i) If the commission delegates to the division the authority to approve or deny an application without concurrence by the commission and the division denies an application for licensure, the applicant who is denied licensure may petition the commission for review of the denial of licensure.
(ii) An applicant who is denied licensure pursuant to this Subsection (5) may seek agency review by the executive director only after the commission has reviewed the division's denial of the applicant's application.
Section 1095. Section 61-2-7.1 is amended to read:
61-2-7.1
. Change of information -- Failure to notify -- Notification to an applicant, licensee, or certificate holder.(1) An applicant, licensee, or certificate holder shall send the division a signed statement in the form required by the division notifying the division within ten business days of any change of:
(a) principal broker;
(b) principal business location;
(c) mailing address;
(d) home street address;
(e) an individual's name; or
(f) business name.
(2) The division may charge a fee established in accordance with Section [63-38-3.2] 63J-1-303 for processing any notification of change submitted by an applicant, licensee, or certificate holder.
(3) (a) When providing the division a business location or home street address, a physical location or street address must be provided.
(b) When providing a mailing address, an applicant, licensee, or certificate holder may provide a post office box or other mail drop location.
(4) Failure to notify the division of a change described in Subsection (1) is separate grounds for disciplinary action against the applicant, licensee, or certificate holder.
(5) An applicant, licensee, or certificate holder is considered to have received any notification that has been sent to the last address furnished to the division by the applicant, licensee, or certificate holder.
Section 1096. Section 61-2-9 is amended to read:
61-2-9
. Examination and license fees -- Criminal background check -- Renewal of licenses -- Education requirements -- Activation of inactive licenses -- Recertification -- Licenses of firm, partnership, or association -- Miscellaneous fees.(1) (a) Upon filing an application for a principal broker, associate broker, or sales agent license examination, the applicant shall pay a nonrefundable fee as determined by the commission with the concurrence of the division under Section [63-38-3.2] 63J-1-303 for admission to the examination.
(b) A principal broker, associate broker, or sales agent applicant shall pay a nonrefundable fee as determined by the commission with the concurrence of the division under Section [63-38-3.2] 63J-1-303 for issuance of an initial license or license renewal.
(c) Each license issued under this Subsection (1) shall be issued for a period of not less than two years as determined by the division with the concurrence of the commission.
(d) (i) Any of the following applicants shall comply with this Subsection (1)(d):
(A) a new sales agent applicant; or
(B) an out-of-state broker applicant.
(ii) An applicant described in this Subsection (1)(d) shall:
(A) submit fingerprint cards in a form acceptable to the division at the time the license application is filed; and
(B) consent to a criminal background check by the Utah Bureau of Criminal Identification and the Federal Bureau of Investigation regarding the application.
(iii) The division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check for each applicant described in this Subsection (1)(d) through the national criminal history system or any successor system.
(iv) The cost of the criminal background check and the fingerprinting shall be borne by the applicant.
(v) Funds paid to the division by an applicant for the cost of the criminal background check shall be nonlapsing.
(e) (i) Any license issued under Subsection (1)(d) shall be conditional, pending completion of the criminal background check. If the criminal background check discloses the applicant has failed to accurately disclose a criminal history, the license shall be immediately and automatically revoked.
(ii) Any person whose conditional license has been revoked under Subsection (1)(e)(i) shall be entitled to a post-revocation hearing to challenge the revocation. The hearing shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(iii) The division director shall designate one of the following to act as the presiding officer in a postrevocation hearing described in this Subsection (1)(e):
(A) the division; or
(B) the division with the concurrence of the commission.
(iv) The decision on whether relief from the revocation of a license under this Subsection (1)(e) will be granted shall be made by the presiding officer.
(v) Relief from a revocation under this Subsection (1)(e) may be granted only if:
(A) the criminal history upon which the division based the revocation:
(I) did not occur; or
(II) is the criminal history of another person;
(B) (I) the revocation is based on a failure to accurately disclose a criminal history; and
(II) the applicant had a reasonable good faith belief at the time of application that there was no criminal history to be disclosed; or
(C) the division failed to follow the prescribed procedure for the revocation.
(vi) If a license is revoked or a revocation under this Subsection (1)(e) is upheld after a post-revocation hearing, the person may not apply for a new license until at least 12 months after the day on which the license is revoked.
(2) (a) (i) A license expires if it is not renewed on or before its expiration date.
(ii) As a condition of renewal, each active licensee shall demonstrate competence:
(A) by viewing an approved real estate education video program and completing a supplementary workbook; or
(B) by completing 12 hours of professional education approved by the division and commission within each two-year renewal period.
(iii) The division with the concurrence of the commission shall certify education which may include:
(A) state conventions;
(B) home study courses;
(C) video courses; and
(D) closed circuit television courses.
(iv) The commission with concurrence of the division may exempt a licensee from the education requirement of this Subsection (2)(a) for a period not to exceed four years:
(A) upon a finding of reasonable cause, including military service; and
(B) under conditions established by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) For a period of 30 days after the expiration date of a license, the license may be reinstated upon:
(i) payment of a renewal fee and a late fee determined by the commission with the concurrence of the division under Section [63-38-3.2] 63J-1-303; and
(ii) providing proof acceptable to the division and the commission of the licensee having completed the hours of education or demonstrated competence as required under Subsection (2)(a).
(c) After the 30-day period described in Subsection (2)(b), and until six months after the expiration date, the license may be reinstated by:
(i) paying a renewal fee and a late fee determined by the commission with the concurrence of the division under Section [63-38-3.2] 63J-1-303;
(ii) providing to the division proof of satisfactory completion of 12 hours of continuing education:
(A) in addition to the requirements for a timely renewal; and
(B) on a subject determined by the commission by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(iii) providing proof acceptable to the division and the commission of the licensee having:
(A) completed the hours of education; or
(B) demonstrated competence as required under Subsection (2)(a).
(d) A person who does not renew that person's license within six months after the expiration date shall be relicensed as prescribed for an original application.
(3) (a) As a condition for the activation of an inactive license that was in an inactive status at the time of the licensee's most recent renewal, the licensee shall supply the division with proof of:
(i) successful completion of the respective sales agent or broker licensing examination within six months prior to applying to activate the license; or
(ii) the successful completion of 12 hours of continuing education that the licensee would have been required to complete under Subsection (2)(a) if the license had been on active status at the time of the licensee's most recent renewal.
(b) The commission may, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establish by rule:
(i) the nature or type of continuing education required for reactivation of a license; and
(ii) how long prior to reactivation the continuing education must have been completed.
(4) (a) A principal broker license may be granted to a corporation, partnership, or association if the corporation, partnership, or association has affiliated with it an individual who:
(i) has qualified as a principal broker under the terms of this chapter; and
(ii) serves in the capacity of a principal broker.
(b) Application for the license described in Subsection (4)(a) shall be made in accordance with the rules adopted by the division with the concurrence of the commission.
(5) The division may charge and collect reasonable fees determined by the commission with the concurrence of the division under Section [63-38-3.2] 63J-1-303 to cover the costs for:
(a) issuance of a new or duplicate license;
(b) license histories or certifications;
(c) certified copies of official documents, orders, and other papers and transcripts;
(d) certifying real estate schools, courses, and instructors, the fees for which shall, notwithstanding Section 13-1-2, be deposited in the Real Estate Education, Research, and Recovery Fund; and
(e) other duties required by this chapter.
(6) If a licensee submits or causes to be submitted a check, draft, or other negotiable instrument to the division for payment of fees, and the check, draft, or other negotiable instrument is dishonored, the transaction for which the payment was submitted is void and will be reversed by the division if payment of the applicable fee is not received in full.
(7) (a) The fees under this chapter and the additional license fee for the Real Estate Education, Research, and Recovery Fund under Section 61-2a-4 are in lieu of all other license fees or assessments that might otherwise be imposed or charged by the state or any of its political subdivisions, upon, or as a condition of, the privilege of conducting the business regulated by this chapter, except that a political subdivision within the state may charge a business license fee on a principal broker if the principal broker maintains a place of business within the jurisdiction of the political subdivision.
(b) Unless otherwise exempt, each licensee under this chapter is subject to all taxes imposed under Title 59, Revenue and Taxation.
Section 1097. Section 61-2-10 is amended to read:
61-2-10
. Restriction on commissions -- Affiliation with more than one broker -- Specialized licenses -- Designation of agents or brokers.(1) It is unlawful for any associate broker or sales agent to accept valuable consideration for the performance of any of the acts specified in this chapter from any person except the principal broker with whom he is affiliated and licensed.
(2) An inactive associate broker or sales agent is not authorized to conduct real estate transactions until the inactive associate broker or sales agent becomes affiliated with a licensed principal broker and submits the required documentation to the division. An inactive principal broker is not authorized to conduct real estate transactions until the principal broker’s license is activated with the division.
(3) No sales agent or associate broker may affiliate with more than one principal broker at the same time.
(4) (a) Except as provided by rule, a principal broker may not be responsible for more than one real estate brokerage at the same time.
(b) In addition to issuing principal broker, associate broker, and sales agent licenses authorizing the performance of all of the acts set forth in Subsection 61-2-2(12), the division may issue specialized sales licenses and specialized property management licenses with the scope of practice limited to the specialty. An individual may hold a specialized license in addition to a license to act as a principal broker, an associate broker, or a sales agent. The commission may adopt rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Procedures Act, for the administration of this provision, including prelicensing and postlicensing education requirements, examination requirements, affiliation with real estate brokerages or property management companies, and other licensing procedures.
(c) An individual may not be a principal broker of a brokerage and a sales agent or associate broker for a different brokerage at the same time.
(5) Any owner, purchaser, lessor, or lessee who engages the services of a principal broker may designate which sales agents or associate brokers affiliated with that principal broker will also represent that owner, purchaser, lessor, or lessee in the purchase, sale, lease, or exchange of real estate, or in exercising an option relating to real estate.
Section 1098. Section 61-2-12 is amended to read:
61-2-12
. Disciplinary action -- Judicial review.(1) (a) On the basis of a violation of this chapter, the commission with the concurrence of the director, may issue an order:
(i) imposing an educational requirement;
(ii) imposing a civil penalty not to exceed the greater of:
(A) $2,500 for each violation; or
(B) the amount of any gain or economic benefit derived from each violation;
(iii) taking any of the following actions related to a license or certificate:
(A) revoking;
(B) suspending;
(C) placing on probation;
(D) denying the renewal, reinstatement, or application for an original license or certificate; or
(E) in the case of denial or revocation of a license or certificate, setting a waiting period for an applicant to apply for a license or certificate under this title;
(iv) issuing a cease and desist order; or
(v) doing any combination of Subsections (1)(a)(i) through (iv).
(b) If the licensee is an active sales agent or active associate broker, the division shall inform the principal broker with whom the licensee is affiliated of the charge and of the time and place of any hearing.
(2) (a) Any applicant, certificate holder, licensee, or person aggrieved, including the complainant, may obtain agency review by the executive director and judicial review of any adverse ruling, order, or decision of the division.
(b) If the applicant, certificate holder, or licensee prevails in the appeal and the court finds that the state action was undertaken without substantial justification, the court may award reasonable litigation expenses to the applicant, certificate holder, or licensee as provided under Title 78, Chapter 27a, Small Business Equal Access to Justice Act.
(c) (i) An order, ruling, or decision of the division shall take effect and become operative 30 days after the service of the order, ruling, or decision unless otherwise provided in the order.
(ii) If an appeal is taken by a licensee, the division may stay enforcement of an order, ruling, or decision in accordance with Section [63-46b-18] 63G-4-405.
(iii) The appeal shall be governed by the Utah Rules of Appellate Procedure.
(3) The commission and the director shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in all adjudicative proceedings.
Section 1099. Section 61-2-21 is amended to read:
61-2-21
. Remedies and action for violations.(1) (a) The director shall issue and serve upon a person an order directing that person to cease and desist from an act if:
(i) the director has reason to believe that the person has been engaging, is about to engage, or is engaging in the act constituting a violation of this chapter; and
(ii) it appears to the director that it would be in the public interest to stop the act.
(b) Within ten days after receiving the order, the person upon whom the order is served may request an adjudicative proceeding.
(c) Pending the hearing, any cease and desist order shall remain in effect.
(d) If a request for a hearing is made, the division shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) (a) After the hearing, if the commission and the director agree that the act of the person violates this chapter, the director:
(i) shall issue an order making the order issued under Subsection (1) permanent; and
(ii) may impose a civil penalty not to exceed the greater of:
(A) $2,500 for each violation; or
(B) the amount of any gain or economic benefit derived from each violation.
(b) The director shall file suit in the name of the Department of Commerce and the Division of Real Estate, in the district court in the county in which an act described in Subsection (1) occurred or where the person resides or carries on business, to enjoin and restrain the person from violating this chapter if:
(i) (A) no hearing is requested; and
(B) the person fails to cease the act described in Subsection (1); or
(ii) after discontinuing the act described in Subsection (1), the person again commences the act.
(c) The district courts of this state shall have jurisdiction of an action brought under this section.
(d) Upon a proper showing in an action brought under this section related to an undivided fractionalized long-term estate, the court may:
(i) issue a permanent or temporary, prohibitory or mandatory injunction;
(ii) issue a restraining order or writ of mandamus;
(iii) enter a declaratory judgment;
(iv) appoint a receiver or conservator for the defendant or the defendant's assets;
(v) order disgorgement;
(vi) order rescission;
(vii) impose a civil penalty not to exceed the greater of:
(A) $2,500 for each violation; or
(B) the amount of any gain or economic benefit derived from each violation; and
(viii) enter any other relief the court considers just.
(e) The court may not require the division to post a bond in an action brought under this Subsection (2).
(3) The remedies and action provided in this section may not interfere with, or prevent the prosecution of, any other remedies or actions including criminal proceedings.
Section 1100. Section 61-2-26 is amended to read:
61-2-26
. Rulemaking required for offer or sale of an undivided fractionalized long-term estate -- Disclosures -- Management agreement.(1) (a) A licensee or certificate holder under this chapter who sells or offers to sell an undivided fractionalized long-term estate shall comply with the disclosure requirements imposed by rules made by the commission under this section.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules as to the timing, form, and substance of disclosures required to be made by a licensee or certificate holder under this section.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules imposing requirements for a management agreement related to an undivided fractionalized long-term estate that makes the offer or sale of the undivided fractionalized long-term estate treated as a real estate transaction and not treated as an offer or sale of a security under Chapter 1, Utah Uniform Securities Act.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules establishing:
(a) the disclosures required in the sale or offer of an undivided fractionalized long-term estate that is subject to a master lease;
(b) requirements for the management of a master lease on an undivided fractionalized long-term estate; and
(c) the requirements on the structure of a master lease on an undivided fractionalized long-term estate.
Section 1101. Section 61-2-28 (Effective 10/01/07) is amended to read:
61-2-28 (Effective 10/01/07)
. Utah Housing Opportunity Restricted Account.(1) There is created in the General Fund a restricted account known as the "Utah Housing Opportunity Restricted Account."
(2) The account shall be funded by:
(a) contributions deposited into the Utah Housing Opportunity Restricted Account in accordance with Section 41-1a-422;
(b) private contributions;
(c) donations or grants from public or private entities; and
(d) interest and earnings on fund monies.
(3) Funds in the account are nonlapsing.
(4) The Legislature shall appropriate money in the account to the division.
(5) The division shall distribute the funds to one or more charitable organizations that:
(a) qualify as being tax exempt under Section 501(c)(3), Internal Revenue Code; and
(b) have as a primary part of their mission to provide support to organizations that create affordable housing for those in severe need.
(6) The division may only consider proposals that are:
(a) proposed by an organization under Subsection (5); and
(b) designed to provide support to organizations that create affordable housing for those in severe need.
(7) (a) An organization described in Subsection (5) may apply to the division to receive a distribution in accordance with Subsection (5).
(b) An organization that receives a distribution from the division in accordance with Subsection (5) shall expend the distribution only to provide support to organizations that create affordable housing for those in severe need.
(8) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules providing procedures for an organization to apply to receive funds under this section.
Section 1102. Section 61-2b-2 is amended to read:
61-2b-2
. Definitions.(1) As used in this chapter:
(a) (i) "Appraisal" means an unbiased analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in, or aspects of, identified real estate or identified real property.
(ii) An appraisal shall be classified by the nature of the assignment as a valuation appraisal, an analysis assignment, or a review assignment in accordance with the following definitions:
(A) "Valuation appraisal" means an unbiased analysis, opinion, or conclusion that estimates the value of an identified parcel of real estate or identified real property at a particular point in time.
(B) "Analysis assignment" means an unbiased analysis, opinion, or conclusion that relates to the nature, quality, or utility of identified real estate or identified real property.
(C) "Review assignment" means an unbiased analysis, opinion, or conclusion that forms an opinion as to the adequacy and appropriateness of a valuation appraisal or an analysis assignment.
(b) "Appraisal Foundation" means the Appraisal Foundation that was incorporated as an Illinois not-for-profit corporation on November 30, 1987.
(c) (i) "Appraisal report" means any communication, written or oral, of an appraisal.
(ii) An appraisal report shall be classified by the nature of the assignment as a valuation report, analysis report, or review report in accordance with the definitions provided in Subsection (1)(a)(ii).
(iii) The testimony of a person relating to the person’s analyses, conclusions, or opinions concerning identified real estate or identified real property is considered to be an oral appraisal report.
(d) "Board" means the Real Estate Appraiser Licensing and Certification Board that is established in Section 61-2b-7.
(e) "Certified appraisal report" means a written or oral appraisal report that is certified by a state-certified general appraiser or state-certified residential appraiser.
(f) (i) (A) "Consultation service" means an engagement to provide a real estate valuation service analysis, opinion, conclusion, or other service that does not fall within the definition of appraisal.
(B) "Consultation service" does not mean a valuation appraisal, analysis assignment, or review assignment.
(ii) Regardless of the intention of the client or employer, if a person prepares an unbiased analysis, opinion, or conclusion, the analysis, opinion, or conclusion is considered to be an appraisal and not a consultation service.
(g) "Contingent fee" means a fee or other form of compensation, payment of which is dependent on or conditioned by:
(i) the reporting of a predetermined analysis, opinion, or conclusion by the person performing the analysis, opinion, or conclusion; or
(ii) achieving a result specified by the person requesting the analysis, opinion, or conclusion.
(h) "Division" means the Division of Real Estate of the Department of Commerce.
(i) "Federally related transaction" means any real estate related transaction that is required by federal law or by federal regulation to be supported by an appraisal prepared by:
(i) a state-licensed appraiser; or
(ii) a state-certified appraiser.
(j) "Real estate" means an identified parcel or tract of land including improvements if any.
(k) "Real estate appraisal activity" means the act or process of making an appraisal of real estate or real property and preparing an appraisal report.
(l) "Real estate related transaction" means:
(i) the sale, lease, purchase, investment in, or exchange of real property or an interest in real property, or the financing of such a transaction;
(ii) the refinancing of real property or an interest in real property; or
(iii) the use of real property or an interest in real property as security for a loan or investment, including mortgage-backed securities.
(m) "Real property" means one or more defined interests, benefits, or rights inherent in the ownership of real estate.
(n) "State-certified general appraiser" means a person who holds a current, valid certification as a state-certified general appraiser issued under this chapter.
(o) "State-certified residential appraiser" means a person who holds a current, valid certification as a state-certified residential real estate appraiser issued under this chapter.
(p) "State-licensed appraiser" means a person who holds a current, valid license as a state-licensed appraiser issued under this chapter.
(q) "State-registered appraiser" means a person who before May 3, 1999, was registered as an appraiser under this chapter.
(r) "Trainee" means an individual who:
(i) does not hold an appraiser license or appraiser certification issued under this chapter; and
(ii) works under the direct supervision of a state-licensed appraiser or state-certified appraiser to earn experience for licensure.
(s) "Unbiased analysis, opinion, or conclusion" means an analysis, opinion, or conclusion relating to the nature, quality, value, or utility of identified real estate or identified real property that is prepared by a person who is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering the analysis, opinion, or conclusion.
(2) (a) If a term not defined in this section is defined by rule, the term shall have the meaning established by the division by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) If a term not defined in this section is not defined by rule, the term shall have the meaning commonly accepted in the business community.
Section 1103. Section 61-2b-6 is amended to read:
61-2b-6
. Duties and powers of division.(1) The division shall have the powers and duties listed in this Subsection (1).
(a) The division shall:
(i) receive applications for licensing and certification;
(ii) establish appropriate administrative procedures for the processing of applications for licensure or certification;
(iii) issue licenses and certifications to qualified applicants pursuant to this chapter; and
(iv) maintain a registry of the names and addresses of individuals who are currently licensed or certified as appraisers under this chapter.
(b) (i) The division shall require a trainee to notify the division that the trainee is acting in the capacity of a trainee earning experience for licensure.
(ii) The board shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the trainee notification required by this Subsection (1)(b).
(c) The division shall hold public hearings under the direction of the board.
(d) The division may:
(i) solicit bids and enter into contracts with one or more educational testing services or organizations for the preparation of a bank of questions and answers approved by the board for licensing and certification examinations; and
(ii) administer or contract for the administration of licensing and certification examinations as may be required to carry out the division's responsibilities under this chapter.
(e) The division shall provide administrative assistance to the board by providing to the board the facilities, equipment, supplies, and personnel that are required to enable the board to carry out the board's responsibilities under this chapter.
(f) The division shall assist the board in upgrading and improving the quality of the education and examinations required under this chapter.
(g) The division shall assist the board in improving the quality of the continuing education available to persons licensed and certified under this chapter.
(h) The division shall assist the board with respect to the proper interpretation or explanation of the Uniform Standards of Professional Appraisal Practice as required by Section 61-2b-27 when an interpretation or explanation becomes necessary in the enforcement of this chapter.
(i) The division shall establish fees in accordance with Section [63-38-3.2] 63J-1-303:
(i) for processing:
(A) trainee notifications;
(B) applications for licensing and certification; and
(C) registration of expert witnesses; and
(ii) for all other functions required or permitted by this chapter.
(j) The division may:
(i) investigate complaints against:
(A) trainees; or
(B) persons licensed or certified under this chapter;
(ii) subpoena witnesses and the production of books, documents, records, and other papers;
(iii) administer oaths; and
(iv) take testimony and receive evidence concerning all matters within the division's jurisdiction.
(k) The division may promote research and conduct studies relating to the profession of real estate appraising and sponsor real estate appraisal educational activities.
(l) The division shall adopt, with the concurrence of the board, rules for the administration of this chapter pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that are not inconsistent with this chapter or the constitution and laws of this state or of the United States.
(m) The division shall employ an appropriate staff to investigate allegations that persons licensed or certified under this chapter failed to comply with this chapter.
(n) The division may employ such other professional, clerical, and technical staff as may be necessary to properly administer the work of the division under this chapter.
(o) The division may make available, at a reasonable cost determined by the division, a list of the names and addresses of all persons licensed or certified by the division under this chapter to the extent the information is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) (a) The division shall register expert witnesses who are not otherwise licensed or certified under this chapter to appear in all administrative and judicial tax proceedings to provide evidence related to the valuation of real property that is assessed by the tax commission, provided that the:
(i) registration is limited to a specific proceeding;
(ii) registration is valid until the proceeding becomes final;
(iii) applicant pays a registration fee to the division;
(iv) applicant provides the applicant's name, address, occupation, and professional credentials; and
(v) applicant provides a notarized statement that:
(A) the applicant is competent to render an appraisal and to testify as an expert witness in the proceeding; and
(B) the appraisal and testimony to be offered shall be in accordance with the Uniform Standards of Professional Appraisal Practice adopted by the board.
(b) Subsection (2)(a) shall be effective for all administrative and judicial property tax proceedings related to the valuation of real property that is assessed by the tax commission, including those filed but which are not final as of May 3, 1994.
(3) The division shall be immune from any civil action or criminal prosecution for initiating or assisting in any lawful investigation of the actions of or participating in any disciplinary proceeding concerning a trainee or a person licensed, certified, or registered as an expert witness pursuant to this chapter if the action is taken without malicious intent and in the reasonable belief that the action was taken pursuant to the powers and duties vested in the members of the division under this chapter.
Section 1104. Section 61-2b-8 is amended to read:
61-2b-8
. Duties of board.The board shall provide technical assistance to the division relating to real estate appraisal standards and real estate appraiser qualifications and shall have the responsibilities, powers, and duties listed in this section.
(1) The board shall:
(a) determine the experience, education, and examination requirements appropriate for persons licensed under this chapter;
(b) determine the experience, education, and examination requirements appropriate for persons certified under this chapter in compliance with the minimum requirements of Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and consistent with the intent of this chapter;
(c) determine the appraisal related acts that may be performed by:
(i) a trainee on the basis of the trainee's education and experience;
(ii) clerical staff; and
(iii) a person who:
(A) does not hold a license or certification; and
(B) assists appraisers licensed or certified under this chapter in providing appraisal services or consultation services;
(d) determine the procedures for a trainee notifying the division that the trainee will assist persons licensed or certified under this chapter in providing appraisal services or consultation services; and
(e) develop programs to upgrade and improve the experience, education, and examinations as required under this chapter.
(2) (a) The experience, education, and examination requirements established by the board for persons licensed or certified under this chapter shall be the minimum criteria established by the Appraiser Qualification Board of the Appraisal Foundation, unless, after notice and a public hearing held in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board finds that the minimum criteria are not appropriate for state-licensed appraisers or state-certified appraisers in this state.
(b) If under Subsection (2)(a) the board makes a finding that the minimum criteria are not appropriate, the board shall recommend appropriate criteria to the Legislature.
(3) The board shall:
(a) determine the continuing education requirements appropriate for the renewal of licenses and certifications issued under this chapter;
(b) develop programs to upgrade and improve continuing education; and
(c) recommend to the division available continuing education courses that meet the requirements of this chapter.
(4) (a) The board shall consider the proper interpretation or explanation of the Uniform Standards of Professional Appraisal Practice as required by Section 61-2b-27 when:
(i) an interpretation or explanation becomes necessary in the enforcement of this chapter; and
(ii) the Appraisal Standards Board of the Appraisal Foundation has not as yet issued an interpretation or explanation.
(b) If the conditions of Subsection (4)(a) are met, the board shall recommend to the division the appropriate interpretation or explanation that the division should adopt as a rule under this chapter.
(5) The board shall develop and establish or approve the examination specifications and the minimum score required to pass the examinations for licensure and certification.
(6) The board shall review the:
(a) bank of questions and answers that comprise the examination for persons licensed and certified under this chapter;
(b) procedure that is established for selecting individual questions from the bank of questions for use in each scheduled examination; and
(c) questions in the bank of questions and the related answers to determine whether they meet the examination specifications established by the board.
(7) (a) The board shall conduct administrative hearings, not delegated by the board to an administrative law judge, in connection with all disciplinary proceedings under Sections 61-2b-30 and 61-2b-31 concerning:
(i) a person licensed or certified under this chapter; and
(ii) the person's failure to comply with this chapter and the Uniform Standards of Professional Appraisal Practice as adopted under Section 61-2b-27.
(b) The board shall issue in each administrative hearing a decision that contains findings of fact and conclusions of law.
(c) When a determination is made that a person licensed or certified under this chapter has violated any provision of this chapter, the division shall implement disciplinary action determined by the board.
(8) The members of the board shall be immune from any civil action or criminal prosecution for any disciplinary proceeding concerning a person registered, licensed, or certified under this chapter if the action is taken without malicious intent and in the reasonable belief that the action taken was taken pursuant to the powers and duties vested in the members of the board under this chapter.
(9) The board shall require and pass upon proof necessary to determine the honesty, competency, integrity, and truthfulness of each applicant for original or renewal licensure or certification.
Section 1105. Section 61-2b-18 is amended to read:
61-2b-18
. Application for certification or licensure -- Registration as an expert witness.(1) An application for the following shall be sent to the division on forms approved by the division:
(a) original certification or licensure;
(b) registration as an expert witness; and
(c) renewal of certification or licensure.
(2) The payment of the appropriate fee, as fixed by the division with the concurrence of the board in accordance with Section [63-38-3.2] 63J-1-303, must accompany an application for:
(a) registration as an expert witness;
(b) original certification or licensure; and
(c) renewal of certification or licensure.
(3) At the time of filing an application described in Subsection (1), each applicant shall:
(a) sign a pledge to comply with the Uniform Standards of Professional Appraisal Practice and the ethical rules to be observed by an appraiser that are established under Section 61-2b-27 for certified or licensed appraisers or registered expert witnesses under this chapter; and
(b) certify that the applicant understands the types of misconduct, as set forth in this chapter, for which disciplinary proceedings may be initiated against persons certified or licensed under this chapter.
Section 1106. Section 61-2b-21 is amended to read:
61-2b-21
. Denial of licensure or certification.The division may, upon compliance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, deny the issuance of a license or certification to an applicant on any of the grounds enumerated in this chapter.
Section 1107. Section 61-2b-22 is amended to read:
61-2b-22
. Licensing, certification, or expert witness requirements for nonresidents -- Temporary license or certificate -- Revocation.(1) Each applicant for registration as an expert witness, licensure, or certification under this chapter who is not a resident of this state shall submit with the applicant's application an irrevocable consent that service of process upon the applicant may be made by delivery of the process to the director of the division if, in an action against the applicant in a court of this state arising out of the applicant's activities as a real estate appraiser in this state, the plaintiff cannot, in the exercise of due diligence, obtain personal service upon the applicant.
(2) A nonresident of this state who has complied with the provisions of Subsection (1) may obtain a registration as an expert witness, a license, or a certification in this state by complying with all of the provisions of this chapter relating to registration of expert witnesses, licensure, or certification.
(3) A nonresident of this state who has complied with the provisions of Subsection (1) may obtain a temporary license or certification to perform a contract relating to the appraisal of real estate or real property in this state. To qualify for the issuance of a temporary license or certification, an applicant must:
(a) submit an application on a form approved by the division;
(b) submit evidence that the applicant is licensed or certified in the state in which the applicant primarily conducts business;
(c) certify that no formal charges alleging violation of state appraisal licensing or certification laws have been filed against the applicant by the applicant's state of domicile; and
(d) pay an application fee in an amount established by the division with the concurrence of the board.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division, with the concurrence of the board, shall make rules establishing the duration of a temporary permit and procedures for renewal of a temporary permit.
(5) A temporary permit issued under this section shall be immediately and automatically revoked if the appraiser's license or certification is suspended or revoked in the appraiser's state of domicile.
(6) Any person whose license or certification has been revoked under Subsection (5) is entitled to a postrevocation hearing to challenge the revocation. The hearing shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 1108. Section 61-2b-27 is amended to read:
61-2b-27
. Professional conduct -- Uniform standards.(1) (a) Each person licensed, certified, or registered as an expert witness under this chapter must comply with generally accepted standards of professional appraisal practice and generally accepted ethical rules to be observed by a real estate appraiser.
(b) Generally accepted standards of professional appraisal practice are evidenced by the Uniform Standards of Professional Appraisal Practice promulgated by the Appraisal Foundation.
(c) After a public hearing held in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall adopt and may make modifications of or additions to the Uniform Standards of Professional Appraisal Practice as the board considers appropriate to comply with the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
(2) If the Appraisal Standards Board of the Appraisal Foundation modifies the Uniform Standards of Professional Appraisal Practice, issues supplemental appraisal standards which it considers appropriate for residential real estate appraisers or for general real estate appraisers, or issues ethical rules to be observed by a real estate appraiser and requests the board to consider the adoption of the modified or supplemental standards or ethical rules, the board shall schedule a public hearing pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the purpose of deciding whether or not the board should require the modified or supplemental standards or the ethical rules to be observed by persons licensed, certified, or registered as an expert witness under this chapter.
(3) If, after the notice and public hearing, the board finds that the modified or supplemental standards or the ethical rules issued by the Appraisal Standards Board of the Appraisal Foundation are appropriate for persons licensed, certified, or registered as an expert witness under this chapter, the board shall recommend rules requiring all persons licensed, certified, or registered as an expert witness under this chapter to observe the modified or supplemental standards or the ethical rules.
Section 1109. Section 61-2b-28 is amended to read:
61-2b-28
. Enforcement -- Investigation -- Orders -- Hearings.(1) (a) The division may investigate the actions of:
(i) any person licensed or certified under this chapter;
(ii) an applicant for licensure or certification;
(iii) an applicant for renewal of licensure or certification; or
(iv) a person required to be licensed or certified under this chapter.
(b) The division may initiate an agency action against a person described in Subsection (1)(a) in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to:
(i) impose disciplinary action;
(ii) deny issuance to an applicant of an original or renewal license or certification; or
(iii) issue a cease and desist order as provided in Subsection (3).
(2) (a) The division may:
(i) administer an oath or affirmation;
(ii) subpoena witnesses;
(iii) take evidence; and
(iv) require the production of books, papers, contracts, records, other documents, or information relevant to the investigation described in Subsection (1).
(b) The division may serve subpoenas by certified mail.
(c) Each failure to respond to a request by the division in an investigation authorized under this chapter is considered to be a separate violation of this chapter, including:
(i) failing to respond to a subpoena;
(ii) withholding evidence; or
(iii) failing to produce documents or records.
(3) (a) The director shall issue and serve upon a person an order directing that person to cease and desist from an act if:
(i) the director has reason to believe that the person has been engaging, is about to engage, or is engaging in the act constituting a violation of this chapter; and
(ii) it appears to the director that it would be in the public interest to stop the act.
(b) Within ten days after receiving the order, the person upon whom the order is served may request an adjudicative proceeding.
(c) Pending the hearing, the cease and desist order shall remain in effect.
(d) If a request for hearing is made, the division shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) (a) After the hearing, if the board agrees that the acts of the person violate this chapter, the board:
(i) shall issue an order making the cease and desist order permanent; and
(ii) may impose a civil penalty not to exceed the greater of:
(A) $2,500 for each violation; or
(B) the amount of any gain or economic benefit derived from each violation.
(b) The director shall commence an action in the name of the Department of Commerce and Division of Real Estate, in the district court in the county in which an act described in Subsection (3) occurs or where the person resides or carries on business, to enjoin and restrain the person from violating this chapter if:
(i) (A) no hearing is requested; and
(B) the person fails to cease the act described in Subsection (3); or
(ii) after discontinuing the act described in Subsection (3), the person again commences the act.
(5) The remedies and action provided in this section do not limit, interfere with, or prevent the prosecution of any other remedies or actions including criminal proceedings.
Section 1110. Section 61-2b-30 is amended to read:
61-2b-30
. Compliance with Administrative Procedures Act.The division and board shall comply with [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act, in conducting any disciplinary proceedings under this chapter.
Section 1111. Section 61-2b-37 is amended to read:
61-2b-37
. Division service fees -- Federal registry fees.(1) The division, with the concurrence of the board, shall establish and collect fees in accordance with Section [63-38-3.2] 63J-1-303 for its services under this chapter.
(2) The division shall collect the annual registry fee established by the Federal Financial Institutions Examinations Council from those certificate holders who seek to perform appraisals in federally related transactions. The division shall transmit the fees to the federal Appraisal Subcommittee at least annually.
Section 1112. Section 61-2c-102 is amended to read:
61-2c-102
. Definitions.(1) As used in this chapter:
(a) "Affiliate" means an individual or an entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a specified individual or entity.
(b) "Applicant" means an individual or entity applying for a license under this chapter.
(c) "Associate lending manager" means a person who:
(i) has qualified under this chapter as a principal lending manager; and
(ii) works by or on behalf of another principal lending manager in transacting the business of residential mortgage loans.
(d) "Branch office" means a licensed entity's office:
(i) for the transaction of the business of residential mortgage loans regulated under this chapter; and
(ii) other than the main office of the licensed entity.
(e) (i) "Business of residential mortgage loans" means for compensation to:
(A) make or originate a residential mortgage loan;
(B) directly or indirectly solicit, place, or negotiate a residential mortgage loan for another; or
(C) render services related to the origination of a residential mortgage loan including:
(I) taking applications; and
(II) communicating with the borrower and lender.
(ii) "Business of residential mortgage loans" does not include:
(A) the performance of clerical functions such as:
(I) gathering information related to a residential mortgage loan on behalf of the prospective borrower or a person licensed under this chapter; or
(II) requesting or gathering information, word processing, sending correspondence, or assembling files by an individual who works under the instruction of a person licensed under this chapter;
(B) ownership of an entity that engages in the business of residential mortgage loans if the owner does not personally perform the acts listed in Subsection (1)(e)(i);
(C) acting as a loan wholesaler;
(D) acting as an account executive for a loan wholesaler;
(E) acting as a loan underwriter;
(F) acting as a loan closer; or
(G) funding a loan.
(f) "Closed-end" means a loan with a fixed amount borrowed and which does not permit additional borrowing secured by the same collateral.
(g) "Commission" means the Residential Mortgage Regulatory Commission created in Section 61-2c-104.
(h) "Compensation" means anything of economic value that is paid, loaned, granted, given, donated, or transferred to an individual or entity for or in consideration of:
(i) services;
(ii) personal or real property; or
(iii) other thing of value.
(i) "Control," as used in Subsection (1)(a), means the power to directly or indirectly:
(i) direct or exercise a controlling interest over:
(A) the management or policies of an entity; or
(B) the election of a majority of the directors, officers, managers, or managing partners of an entity;
(ii) vote 20% or more of any class of voting securities of an entity by an individual; or
(iii) vote more than 5% of any class of voting securities of any entity by another entity.
(j) "Depository institution" is as defined in Section 7-1-103.
(k) "Director" means the director of the division.
(l) "Division" means the Division of Real Estate.
(m) "Dwelling" means a residential structure attached to real property that contains one to four units including any of the following if used as a residence:
(i) a condominium unit;
(ii) a cooperative unit;
(iii) a manufactured home; or
(iv) a house.
(n) "Entity" means any corporation, limited liability company, partnership, company, association, joint venture, business trust, trust, or other organization.
(o) "Executive director" means the executive director of the Department of Commerce.
(p) "Inactive status" means a dormant status into which an unexpired license is placed when the holder of the license is not currently engaging in the business of residential mortgage loans.
(q) "Lending manager" or "principal lending manager" means a person licensed as a principal lending manager under Section 61-2c-206.
(r) "Licensee" means an individual or entity licensed with the division under this chapter.
(s) (i) Except as provided in Subsection (1)(s)(ii), "mortgage officer" means an individual who is licensed with the division to transact the business of residential mortgage loans through a principal lending manager.
(ii) "Mortgage officer" does not include a principal lending manager.
(t) "Record" means information that is:
(i) prepared, owned, received, or retained by an individual or entity; and
(ii) (A) inscribed on a tangible medium; or
(B) (I) stored in an electronic or other medium; and
(II) retrievable in perceivable form.
(u) "Residential mortgage loan" means a closed-end, first mortgage loan or extension of credit, if:
(i) the loan or extension of credit is secured by a:
(A) mortgage;
(B) deed of trust; or
(C) lien interest; and
(ii) the mortgage, deed of trust, or lien interest described in Subsection (1)(u)(i):
(A) is on a dwelling located in the state; and
(B) created with the consent of the owner of the residential real property.
(v) "State" means:
(i) a state, territory, or possession of the United States;
(ii) the District of Columbia; or
(iii) the Commonwealth of Puerto Rico.
(2) (a) If a term not defined in this section is defined by rule, the term shall have the meaning established by the division by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) If a term not defined in this section is not defined by rule, the term shall have the meaning commonly accepted in the business community.
Section 1113. Section 61-2c-103 is amended to read:
61-2c-103
. Powers and duties of the division.(1) The division shall administer this chapter.
(2) In addition to any power or duty expressly provided in this chapter, the division may:
(a) receive and act on complaints including:
(i) taking action designed to obtain voluntary compliance with this chapter; or
(ii) commencing administrative or judicial proceedings on the division's own initiative;
(b) establish programs for the education of consumers with respect to residential mortgage loans;
(c) (i) make studies appropriate to effectuate the purposes and policies of this chapter; and
(ii) make the results of the studies described in Subsection (2)(c)(i) available to the public;
(d) visit and investigate an entity licensed under this chapter, regardless of whether the entity is located in Utah; and
(e) employ any necessary hearing examiners, investigators, clerks, and other employees and agents.
(3) The division shall make rules for the administration of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, including:
(a) licensure procedures for:
(i) individuals and entities required by this chapter to obtain a license with the division; and
(ii) the establishment of a branch office by an entity;
(b) proper handling of funds received by licensees;
(c) record-keeping requirements by licensees; and
(d) standards of conduct for licensees.
(4) The division may make available to the public a list of the names and mailing addresses of all licensees:
(a) either directly or through a third party; and
(b) at a reasonable cost.
(5) The division shall:
(a) certify education providers who offer:
(i) prelicensing education to candidates for licensure under this chapter; or
(ii) continuing education to individuals licensed under this chapter; and
(b) make available to the public, licensees, and candidates for licensure a list of the names and addresses of all education providers certified under this Subsection (5).
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules establishing:
(a) certification criteria and procedures for providers of prelicensing education and continuing education; and
(b) standards of conduct for certified education providers.
(7) The division may charge a fee established in accordance with Section [63-38-3.2] 63J-1-303 for processing any of the changes that a licensee is required by Section 61-2c-205 to report to the division.
Section 1114. Section 61-2c-104 is amended to read:
61-2c-104
. Residential Mortgage Regulatory Commission.(1) (a) There is created within the division the Residential Mortgage Regulatory Commission consisting of the following members appointed by the executive director with the approval of the governor:
(i) four members having at least three years of experience in transacting the business of residential mortgage loans and who are currently licensed under this chapter; and
(ii) one member from the general public.
(b) (i) The executive director with the approval of the governor may appoint an alternate member to the board.
(ii) The alternate member shall:
(A) at the time of the appointment, have at least three years of experience in transacting the business of residential mortgage loans; and
(B) be licensed under this chapter at the time of and during appointment.
(2) (a) Except as required by Subsection (2)(b), the executive director shall appoint each new member or reappointed member subject to appointment by the executive director to a four-year term ending June 30.
(b) Notwithstanding the requirements of Subsection (2)(a), the executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of commission members are staggered so that approximately half of the commission is appointed every two years.
(c) If a vacancy occurs in the membership of the commission for any reason, the replacement shall be appointed for the unexpired term.
(3) Members of the commission shall annually select one member to serve as chair.
(4) (a) The commission shall meet at least quarterly.
(b) The director may call a meeting in addition to the meetings required by Subsection (4)(a):
(i) at the discretion of the director;
(ii) at the request of the chair of the commission; or
(iii) at the written request of three or more commission members.
(5) (a) Three members of the commission constitute a quorum for the transaction of business.
(b) If a quorum of members is unavailable for any meeting and an alternate member has been appointed to the commission by the executive director with the approval of the governor, the alternate member shall serve as a regular member of the commission for that meeting if with the presence of the alternate member there is a quorum present at the meeting.
(c) The action of a majority of a quorum present is an action of the commission.
(6) (a) (i) A member who is not a government employee shall receive no compensation or benefits for the member's services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A member who is not a government employee may decline to receive per diem and expenses for the member's service.
(b) (i) A state government officer and employee member who does not receive salary, per diem, or expenses from the member's agency for the member's service may receive per diem and expenses incurred in the performance of the member's official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) A state government officer and employee member may decline to receive per diem and expenses for the member's service.
(7) The commission shall:
(a) except as provided in Subsection 61-2c-202(2), concur in the licensure or denial of licensure of individuals and entities under this chapter in accordance with Part 2, Licensure;
(b) take disciplinary action with the concurrence of the director in accordance with Part 4, Enforcement;
(c) advise the division concerning matters related to the administration and enforcement of this chapter; and
(d) with the concurrence of the division, determine the requirements for:
(i) the examination required under Section 61-2c-202, covering at least:
(A) the fundamentals of the English language;
(B) arithmetic;
(C) the provisions of this chapter;
(D) rules adopted by the division;
(E) basic residential mortgage principles and practices; and
(F) any other aspect of Utah law the commission determines is appropriate;
(ii) with the concurrence of the division, the continuing education requirements under Section 61-2c-205, including:
(A) except as provided in Subsection 61-2c-202(4)(a)(iii) and Subsection 61-2c-206(1)(c), the appropriate number of hours of prelicensing education and required continuing education; and
(B) the subject matter of courses the division may accept for continuing education purposes;
(iii) with the concurrence of the division, the prelicensing education required under Sections 61-2c-202 and 61-2c-206, including online education or distance learning options; and
(iv) the examination required under Section 61-2c-206 covering:
(A) advanced residential mortgage principles and practices; and
(B) other aspects of Utah law the commission, with the concurrence of the division, determines appropriate.
(8) The commission may appoint a committee to make recommendations to the commission concerning approval of prelicensing education and continuing education courses.
(9) The commission and the division shall make the examination and prelicensing education and continuing education requirements described in this section available through the Internet or other distance education methods approved by the commission and division when reasonably practicable.
(10) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission, with the concurrence of the division, shall make rules establishing procedures under which a licensee may be exempted from continuing education requirements:
(a) for a period not to exceed four years; and
(b) upon a finding of reasonable cause.
Section 1115. Section 61-2c-105 is amended to read:
61-2c-105
. Scope of chapter.(1) (a) This chapter applies to a closed-end residential mortgage loan secured by a first lien or equivalent security interest on a one to four unit dwelling.
(b) This chapter does not apply to a transaction covered by Title 70C, Utah Consumer Credit Code.
(2) The following are exempt from this chapter:
(a) the federal government;
(b) a state;
(c) a political subdivision of a state;
(d) an agency of or entity created by a governmental entity described in Subsections (2)(a) through (c) including:
(i) the Utah Housing Corporation created in Title 9, Chapter 4, Part 9, Utah Housing Corporation Act;
(ii) the Federal National Mortgage Corporation;
(iii) the Federal Home Loan Mortgage Corporation;
(iv) the Federal Deposit Insurance Corporation;
(v) the Resolution Trust Corporation;
(vi) the Government National Mortgage Association;
(vii) the Federal Housing Administration;
(viii) the National Credit Union Administration;
(ix) the Farmers Home Administration; and
(x) the United States Department of Veterans Affairs;
(e) a depository institution;
(f) an affiliate of a depository institution;
(g) an employee or agent of an entity described in Subsections (2)(a) through (f) when that person acts on behalf of the entity described in Subsections (2)(a) through (f);
(h) an individual or entity:
(i) that makes a loan:
(A) secured by an interest in real property;
(B) with the individual's or the entity's own money; and
(C) for the individual's or entity's own investment; and
(ii) that does not engage in the business of making loans secured by an interest in real property;
(i) an individual or entity who receives a mortgage, deed of trust, or lien interest on real property if the individual or entity:
(i) is the seller of real property; and
(ii) receives the mortgage, deed of trust, or lien interest on real property as security for a separate money obligation;
(j) an individual or entity who receives a mortgage, deed of trust, or lien interest on real property if:
(i) the individual or entity receives the mortgage, deed of trust, or lien interest as security for an obligation payable on an installment or deferred payment basis;
(ii) the obligation described in Subsection (2)(j)(i) arises from an individual or entity providing materials or services used in the improvement of the real property that is the subject of the mortgage, deed of trust, or lien interest; and
(iii) the mortgage, deed of trust, or lien interest was created without the consent of the owner of the real property that is the subject of the mortgage, deed of trust, or lien interest;
(k) a nonprofit corporation that:
(i) is exempt from paying federal income taxes;
(ii) is certified by the United States Small Business Administration as a small business investment company;
(iii) is organized to promote economic development in this state; and
(iv) has as its primary activity providing financing for business expansion;
(l) a court appointed fiduciary; or
(m) an attorney admitted to practice law in this state:
(i) if the attorney is not principally engaged in the business of negotiating residential mortgage loans; and
(ii) when the attorney renders services in the course of the attorney's practice as an attorney.
(3) (a) Notwithstanding Subsection (2)(m), an attorney exempt from this chapter may not engage in conduct described in Section 61-2c-301 when transacting business of residential mortgage loans.
(b) If an attorney exempt from this chapter violates Subsection (3)(a), the attorney:
(i) is not subject to enforcement by the division under Part 4, Enforcement; and
(ii) is subject to disciplinary action generally applicable to an attorney admitted to practice law in this state.
(c) If the division receives a complaint alleging an attorney exempt from this chapter is in violation of Subsection (3)(a), the division shall forward the complaint to the Utah State Bar for disciplinary action.
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall, by rule, determine a date, on or after December 31, 2004, after which an individual who is exempt under Subsection (2) may voluntarily obtain a license pursuant to Subsection (4)(b).
(b) (i) After the date described in Subsection (4)(a), an individual who is exempt under Subsection (2) may voluntarily obtain a license under this chapter by complying with Part 2, Licensure.
(ii) An individual who voluntarily obtains a license pursuant to this Subsection (4)(b) shall comply with all the provisions of this chapter.
Section 1116. Section 61-2c-201 is amended to read:
61-2c-201
. Licensure required of individuals and entities engaged in the business of residential mortgage loans -- Mortgage officer -- Principal lending manager.(1) Unless exempt from this chapter under Section 61-2c-105, an individual or entity may not transact the business of residential mortgage loans, as defined in Section 61-2c-102, without obtaining a license under this chapter.
(2) For purposes of this chapter, an individual or entity transacts business in this state if:
(a) (i) the individual or entity engages in an act that constitutes the business of residential mortgage loans; and
(ii) (A) the act described in Subsection (2)(a)(i) is directed to or received in this state; and
(B) the real property that is the subject of the act described in Subsection (2)(a)(i) is located in this state; or
(b) a representation is made by the individual or entity that the individual or entity transacts the business of residential mortgage loans in this state.
(3) An individual who has an ownership interest in an entity required to be licensed under this chapter is not required to obtain an individual license under this chapter unless the individual transacts the business of residential mortgage loans.
(4) Unless otherwise exempted under this chapter, licensure under this chapter is required of both:
(a) the individual who directly transacts the business of residential mortgage loans; and
(b) if the individual transacts business as an employee or agent of an entity or individual, the entity or individual for whom the employee or agent transacts the business of residential mortgage loans.
(5) (a) An individual licensed under this chapter may not engage in the business of residential mortgage loans on behalf of more than one entity at the same time.
(b) This Subsection (5) does not restrict the number of:
(i) different lenders an individual or entity may use as a funding source for residential mortgage loans; or
(ii) entities in which an individual may have an ownership interest, regardless of whether the entities are:
(A) licensed under this chapter; or
(B) exempt under Section 61-2c-105.
(6) An individual licensed under this chapter may not transact the business of residential mortgage loans for the following at the same time:
(a) an entity licensed under this chapter; and
(b) an entity that is exempt from licensure under Section 61-2c-105.
(7) A mortgage officer may not receive consideration for transacting the business of residential mortgage loans from any person or entity except the principal lending manager with whom the mortgage officer is licensed.
(8) A mortgage officer shall conduct all business of residential mortgage loans:
(a) through the principal lending manager with which the individual is licensed; and
(b) in the business name under which the principal lending manager is authorized by the division to do business.
(9) (a) (i) This Subsection (9)(a) does not apply to an individual who transacts the business of residential mortgage loans as an employee or agent of another individual or entity.
(ii) If an entity that is authorized by this chapter to transact the business of residential mortgage loans transacts the business of residential mortgage loans under an assumed business name, the entity shall:
(A) register the assumed name with the division; and
(B) furnish the division proof that the assumed business name has been filed with the Division of Corporations and Commercial Code pursuant to Title 42, Chapter 2, Conducting Business Under Assumed Name.
(b) The division may charge a fee established in accordance with Section [63-38-3.2] 63J-1-303 for registering an assumed name pursuant to this Subsection (9).
(10) A licensee whose license is in inactive status may not transact the business of residential mortgage loans.
Section 1117. Section 61-2c-202 is amended to read:
61-2c-202
. Licensure procedures.(1) To apply for licensure under this chapter an applicant shall:
(a) submit to the division a licensure statement that:
(i) lists any name under which the individual or entity will transact business in this state;
(ii) lists the address of the principal business location of the applicant;
(iii) if the applicant is an entity:
(A) lists the principal lending manager of the entity; and
(B) contains the signature of the principal lending manager;
(iv) demonstrates that the applicant meets the qualifications listed in Section 61-2c-203;
(v) if the applicant is an entity, lists:
(A) all jurisdictions in which the entity is registered, licensed, or otherwise regulated in the business of residential mortgage loans; and
(B) the history of any disciplinary action or adverse administrative action taken against the entity by any regulatory agency within the ten years preceding the application; and
(vi) includes any information required by the division by rule;
(b) pay to the division:
(i) an application fee established by the division in accordance with Section [63-38-3.2] 63J-1-303; and
(ii) the reasonable expenses incurred in processing the application for licensure including the costs incurred by the division under Subsection (4); and
(c) comply with Subsection (4).
(2) (a) The division shall issue a license to an applicant if the division, with the concurrence of the commission, finds that the applicant:
(i) meets the qualifications of Section 61-2c-203; and
(ii) complies with this section.
(b) The commission may delegate to the division the authority to:
(i) review any class or category of application for initial or renewed licenses;
(ii) determine whether an applicant meets the licensing criteria in Section 61-2c-203;
(iii) conduct any necessary hearing on an application; and
(iv) approve or deny a license application without concurrence by the commission.
(c) If the commission delegates to the division the authority to approve or deny an application without concurrence by the commission and the division denies an application for licensure, the applicant who is denied licensure may petition the commission for review of the denial.
(d) An applicant who is denied licensure under this Subsection (2)(b) may seek agency review by the executive director only after the commission has reviewed the division's denial of the applicant's application.
(3) Subject to Subsection (2)(d) and in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, an applicant who is denied licensure under this chapter may submit a request for agency review to the executive director within 30 days following the issuance of the commission order denying the licensure.
(4) (a) An individual applying for a license under this chapter shall:
(i) submit a fingerprint card in a form acceptable to the division at the time the licensure statement is filed;
(ii) consent to a criminal background check by:
(A) the Utah Bureau of Criminal Identification; and
(B) the Federal Bureau of Investigation;
(iii) provide proof using methods approved by the division of having successfully completed 20 hours of approved prelicensing education required by the commission under Section 61-2c-104 before taking the examination required by Subsection (4)(a)(iv); and
(iv) provide proof using methods approved by the division of having successfully passed an examination approved by the commission under Section 61-2c-104.
(b) The division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check for each applicant and each control person of an applicant through a national criminal history system.
(c) The applicant shall pay the cost of:
(i) the fingerprinting required by this section; and
(ii) the criminal background check required by this section.
(d) (i) A license under this chapter is conditional pending completion of the criminal background check required by this Subsection (4).
(ii) If a criminal background check discloses that an applicant failed to accurately disclose a criminal history, the license shall be immediately and automatically revoked.
(iii) An individual or entity whose conditional license is revoked under Subsection (4)(d)(ii) may appeal the revocation in a hearing conducted by the commission:
(A) after the revocation; and
(B) in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(iv) The commission may delegate to the division or an administrative law judge the authority to conduct a hearing described in Subsection (4)(d)(iii).
(v) Relief from a revocation may be granted only if:
(A) the criminal history upon which the division based the revocation:
(I) did not occur; or
(II) is the criminal history of another person;
(B) (I) the revocation is based on a failure to accurately disclose a criminal history; and
(II) the applicant had a reasonable good faith belief at the time of application that there was no criminal history to be disclosed; or
(C) the division failed to follow the prescribed procedure for the revocation.
(e) If a license is revoked or a revocation is upheld after a hearing described in Subsection (4)(d)(iii), the person may not apply for a new license for a period of 12 months after the day on which the license is revoked.
(f) The funds paid by an applicant for the cost of the criminal background check shall be nonlapsing.
(g) The commission may delegate to the division the authority to make a decision on whether relief from a revocation should be granted.
Section 1118. Section 61-2c-205 is amended to read:
61-2c-205
. Term of licensure -- Renewal -- Reporting of changes.(1) (a) A license under this chapter is valid for a two-year period.
(b) Notwithstanding Subsection (1)(a), the time period of a license may be extended or shortened by as much as one year to maintain or change a renewal cycle established by rule by the division.
(2) To renew a license, no later than the date the license expires, a licensee shall:
(a) (i) file the renewal form required by the division; and
(ii) furnish the information required by Subsection 61-2c-202(1);
(b) pay a fee to the division established by the division in accordance with Section [63-38-3.2] 63J-1-303; and
(c) if the licensee is an individual and the individual's license is in active status at the time of application for renewal, submit proof using forms approved by the division of having completed during the two years prior to application the continuing education required by the commission under Section 61-2c-104.
(3) (a) A licensee under this chapter shall notify the division using the form required by the division within ten days of the date on which there is a change in:
(i) a name under which the licensee transacts the business of residential mortgage loans in this state;
(ii) (A) if the licensee is an entity, the business location of the licensee; or
(B) if the licensee is an individual, the home and business addresses of the individual;
(iii) the principal lending manager of the entity;
(iv) the entity with which an individual licensee is licensed to conduct the business of residential mortgage loans; or
(v) any other information that is defined as material by rule made by the division.
(b) Failure to notify the division of a change described in Subsection (3)(a) is separate grounds for disciplinary action against a licensee.
(4) A licensee shall notify the division by sending the division a signed statement within ten business days of:
(a) (i) a conviction of any criminal offense;
(ii) the entry of a plea in abeyance to any criminal offense; or
(iii) the potential resolution of any criminal case by:
(A) a diversion agreement; or
(B) any other agreement under which criminal charges are held in suspense for a period of time;
(b) filing a personal bankruptcy or bankruptcy of a business that transacts the business of residential mortgage loans;
(c) the suspension, revocation, surrender, cancellation, or denial of a professional license or professional registration of the licensee, whether the license or registration is issued by this state or another jurisdiction; or
(d) the entry of a cease and desist order or a temporary or permanent injunction:
(i) against the licensee by a court or licensing agency; and
(ii) based on:
(A) conduct or a practice involving the business of residential mortgage loans; or
(B) conduct involving fraud, misrepresentation, or deceit.
(5) (a) A license under this chapter expires if the licensee does not apply to renew the license on or before the expiration date of the license.
(b) Within 30 calendar days after the expiration date, a licensee whose license has expired may apply to reinstate the expired license upon:
(i) payment of a renewal fee and a late fee determined by the division under Section [63-38-3.2] 63J-1-303; and
(ii) if the licensee is an individual and is applying to reinstate a license to active status, providing proof using forms approved by the division of having completed, during the two years prior to application, the continuing education required by the commission under Section 61-2c-104.
(c) After the 30 calendar days described in Subsection (5)(b) and within six months after the expiration date, a licensee whose license has expired may apply to reinstate an expired license upon:
(i) payment of a renewal fee and a late fee determined by the division under Section [63-38-3.2] 63J-1-303;
(ii) if the licensee is an individual and is applying to reinstate a license to active status, providing proof using forms approved by the division of having completed, during the two years prior to application, the continuing education required by the commission under Section 61-2c-104; and
(iii) in addition to the continuing education required for a timely renewal, completing an additional 12 hours of continuing education approved by the commission under Section 61-2c-104.
(d) A licensee whose license has been expired for more than six months shall be relicensed as prescribed for an original application under Section 61-2c-202.
Section 1119. Section 61-2c-206 is amended to read:
61-2c-206
. Principal lending manager licenses.(1) Except as provided in Subsection (2), to qualify as a principal lending manager under this chapter, an individual shall, in addition to meeting the standards in Section 61-2c-203:
(a) submit an application on a form approved by the division;
(b) pay fees determined by the division under Section [63-38-3.2] 63J-1-303;
(c) submit proof of having successfully completed 40 hours of prelicensing education approved by the commission under Section 61-2c-104;
(d) submit proof of having successfully completed the principal lending manager examination approved by the commission under Section 61-2c-104;
(e) submit proof on forms approved by the division of three years of full-time active experience as a mortgage officer in the five years preceding the day on which the application is submitted, or its equivalent as approved by the commission; and
(f) if the individual is not licensed under this chapter at the time of application, submit to the criminal background check required by Subsection 61-2c-202(4).
(2) (a) Notwithstanding Subsection (1), an individual described in Subsection (2)(b) may qualify as a principal lending manager without:
(i) meeting the requirements of Subsection (1)(c); and
(ii) completing the portions of the principal lending manager examination described in Subsection (1)(d) that:
(A) relate to federal law; and
(B) do not relate to Utah law.
(b) An individual may qualify as a principal lending manager pursuant to Subsection (2)(a) if the individual:
(i) submits to the division an affidavit that the individual has five years of experience in the business of residential mortgage loans;
(ii) establishes that the individual's experience described in this Subsection (2)(b) was acquired:
(A) under requirements substantially equivalent to the requirements of this chapter; and
(B) in compliance with the requirements of this chapter; and
(iii) provides any other information required by the division by rule under Subsection (2)(c).
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall define the information an individual shall provide to the division pursuant to Subsection (2)(b).
(3) A principal lending manager may not engage in the business of residential mortgage loans on behalf of more than one entity at the same time.
Section 1120. Section 61-2c-207 is amended to read:
61-2c-207
. Reciprocal licensure.(1) The division may enter into a reciprocity agreement with another state and issue a reciprocal license to a licensee of that state if the division determines that the:
(a) state has substantially equivalent licensing laws;
(b) state requires a licensing examination that is substantially equivalent to the examination required by this chapter; and
(c) licensee has not had:
(i) formal charges alleging a violation of state mortgage laws filed against the licensee; or
(ii) disciplinary action or license restriction taken by the licensee's state of domicile.
(2) The division may issue a reciprocal license to a licensee of a state with which the division does not have a reciprocity agreement if the individual:
(a) submits to the division an affidavit that the individual has five years of experience in the business of residential mortgage loans;
(b) establishes that the individual's experience described in Subsection (2)(a) was under requirements substantially equivalent to the licensing requirements of this chapter; and
(c) provides any other information required by the division by rule under Subsection (3).
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall define the information an individual shall provide to the division pursuant to Subsection (2).
Section 1121. Section 61-2c-208 is amended to read:
61-2c-208
. Activation and inactivation of license.(1) (a) A licensee may request that the division place the license on inactive status by submitting an inactivation form approved by the division.
(b) The license of a mortgage officer or mortgage entity not affiliated with an active license of a principal lending manager automatically converts to inactive status on the day on which the mortgage officer or mortgage entity is not affiliated with the active license of the principal lending manager.
(c) A licensee whose license is in inactive status may not transact the business of residential mortgage loans.
(2) To activate a license that has been placed on inactive status, a licensee shall:
(a) submit an activation form:
(i) approved by the division; and
(ii) signed by the principal lending manager with whom the licensee is affiliating;
(b) pay an activation fee established by the division under Section [63-38-3.2] 63J-1-303; and
(c) if the licensee is an individual whose license was in inactive status at the time of the previous renewal, the licensee shall supply the division with proof of the successful completion of the number of hours of continuing education that the licensee would have been required to complete under Subsection 61-2c-205(2)(c) if the licensee's license had been on active status, up to a maximum of the number of hours required for two licensing periods.
Section 1122. Section 61-2c-402.1 is amended to read:
61-2c-402.1
. Adjudicative proceedings -- Review.(1) (a) Before the actions described in Section 61-2c-402 may be taken, the division shall:
(i) give notice to the individual or entity; and
(ii) commence an adjudicative proceeding.
(b) If after the adjudicative proceeding is commenced under Subsection (1)(a) the presiding officer determines that an individual or entity required to be licensed under this chapter has violated this chapter, the division may take an action described in Section 61-2c-402 by written order.
(2) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, an individual or entity against whom action is taken under this section may seek review by the executive director of the action.
(3) If an individual or entity prevails in a judicial appeal and the court finds that the state action was undertaken without substantial justification, the court may award reasonable litigation expenses to that individual or entity as provided under Title 78, Chapter 27a, Small Business Equal Access to Justice Act.
(4) (a) An order issued under this section takes effect 30 days after the service of the order unless otherwise provided in the order.
(b) If an appeal of an order issued under this section is taken by an individual or entity, the division may stay enforcement of the order in accordance with Section [63-46b-18] 63G-4-405.
(5) If ordered by the court of competent jurisdiction, the division shall promptly take an action described in Section 61-2c-402 against a license granted under this chapter.
Section 1123. Section 61-2c-403 is amended to read:
61-2c-403
. Cease and desist orders.(1) (a) The director may issue and serve by certified mail, or by personal service, on an individual or entity an order to cease and desist if:
(i) the director has reason to believe that the individual or entity has been engaged, is engaging in, or is about to engage in acts constituting a violation of this chapter; and
(ii) it appears to the director that it would be in the public interest to stop the acts.
(b) Within ten days after service of the order, the party named in the order may request an adjudicative proceeding to be held in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(c) Pending the hearing, the cease and desist order shall remain in effect.
(2) (a) After the hearing described in Subsection (1), if the director finds that the acts of the individual or entity violate this chapter, the director:
(i) shall issue an order making the cease and desist order permanent; and
(ii) may impose a civil penalty not to exceed the greater of:
(A) $2,500 for each violation; or
(B) the amount of any gain or economic benefit derived from each violation.
(b) (i) The director may file suit in the name of the division to enjoin and restrain an individual or entity on whom an order is served under this section from violating this chapter if:
(A) (I) the individual or entity did not request a hearing under Subsection (1); or
(II) a permanent cease and desist order is issued against the individual or entity following a hearing or stipulation; and
(B) (I) the individual or entity fails to cease the acts; or
(II) after discontinuing the acts, the individual or entity again commences the acts.
(ii) The suit described in Subsection (2)(b)(i) shall be filed in the district court in the county:
(A) in which the acts occurred;
(B) where the individual resides; or
(C) where the individual or entity carries on business.
(3) The cease and desist order issued under this section may not interfere with or prevent the prosecution of a remedy or action enforcement under this chapter.
(4) An individual who violates a cease and desist order issued under this section is guilty of a class A misdemeanor.
Section 1124. Section 62A-1-106 is amended to read:
62A-1-106
. Adjudicative proceedings.The department and its boards, divisions, and offices described in Section 62A-1-105 shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 1125. Section 62A-1-108.5 is amended to read:
62A-1-108.5
. Mental illness and mental retardation examinations -- Responsibilities of the department.(1) In accomplishing its duties to conduct mental illness and mental retardation examinations under Title 77, Utah Code of Criminal Procedure, the department shall proceed as outlined in this section and within appropriations authorized by the Legislature. The executive director may delegate his responsibilities under this section to one or more divisions within the department.
(2) When the department is ordered by the court to conduct a mental illness or mental retardation examination, the executive director shall:
(a) direct that the examination be performed at the Utah State Hospital; or
(b) designate at least one examiner, selected under Subsection (3), to examine the defendant in his current custody or status.
(3) The department shall establish criteria, in consultation with the Commission on Criminal and Juvenile Justice, and shall contract with persons or organizations to conduct mental illness and mental retardation examinations under Subsection (2)(b). In making this selection, the department shall follow the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(4) Nothing in this section prohibits the executive director, at the request of defense counsel or a prosecuting attorney in a criminal proceeding under Title 77, Utah Code of Criminal Procedure, and for good cause shown, from proposing a person who has not been previously selected under Subsection (3) to contract with the department to conduct the examination. In selecting that person, the criteria of the department established under Subsection (3) and the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, shall be met.
Section 1126. Section 62A-1-111 is amended to read:
62A-1-111
. Department authority.The department may, in addition to all other authority and responsibility granted to it by law:
(1) adopt rules, not inconsistent with law, as the department may consider necessary or desirable for providing social services to the people of this state;
(2) establish and manage client trust accounts in the department's institutions and community programs, at the request of the client or his legal guardian or representative, or in accordance with federal law;
(3) purchase, as authorized or required by law, services that the department is responsible to provide for legally eligible persons;
(4) conduct adjudicative proceedings for clients and providers in accordance with the procedures of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(5) establish eligibility standards for its programs, not inconsistent with state or federal law or regulations;
(6) take necessary steps, including legal action, to recover money or the monetary value of services provided to a recipient who was not eligible;
(7) set and collect fees for its services;
(8) license agencies, facilities, and programs, except as otherwise allowed, prohibited, or limited by law;
(9) acquire, manage, and dispose of any real or personal property needed or owned by the department, not inconsistent with state law;
(10) receive gifts, grants, devises, and donations; gifts, grants, devises, donations, or the proceeds thereof, may be credited to the program designated by the donor, and may be used for the purposes requested by the donor, as long as the request conforms to state and federal policy; all donated funds shall be considered private, nonlapsing funds and may be invested under guidelines established by the state treasurer;
(11) accept and employ volunteer labor or services; the department is authorized to reimburse volunteers for necessary expenses, when the department considers that reimbursement to be appropriate;
(12) carry out the responsibility assigned in the Workforce Services Plan by the State Council on Workforce Services;
(13) carry out the responsibility assigned by Section 9-4-802 with respect to coordination of services for the homeless;
(14) carry out the responsibility assigned by Section 62A-5a-105 with respect to coordination of services for students with a disability;
(15) provide training and educational opportunities for its staff;
(16) collect child support payments and any other monies due to the department;
(17) apply the provisions of Title 78, Chapter 45, Uniform Civil Liability for Support Act, to parents whose child lives out of the home in a department licensed or certified setting;
(18) establish policy and procedures in cases where the department is given custody of a minor by the juvenile court pursuant to Section 78-3a-118; any policy and procedures shall include:
(a) designation of interagency teams for each juvenile court district in the state;
(b) delineation of assessment criteria and procedures;
(c) minimum requirements, and timeframes, for the development and implementation of a collaborative service plan for each minor placed in department custody; and
(d) provisions for submittal of the plan and periodic progress reports to the court;
(19) carry out the responsibilities assigned to it by statute;
(20) examine and audit the expenditures of any public funds provided to local substance abuse authorities, local mental health authorities, local area agencies on aging, and any person, agency, or organization that contracts with or receives funds from those authorities or agencies. Those local authorities, area agencies, and any person or entity that contracts with or receives funds from those authorities or area agencies, shall provide the department with any information the department considers necessary. The department is further authorized to issue directives resulting from any examination or audit to local authorities, area agencies, and persons or entities that contract with or receive funds from those authorities with regard to any public funds. If the department determines that it is necessary to withhold funds from a local mental health authority or local substance abuse authority based on failure to comply with state or federal law, policy, or contract provisions, it may take steps necessary to ensure continuity of services. For purposes of this Subsection (20) "public funds" means the same as that term is defined in Section 62A-15-102; and
(21) pursuant to Subsection 62A-2-106(1)(d), accredit one or more agencies and persons to provide intercountry adoption services.
Section 1127. Section 62A-1-112 is amended to read:
62A-1-112
. Participation in federal programs -- Federal grants -- Authority of executive director.(1) The executive director may, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, seek federal grants, loans, or participation in federal programs.
(2) Wherever state law authorizes a board, director, division, or office of the department to accept any grant, fund, or service which is to be advanced or contributed in whole or in part by the federal government, that acceptance shall be subject to the approval or disapproval of the executive director. All applications for federal grants or other federal financial assistance for the support of any department program is subject to the approval of the executive director.
(3) If any executive or legislative provision of the federal government so requires, as a condition to participation by this state in any fund, property, or service, the executive director, with the governor's approval, shall expend whatever funds are necessary out of the moneys provided by the Legislature for use and disbursement by that department.
Section 1128. Section 62A-1-118 is amended to read:
62A-1-118
. Access to abuse and neglect information to screen employees and volunteers.(1) With respect to department employees and volunteers, the department may only access information in the Division of Child and Family Service's Management Information System created by Section 62A-4a-1003 and the Division of Aging and Adult Services database created by Section 62A-3-311.1 for the purpose of determining at the time of hire and each year thereafter whether a department employee or volunteer has an adjudication of abuse or neglect or since January 1, 1994, a substantiated finding of abuse or neglect after notice and an opportunity for a hearing consistent with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, but only if identification as a possible perpetrator of abuse or neglect is directly relevant to the employment or volunteer activities of that person.
(2) A department employee or volunteer to whom Subsection (1) applies shall submit to the department his name and other identifying information upon request.
(3) The department shall process the information to determine whether the employee or volunteer has a substantiated finding of child abuse or neglect.
(4) The department shall adopt rules defining permissible and impermissible work-related activities for a department employee or volunteer with one or more substantiated findings of abuse or neglect.
Section 1129. Section 62A-2-105 is amended to read:
62A-2-105
. Licensing board responsibilities.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the licensing board shall review and approve rules regarding:
(a) approving, denying, suspending, and revoking licenses;
(b) conditional licenses, variances from department rule, and exclusions;
(c) the protection of the basic health and safety of clients;
(d) licensing of all persons and human services programs that are required to be licensed under this chapter; and
(e) notification to providers and subproviders of rights and responsibilities including who to contact within the department when filing a complaint against a licensee or human services program, and the responsibility of the department to follow up once contacted.
(2) The licensing board shall:
(a) define information that shall be submitted to the department with an application for a license;
(b) review and approve fees, in accordance with Section [63-38-3.2] 63J-1-303, for licenses issued under this chapter;
(c) represent the community and licensees; and
(d) advise the department as requested, concerning enforcement of rules established under this chapter.
Section 1130. Section 62A-2-106 is amended to read:
62A-2-106
. Office responsibilities.(1) Subject to the requirements of federal and state law, the office shall:
(a) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish:
(i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for licensees, that shall be limited to:
(A) fire safety;
(B) food safety;
(C) sanitation;
(D) infectious disease control;
(E) safety of the:
(I) physical facility and grounds; and
(II) area and community surrounding the physical facility;
(F) transportation safety;
(G) emergency preparedness and response;
(H) the administration of medical standards and procedures, consistent with the related provisions of this title;
(I) staff and client safety and protection;
(J) the administration and maintenance of client and service records;
(K) staff qualifications and training, including standards for permitting experience to be substituted for education, unless prohibited by law;
(L) staff to client ratios; and
(M) access to firearms;
(ii) basic health and safety standards for therapeutic schools, that shall be limited to:
(A) fire safety, except that the standards are limited to those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act;
(B) food safety;
(C) sanitation;
(D) infectious disease control, except that the standards are limited to:
(I) those required by law or rule under Title 26, Utah Health Code or Title 26A, Local Health Authorities; and
(II) requiring a separate room for clients who are sick;
(E) safety of the physical facility and grounds, except that the standards are limited to those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act;
(F) transportation safety;
(G) emergency preparedness and response;
(H) access to appropriate medical care, including:
(I) subject to the requirements of law, designation of a person who is authorized to dispense medication; and
(II) storing, tracking, and securing medication;
(I) staff and client safety and protection that permits the school to provide for the direct supervision of clients at all times;
(J) the administration and maintenance of client and service records;
(K) staff qualifications and training, including standards for permitting experience to be substituted for education, unless prohibited by law;
(L) staff to client ratios; and
(M) access to firearms;
(iii) procedures and standards for permitting a licensee to:
(A) provide in the same facility and under the same conditions as children, residential treatment services to a person 18 years old or older who:
(I) begins to reside at the licensee's residential treatment facility before the person's 18th birthday;
(II) has resided at the licensee's residential treatment facility continuously since the time described in Subsection (1)(a)(iii)(A)(I);
(III) has not completed the course of treatment for which the person began residing at the licensee's residential treatment facility; and
(IV) voluntarily consents to complete the course of treatment described in Subsection (1)(a)(iii)(A)(III); or
(B) (I) provide residential treatment services to a child who is:
(Aa) 12 years old or older; and
(Bb) under the custody of the Division of Juvenile Justice Services; and
(II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I), residential treatment services to a person who is:
(Aa) at least 18 years old, but younger than 21 years old; and
(Bb) under the custody of the Division of Juvenile Justice Services;
(iv) minimum administration and financial requirements for licensees; and
(v) guidelines for variances from rules established under this Subsection (1);
(b) enforce rules approved by the licensing board;
(c) issue licenses in accordance with this chapter;
(d) if the United States Department of State executes an agreement with the office that designates the office to act as an accrediting entity in accordance with the Intercountry Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to provide intercountry adoption services pursuant to:
(i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and
(ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L. No. 106-279;
(e) make rules to implement the provisions of Subsection (1)(d);
(f) conduct surveys and inspections of licensees and facilities in accordance with Section 62A-2-118;
(g) collect licensure fees;
(h) provide necessary administrative support to the licensing board;
(i) notify licensees of the name of a person within the department to contact when filing a complaint;
(j) investigate complaints regarding any licensee or human services program;
(k) have access to all records, correspondence, and financial data required to be maintained by a licensee;
(l) have authority to interview any client, family member of a client, employee, or officer of a licensee; and
(m) have authority to deny, condition, revoke, suspend, or extend any license issued by the department under this chapter by following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a licensee to establish and comply with an emergency response plan that requires clients and staff to:
(a) immediately report to law enforcement any significant criminal activity, as defined by rule, committed:
(i) on the premises where the licensee operates its human services program;
(ii) by or against its clients; or
(iii) by or against a staff member while the staff member is on duty;
(b) immediately report to emergency medical services any medical emergency, as defined by rule:
(i) on the premises where the licensee operates its human services program;
(ii) involving its clients; or
(iii) involving a staff member while the staff member is on duty; and
(c) immediately report other emergencies that occur on the premises where the licensee operates its human services program to the appropriate emergency services agency.
Section 1131. Section 62A-2-108.2 is amended to read:
62A-2-108.2
. Licensing residential treatment programs -- Notification of local government.(1) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office shall make rules that establish categories of residential treatment licenses based on differences in the types of residential treatment programs.
(b) The categories referred to in Subsection (1)(a) may be based on differences in:
(i) services offered;
(ii) types of clients served;
(iii) risks posed to the community; or
(iv) other factors that make regulatory differences advisable.
(2) Subject to the requirements of federal and state law, and pursuant to the authority granted by Section 62A-2-106, the office shall establish and enforce rules that:
(a) relate generally to all categories of residential treatment program licenses; and
(b) relate to specific categories of residential treatment program licenses on the basis of the regulatory needs, as determined by the office, of residential treatment programs within those specific categories.
(3) Before submitting an application for a license to operate a residential treatment program, the applicant shall serve notice of its intent to operate a residential treatment program on the governing body of:
(a) the city in which the residential treatment program will be located; or
(b) if the residential treatment program will be located in the unincorporated area of a county, the county in which the residential treatment program will be located.
(4) The notice described in Subsection (3) shall include the following information relating to the residential treatment program:
(a) an accurate description of the residential treatment program;
(b) the location where the residential treatment program will be operated;
(c) the services that will be provided by the residential treatment program;
(d) the type of clients that the residential treatment program will serve;
(e) the category of license for which the residential treatment program is applying to the office;
(f) the name, telephone number, and address of a person that may be contacted to make inquiries about the residential treatment program; and
(g) any other information that the office may require by rule.
(5) When submitting an application for a license to operate a residential treatment program, the applicant shall include with the application:
(a) a copy of the notice described in Subsection (3); and
(b) proof that the applicant served the notice described in Subsection (3) on the governing body described in Subsection (3).
Section 1132. Section 62A-2-108.3 is amended to read:
62A-2-108.3
. Local government -- Certified local inspector -- Local inspection of a residential treatment facility -- Reporting violations.(1) (a) Subject to this Subsection (1) and Subsection (3), the office shall designate, or renew the designation of, a local government employee as a certified local inspector if:
(i) the governing body of a local government gives the office written notice:
(A) of the name of an employee of the local government; and
(B) requesting that the office designate the employee described in Subsection (1)(a)(i)(A) as a certified local inspector; and
(ii) the employee described in Subsection (1)(a)(i) successfully completes the training described in Subsection (1)(b).
(b) Before designating a local government employee as a certified local inspector, the office shall:
(i) provide training to the local government employee on:
(A) this chapter;
(B) the rules established under:
(I) Subsection (2); and
(II) Subsection 62A-2-106(1)(a);
(C) the Fourth Amendment to the Constitution of the United States; and
(D) other issues relating to conducting the inspections described in Subsection (4); and
(ii) conduct a criminal background check of the local government employee pursuant to the same procedures established for a criminal background check of an applicant for an initial license under Section 62A-2-120.
(c) Subject to Subsection (6), the office may not designate a person as a certified local inspector:
(i) unless the office approves the person to have direct access to children or vulnerable adults pursuant to Section 62A-2-120; or
(ii) if the office determines that, based on the conduct of the person, it is not in the public's best interest to designate the person as a certified local inspector.
(d) The office shall provide to a certified local inspector identification that:
(i) identifies the person as a certified local inspector;
(ii) contains a photograph of the certified local inspector;
(iii) states the date on which the certification of the certified local inspector expires; and
(iv) identifies the geographic location where the certified local inspector is authorized to conduct an inspection.
(e) Nothing in this section shall be construed to require a local government to employ a certified local inspector.
(2) The office shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish procedures for:
(a) complying with this section; and
(b) the conduct of inspections by a certified local inspector.
(3) For purposes of Subsection (1):
(a) the designation of a person as a certified local inspector shall expire one calendar year from the day on which the designation is made;
(b) the designation of a person as a certified local inspector may not be renewed unless Subsection (1) is complied with, including:
(i) providing a refresher course on the training described in Subsection (1)(b)(i); and
(ii) conducting a new criminal background check pursuant to Subsection (1)(b)(ii); and
(c) the office:
(i) shall revoke a person's designation as a certified local inspector if:
(A) subject to Subsection (6), the person commits an act that is grounds for refusing to designate a person as a certified local inspector;
(B) the person's local government employer requests that the designation described in this Subsection (3)(c)(i) be revoked; or
(C) the person is no longer employed by a local government, unless:
(I) the person is employed by another local government; and
(II) the governing body of the local government described in Subsection (3)(c)(i)(C)(I), requests, in writing, that the person's designation as a certified local inspector continue; and
(ii) subject to Subsection (6), may revoke a person's designation as a certified local inspector if the person violates:
(A) this section; or
(B) a rule made by the department that relates to this section.
(4) (a) Subject to Subsection (4)(b), a certified local inspector may inspect a residential treatment facility of a licensee:
(i) if the certified local inspector is an employee of a local government that is a:
(A) (I) city; and
(II) the residential treatment facility is located within the city; or
(B) (I) county; and
(II) the residential treatment facility is located within the unincorporated area of the county;
(ii) only during regular business hours;
(iii) pursuant to:
(A) this section; and
(B) the rules made by the office under this section; and
(iv) to determine whether the residential treatment facility is in compliance with the requirements of:
(A) this chapter; and
(B) the rules made pursuant to this chapter.
(b) Notwithstanding Subsection (4)(a), a certified local inspector, may not:
(i) inspect a residential treatment facility of a licensee:
(A) if the office instructs the certified local inspector to not conduct an inspection; or
(B) except in an emergency, without giving the office prior notice of the inspection; and
(ii) unless otherwise authorized by law, examine or obtain any record of a residential treatment facility, including a record relating to:
(A) a client of the residential treatment facility;
(B) an employee of the residential treatment facility; or
(C) an incident that occurs at the residential treatment facility.
(c) Within 24 hours, excluding weekends and holidays, of conducting an inspection under this Subsection (4), the inspector shall provide the office with a written report informing the office of the details of the inspection, including any violation by the licensee of:
(i) this chapter; or
(ii) the rules made pursuant to this chapter.
(5) (a) A local government employee who is a certified local inspector:
(i) may not take any action pursuant to this section without approval from the certified local inspector's local government employer;
(ii) when taking any action pursuant to this section, shall at all times be considered an employee of the certified local inspector's local government employer; and
(iii) is not an employee of the:
(A) office; or
(B) department.
(b) If a certified local inspector acts or fails to act in a way that would otherwise incur any liability to the office or the department, the certified local inspector's local government employer shall indemnify, defend, and hold harmless the office and the department for that liability.
(c) (i) A local government employer of a certified local inspector is primarily responsible for the training of the local government employer's certified local inspector.
(ii) The training described in Subsection (1)(b)(i) that is provided by the office is supplemental to the primary training responsibility of the certified local inspector's local government employer.
(d) The local government employer of a certified local inspector shall be responsible to pay the certified local inspector for all action taken by the certified local inspector under this section, including:
(i) conducting an inspection;
(ii) preparing an inspection report for the office; and
(iii) participating in training.
(6) (a) For purposes of Subsection (1), and Subsections (3)(c)(i)(A) and (3)(c)(ii), if the office determines to not designate or renew the designation of a person as a certified local inspector, the office shall notify the person and the governing body of the local government that employs the person:
(i) of the determination described in this Subsection (6)(a);
(ii) of the reasons for the determination described in this Subsection (6)(a); and
(iii) that the person or the local government, or both, may request a hearing in the department's Office of Administrative Hearings, to challenge the office's decision.
(b) A person for whom a hearing is requested under Subsection (6)(a)(iii) is not a certified local inspector until:
(i) a final decision is made that the office should designate the person as a certified local inspector; and
(ii) (A) all appeals of the determination described in Subsection (6)(a) are exhausted; or
(B) the time for an appeal described in Subsection (6)(b)(ii)(A) has expired.
(7) (a) If the office determines that a residential treatment facility has violated this chapter or the rules made pursuant to this chapter, the office shall provide written notice of the violation to the governing body of:
(i) the city that the residential treatment facility is located in; or
(ii) the county that the residential treatment facility is located in, if the residential treatment facility is located in the unincorporated area of the county.
(b) The written notice described in Subsection (7)(a):
(i) subject to Subsection (7)(b)(ii), shall include:
(A) the name of the residential treatment facility;
(B) the location of the residential treatment facility;
(C) the date and time that the violation occurred; and
(D) the provision of the statute or rule that is violated; and
(ii) may not include:
(A) the name of any person connected with the violation; or
(B) any information prohibited from disclosure by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(c) A local government may seek additional information relating to a violation described in this Subsection (7) to the extent permitted by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 1133. Section 62A-2-109 is amended to read:
62A-2-109
. License application -- Classification of information.(1) An application for a license under this chapter shall be made to the office and shall contain information that the board determines is necessary in accordance with approved rules.
(2) Information received by the office through reports and inspections shall be classified in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 1134. Section 62A-2-111 is amended to read:
62A-2-111
. Adjudicative proceedings.(1) Whenever the office has reason to believe that a licensee is in violation of this chapter or rules made under this chapter, the office may commence adjudicative proceedings to determine the legal rights of the licensee by serving notice of agency action in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) A licensee, human services program, or individual may commence adjudicative proceedings, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, regarding all office actions that determine the legal rights, duties, privileges, immunities, or other legal interests of the licensee, human services program, or persons associated with the licensee, including all office actions to grant, deny, place conditions on, revoke, suspend, withdraw, or amend an authority, right, or license under this chapter.
Section 1135. Section 62A-2-120 is amended to read:
62A-2-120
. Criminal background checks -- Direct access to children or vulnerable adults.(1) (a) Except as provided in Subsection (7), an applicant for an initial license or a license renewal under this chapter shall submit to the office the names and other identifying information, which may include fingerprints, of all persons associated with the licensee, as defined in Section 62A-2-101, with direct access to children or vulnerable adults.
(b) The Criminal Investigations and Technical Services Division of the Department of Public Safety, or the office as authorized under Section 53-10-108, shall process the information described in Subsection (1)(a) to determine whether the individual has been convicted of any crime.
(c) Except as provided in Subsection (1)(d), if an individual has not continuously lived in Utah for the five years immediately preceding the day on which the information referred to in Subsection (1)(a) is submitted to the office, the individual shall submit fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted to the FBI through the Criminal Investigations and Technical Services Division.
(d) An individual is not required to comply with Subsection (1)(c) if:
(i) the individual continuously lived in Utah for the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, except for time spent outside of the United States and its territories; and
(ii) the background check of the individual is being conducted for a purpose other than a purpose described in Subsection (1)(f).
(e) If an applicant described in Subsection (1)(a) spent time outside of the United States and its territories during the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, the office shall require the applicant to submit documentation establishing whether the applicant was convicted of a crime during the time that the applicant spent outside of the United States and its territories.
(f) Notwithstanding any other provision of this Subsection (1), an applicant described in Subsection (1)(a) shall submit fingerprints for an FBI national criminal history records check, through the Criminal Investigations and Technical Services Division, if the background check of the applicant is being conducted for the purpose of:
(i) licensing a prospective foster home; or
(ii) approving a prospective adoptive placement of a child in state custody.
(g) In addition to the other requirements of this section, if the background check of an applicant described in Subsection (1)(a) is being conducted for the purpose of licensing a prospective foster home or approving a prospective adoptive placement of a child in state custody, the office shall:
(i) check the child abuse and neglect registry in each state where each prospective foster parent or prospective adoptive parent resided in the five years immediately preceding the day on which the prospective foster parent or prospective adoptive parent applied to be a foster parent or adoptive parent, to determine whether the prospective foster parent or prospective adoptive parent is listed in the registry as having a substantiated or supported finding of child abuse or neglect; and
(ii) check the child abuse and neglect registry in each state where each adult living in the home of the prospective foster parent or prospective adoptive parent described in Subsection (1)(g)(i) resided in the five years immediately preceding the day on which the prospective foster parent or prospective adoptive parent applied to be a foster parent or adoptive parent, to determine whether the adult is listed in the registry as having a substantiated or supported finding of child abuse or neglect.
(h) The office shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement the provisions of this Subsection (1).
(2) The office shall approve a person for whom identifying information is submitted under Subsection (1) to have direct access to children or vulnerable adults in the licensee program if:
(a) (i) the person is found to have no criminal history record; or
(ii) (A) the only convictions in the person's criminal history record are misdemeanors or infractions not involving any of the offenses described in Subsection (3); and
(B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five years before the date of the search;
(b) the person is not listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;
(c) juvenile court records do not show that a court made a substantiated finding, under Section 78-3a-320, that the person committed a severe type of child abuse or neglect;
(d) the person is not listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006;
(e) the person has not pled guilty or no contest to a pending charge for any:
(i) felony;
(ii) misdemeanor listed in Subsection (3); or
(iii) infraction listed in Subsection (3); and
(f) for a person described in Subsection (1)(g), the registry check described in Subsection (1)(g) does not indicate that the person is listed in a child abuse and neglect registry of another state as having a substantiated or supported finding of child abuse or neglect.
(3) Except as provided in Subsection (8), unless at least ten years have passed since the date of conviction, the office may not approve a person to have direct access to children or vulnerable adults in the licensee's human services program if that person has been convicted of an offense, whether a felony, misdemeanor, or infraction, that is:
(a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
(b) a violation of any pornography law, including sexual exploitation of a minor;
(c) prostitution;
(d) included in:
(i) Title 76, Chapter 5, Offenses Against the Person;
(ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
(iii) Title 76, Chapter 7, Offenses Against the Family;
(e) a violation of Section 76-6-103, aggravated arson;
(f) a violation of Section 76-6-203, aggravated burglary;
(g) a violation of Section 76-6-302, aggravated robbery; or
(h) a conviction for an offense committed outside of the state that, if committed in the state, would constitute a violation of an offense described in Subsections (3)(d) through (g).
(4) (a) Except as provided in Subsection (8), if a person for whom identifying information is submitted under Subsection (1) is not approved by the office under Subsection (2) or (3) to have direct access to children or vulnerable adults in the licensee program, the office shall conduct a comprehensive review of criminal and court records and related circumstances if the reason the approval is not granted is due solely to one or more of the following:
(i) a conviction for:
(A) any felony not listed in Subsection (3);
(B) any misdemeanor or infraction, not listed in Subsection (3), within five years of the date of the search;
(C) a protective order or ex parte protective order violation under Section 76-5-108 or a similar statute in another state; or
(D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least ten years have passed since the date of conviction;
(ii) a plea of guilty or no contest to a pending:
(A) felony;
(B) misdemeanor listed in Subsection (3); or
(C) infraction listed in Subsection (3);
(iii) the person is listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;
(iv) juvenile court records show that a court made a substantiated finding, under Section 78-3a-320, that the person committed a severe type of child abuse or neglect;
(v) the person is listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006; or
(vi) the person is listed in a child abuse or neglect registry of another state as having a substantiated or supported finding of child abuse or neglect.
(b) The comprehensive review under Subsection (4)(a) shall include an examination of:
(i) the date of the offense or incident;
(ii) the nature and seriousness of the offense or incident;
(iii) the circumstances under which the offense or incident occurred;
(iv) the age of the perpetrator when the offense or incident occurred;
(v) whether the offense or incident was an isolated or repeated incident;
(vi) whether the offense or incident directly relates to abuse of a child or vulnerable adult, including:
(A) actual or threatened, nonaccidental physical or mental harm;
(B) sexual abuse;
(C) sexual exploitation; and
(D) negligent treatment;
(vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric treatment received, or additional academic or vocational schooling completed, by the person; and
(viii) any other pertinent information.
(c) At the conclusion of the comprehensive review under Subsection (4)(a), the office shall approve the person who is the subject of the review to have direct access to children or vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or vulnerable adult.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office may make rules, consistent with this chapter, defining procedures for the comprehensive review described in this Subsection (4).
(5) (a) For purposes of this Subsection (5), "directly supervised" means that the person being supervised is under the uninterrupted visual and auditory surveillance of the person doing the supervising.
(b) A licensee may not permit any person to have direct access to a child or a vulnerable adult unless, subject to Subsection (5)(c), that person is:
(i) associated with the licensee and:
(A) approved by the office to have direct access to children or vulnerable adults under this section; or
(B) (I) the office has not determined whether to approve that person to have direct access to children or vulnerable adults;
(II) the information described in Subsection (1)(a), relating to that person, is submitted to the department; and
(III) that person is directly supervised by a person associated with the licensee who is approved by the office to have direct access to children or vulnerable adults under this section;
(ii) (A) not associated with the licensee; and
(B) directly supervised by a person associated with the licensee who is approved by the office to have direct access to children or vulnerable adults under this section;
(iii) the parent or guardian of the child or vulnerable adult; or
(iv) a person approved by the parent or guardian of the child or vulnerable adult to have direct access to the child or vulnerable adult.
(c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child or a vulnerable adult if that person is prohibited by court order from having that access.
(6) (a) Within 30 days after receiving the identifying information for a person under Subsection (1), the office shall give written notice to the person and to the licensee or applicant with whom the person is associated of:
(i) the office's decision regarding its background screening clearance and findings; and
(ii) a list of any convictions found in the search.
(b) With the notice described in Subsection (6)(a), the office shall also give to the person the details of any comprehensive review conducted under Subsection (4).
(c) If the notice under Subsection (6)(a) states that the person is not approved to have direct access to children or vulnerable adults, the notice shall further advise the persons to whom the notice is given that either the person or the licensee or applicant with whom the person is associated, or both, may, under Subsection 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to challenge the office's decision.
(d) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office shall make rules, consistent with this chapter:
(i) defining procedures for the challenge of its background screening decision described in this Subsection (6); and
(ii) expediting the process for renewal of a license under the requirements of this section and other applicable sections.
(7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for an initial license, or license renewal, to operate a substance abuse program that provides services to adults only.
(8) (a) Notwithstanding Subsections (2) through (4), the office may not approve or license a person as a prospective foster parent or a prospective adoptive parent if the person has been convicted of:
(i) a felony involving conduct that constitutes any of the following:
(A) child abuse, as described in Section 76-5-109;
(B) commission of domestic violence in the presence of a child, as described in Section 76-5-109.1;
(C) abuse or neglect of a disabled child, as described in Section 76-5-110;
(D) endangerment of a child, as described in Section 76-5-112.5;
(E) aggravated murder, as described in Section 76-5-202;
(F) murder, as described in Section 76-5-203;
(G) manslaughter, as described in Section 76-5-205;
(H) child abuse homicide, as described in Section 76-5-208;
(I) homicide by assault, as described in Section 76-5-209;
(J) kidnapping, as described in Section 76-5-301;
(K) child kidnapping, as described in Section 76-5-301.1;
(L) aggravated kidnapping, as described in Section 76-5-302;
(M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
(N) an offense described in Title 76, Chapter 5a, Sexual Exploitation of Children;
(O) aggravated arson, as described in Section 76-6-103;
(P) aggravated burglary, as described in Section 76-6-203;
(Q) aggravated robbery, as described in Section 76-6-302; or
(R) domestic violence, as described in Section 77-36-1; or
(ii) an offense committed outside the state that, if committed in the state, would constitute a violation of an offense described in Subsection (8)(a)(i).
(b) Notwithstanding Subsections (2) through (4), the office may not approve or license a person as a prospective foster parent or a prospective adoptive parent if, within the five years immediately preceding the day on which the person would otherwise be approved or licensed, the person has been convicted of a felony involving conduct that constitutes any of the following:
(i) aggravated assault, as described in Section 76-5-103;
(ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
(iii) mayhem, as described in Section 76-5-105;
(iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
(v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
(vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances Act;
(vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance Precursor Act; or
(viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
Section 1136. Section 62A-2-121 is amended to read:
62A-2-121
. Access to abuse and neglect information.(1) For purposes of this section:
(a) "Direct service worker" is as defined in Section 62A-5-101.
(b) "Personal care attendant" is as defined in Section 62A-3-101.
(2) With respect to a licensee, a certified local inspector applicant, a direct service worker, or a personal care attendant, the department may access only the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006 and juvenile court records under Subsection 78-3a-320(6), for the purpose of:
(a) (i) determining whether a person associated with a licensee, with direct access to children:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2); and
(ii) informing a licensee that a person associated with the licensee:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2);
(b) (i) determining whether a certified local inspector applicant:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2); and
(ii) informing a local government that a certified local inspector applicant:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2);
(c) (i) determining whether a direct service worker:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2); and
(ii) informing a direct service worker or the direct service worker's employer that the direct service worker:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2); or
(d) (i) determining whether a personal care attendant:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2); and
(ii) informing a person described in Subsections 62A-3-101(9)(a)(i) through (iv) that a personal care attendant:
(A) is listed in the Licensing Information System; or
(B) has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320(1) and (2).
(3) Notwithstanding Subsection (2), the department may access the Division of Child and Family Service's Management Information System under Section 62A-4a-1003:
(a) for the purpose of licensing and monitoring foster parents; and
(b) for the purposes described in Subsection 62A-4a-1003(1)(d).
(4) After receiving identifying information for a person under Subsection 62A-2-120(1), the department shall process the information for the purposes described in Subsection (2).
(5) The department shall adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under which a person may have direct access or provide services to children when:
(a) the person is listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006; or
(b) juvenile court records show that a court made a substantiated finding under Section 78-3a-320, that the person committed a severe type of child abuse or neglect.
Section 1137. Section 62A-2-122 is amended to read:
62A-2-122
. Access to vulnerable adult abuse and neglect information.(1) For purposes of this section:
(a) "direct service worker" is as defined in Section 62A-5-101; and
(b) "personal care attendant" is as defined in Section 62A-3-101.
(2) With respect to a licensee, a certified local inspector applicant, a direct service worker, or a personal care attendant, the department may access the data base created by Section 62A-3-311.1 for the purpose of:
(a) (i) determining whether a person associated with a licensee, with direct access to vulnerable adults, has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; and
(ii) informing a licensee that a person associated with the licensee has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation;
(b) (i) determining whether a certified local inspector applicant has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; and
(ii) informing a local government that a certified local inspector applicant has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; or
(c) (i) determining whether a direct service worker has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; and
(ii) informing a direct service worker or the direct service worker's employer that the direct service worker has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; or
(d) (i) determining whether a personal care attendant has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation; and
(ii) informing a person described in Subsections 62A-3-101(9)(a)(i) through (iv) that a personal care attendant has a substantiated finding of:
(A) abuse;
(B) neglect; or
(C) exploitation;
(3) After receiving identifying information for a person under Subsection 62A-2-120(1), the department shall process the information for the purposes described in Subsection (2).
(4) The department shall adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with this chapter and consistent with Section 62A-3-311.1, defining the circumstances under which a person may have direct access or provide services to vulnerable adults when the person is listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1 as having a substantiated finding of abuse, neglect, or exploitation.
Section 1138. Section 62A-3-104 is amended to read:
62A-3-104
. Authority of division.(1) The division is the sole state agency, as defined by the Older Americans Act of 1965, 42 U.S.C. 3001 et seq., to:
(a) serve as an effective and visible advocate for the aging and adult population of this state;
(b) develop and administer a state plan under the policy direction of the board; and
(c) take primary responsibility for state activities relating to provisions of the Older Americans Act of 1965, as amended.
(2) (a) The division has authority to designate:
(i) planning and service areas for the state; and
(ii) an area agency on aging within each planning and service area to design and implement a comprehensive and coordinated system of services and programs for the aged within appropriations from the Legislature.
(b) Designation as an area agency on aging may be withdrawn:
(i) upon request of the area agency on aging; or
(ii) upon noncompliance with the provisions of the:
(A) Older Americans Act of 1965, 42 U.S.C. 3001 et seq.;
(B) federal regulations enacted under the Older Americans Act of 1965, 42 U.S.C. 3001 et seq.;
(C) provisions of this chapter; or
(D) rules, policies, or procedures established by the division.
(3) (a) The division has the authority to designate:
(i) planning and service areas for the state; and
(ii) subject to Subsection (3)(b), an area agency on high risk adults within each planning and service area to design and implement a comprehensive and coordinated system of case management and programs for high risk adults within appropriations from the Legislature.
(b) For purposes of Subsection (3)(a)(ii), before October 1, 1998, the division shall designate as the area agency on high risk adults in a planning and service area:
(i) the area agency on aging that operates within the same geographic area if that agency requests, before July 1, 1998, to expand that agency's current contract with the division to include the responsibility of:
(A) being the area agency on high risk adults; or
(B) operating the area agency on high risk adults:
(I) through joint cooperation with one or more existing area agencies on aging; and
(II) without reducing geographical coverage in any service area; or
(ii) a public or private nonprofit agency or office if the area agency on aging that operates within the same geographic area has not made a request in accordance with Subsection (3)(b)(i).
(c) (i) Area agencies on high risk adults shall be in operation before July 1, 1999.
(ii) The division's efforts to establish area agencies on high risk adults shall start with counties with a population of more than 150,000 people.
(d) Designation as an area agency on high risk adults may be withdrawn:
(i) upon request by the area agency; or
(ii) upon noncompliance with:
(A) state law;
(B) federal law; or
(C) rules, policies, or procedures established by the division.
(4) (a) The division may, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures:
(i) seek federal grants, loans, or participation in federal programs; and
(ii) receive and distribute state and federal funds for the division's programs and services to the aging and adult populations of the state.
(b) The division may not disburse public funds to a personal care attendant as payment for personal services rendered to an aged person or high risk adult, except as provided in Section 62A-3-104.3.
(5) The division has authority to establish, either directly or by contract, programs of advocacy, monitoring, evaluation, technical assistance, and public education to enhance the quality of life for aging and adult citizens of the state.
(6) In accordance with the rules of the division and [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, the division may contract with:
(a) the governing body of an area agency to provide a comprehensive program of services; or
(b) public and private entities for special services.
(7) The division has authority to provide for collection, compilation, and dissemination of information, statistics, and reports relating to issues facing aging and adult citizens.
(8) The division has authority to prepare and submit reports regarding the operation and administration of the division to the department, the Legislature, and the governor, as requested.
(9) The division shall:
(a) implement and enforce policies established by the board governing all aspects of the division's programs for aging and adult persons in the state;
(b) in order to ensure compliance with all applicable state and federal statutes, policies, and procedures, monitor and evaluate programs provided by or under contract with:
(i) the division;
(ii) area agencies; and
(iii) an entity that receives funds from an area agency;
(c) examine expenditures of public funds;
(d) withhold funds from programs based on contract noncompliance;
(e) review and approve plans of area agencies in order to ensure:
(i) compliance with division policies; and
(ii) a statewide comprehensive program;
(f) in order to further programs for aging and adult persons and prevent duplication of services, promote and establish cooperative relationships with:
(i) state and federal agencies;
(ii) social and health agencies;
(iii) education and research organizations; and
(iv) other related groups;
(g) advocate for the aging and adult populations;
(h) promote and conduct research on the problems and needs of aging and adult persons;
(i) submit recommendations for changes in policies, programs, and funding to the:
(i) governor; and
(ii) Legislature; and
(j) (i) accept contributions to and administer the funds contained in the "Out and About" Homebound Transportation Assistance Fund created in Section 62A-3-110; and
(ii) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to facilitate the administration of the "Out and About" Homebound Transportation Assistance Fund in accordance with Section 62A-3-110.
Section 1139. Section 62A-3-104.1 is amended to read:
62A-3-104.1
. Powers and duties of area agencies.(1) An area agency that provides services to an aged person, or a high risk adult shall within the area agency's respective jurisdiction:
(a) advocate by monitoring, evaluating, and providing input on all policies, programs, hearings, and levies that affect a person described in this Subsection (1);
(b) design and implement a comprehensive and coordinated system of services within a designated planning and service area;
(c) conduct periodic reviews and evaluations of needs and services;
(d) prepare and submit to the division plans for funding and service delivery for services within the designated planning and service area;
(e) establish, either directly or by contract, programs licensed under Chapter 2, Licensure of Programs and Facilities;
(f) (i) appoint an area director;
(ii) prescribe the area director's duties; and
(iii) provide adequate and qualified staff to carry out the area plan described in Subsection (1)(d);
(g) establish rules not contrary to policies of the board and rules of the division, regulating local services and facilities;
(h) operate other services and programs funded by sources other than those administered by the division;
(i) establish mechanisms to provide direct citizen input, including an area agency advisory council with a majority of members who are eligible for services from the area agency;
(j) establish fee schedules; and
(k) comply with the requirements and procedures of:
(i) Title 11, Chapter 13, Interlocal Cooperation Act; and
(ii) Title 51, Chapter 2a, Accounting Reports from Political Subdivisions, Interlocal Organizations, and Other Local Entities Act.
(2) Before disbursing any public funds, an area agency shall require that all entities receiving any public funds agree in writing that:
(a) the division may examine the entity's program and financial records; and
(b) the auditor of the local area agency may examine and audit the entity's program and financial records, if requested by the local area agency.
(3) An area agency on aging may not disburse public funds to a personal care attendant as payment for personal services rendered to an aged person or high risk adult, except as provided in Section 62A-3-104.3.
(4) (a) For the purpose of providing services pursuant to this part, a local area agency may receive:
(i) property;
(ii) grants;
(iii) gifts;
(iv) supplies;
(v) materials;
(vi) any benefit derived from the items described in Subsections (4)(a)(i) through (v); and
(vii) contributions.
(b) If a gift is conditioned upon the gift's use for a specified service or program, the gift shall be used for the specific service or program.
(5) (a) Area agencies shall award all public funds in compliance with:
(i) the requirements of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; or
(ii) a county procurement ordinance that requires procurement procedures similar to those described in Subsection (5)(a)(i).
(b) (i) If all initial bids on a project are rejected, the area agency shall publish a new invitation to bid.
(ii) If no satisfactory bid is received by the area agency described in Subsection (5)(b)(i), when the bids received from the second invitation are opened the area agency may execute a contract without requiring competitive bidding.
(c) (i) An area agency need not comply with the procurement provisions of this section when it disburses public funds to another governmental entity.
(ii) For purposes of this Subsection (5)(c), "governmental entity" means any political subdivision or institution of higher education of the state.
(d) (i) Contracts awarded by an area agency shall be for a:
(A) fixed amount; and
(B) limited period.
(ii) The contracts described in Subsection (5)(d)(i) may be modified due to changes in available funding for the same contract purpose without competition.
(6) Local area agencies shall comply with:
(a) applicable state and federal:
(i) statutes;
(ii) policies; and
(iii) audit requirements; and
(b) directives resulting from an audit described in Subsection (6)(a)(iii).
Section 1140. Section 62A-3-106.5 is amended to read:
62A-3-106.5
. Agency responsible to investigate and provide services.(1) For purposes of this section, "responsible agency" means the agency responsible to investigate or provide services in a particular case under the rules established under Subsection (2)(a).
(2) In order to avoid duplication in responding to a report of alleged abuse, neglect, or exploitation of a vulnerable adult who resides in a long-term care facility, the division shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that establish procedures to:
(a) determine whether Adult Protective Services or the Long-Term Care Ombudsman Program will be responsible to investigate or provide services in a particular case; and
(b) determine whether, and under what circumstances, the agency described in Subsection (2)(a) that is not the responsible agency will provide assistance to the responsible agency in a particular case.
(3) Notwithstanding Subsection (2), or the rules made pursuant to Subsection (2), Adult Protective Services shall be the agency within the division that is responsible for receiving all reports of alleged abuse, neglect, or exploitation of a vulnerable adult as provided in Section 62A-3-305.
Section 1141. Section 62A-3-109 is amended to read:
62A-3-109
. Adjudicative proceedings.The board shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1142. Section 62A-3-205 is amended to read:
62A-3-205
. Procedures -- Adjudicative proceedings.The long-term care ombudsman shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1143. Section 62A-3-311 is amended to read:
62A-3-311
. Requests for information.Requests for information contained in an adult protection case file shall be made in writing to Adult Protective Services. Requests should indicate the specific information requested and the reason for the request. Notwithstanding the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, nothing may be released in response to a request except as provided in Section 62A-3-312.
Section 1144. Section 62A-3-311.1 is amended to read:
62A-3-311.1
. Statewide data base -- Restricted use and access.(1) The division shall maintain a data base for reports of vulnerable adult abuse, neglect, or exploitation made pursuant to this part.
(2) The data base shall include:
(a) the names and identifying data of the abused, neglected, or exploited adult and the reported abuser;
(b) information regarding whether or not the abuse, neglect, or exploitation was substantiated or unsubstantiated; and
(c) any other information that may be helpful in furthering the purposes of this part, as determined by the division, subject to the restrictions of Section 62A-3-306.
(3) Information obtained from the data base may be used only for:
(a) compiling statistical summaries that do not include names or other identifying data;
(b) granting or denying licenses or other grants of privilege by the department where identification as a possible adult abuser may be relevant to the privilege in question, in accordance with Subsection (4); and
(c) licensing purposes by the Bureau of Licensing within the Department of Health, as provided for in Section 26-21-9.5, in determining whether a person associated with a covered health care facility who provides direct care to vulnerable adults has a substantiated finding of vulnerable adult abuse, neglect, or exploitation if identification as a possible perpetrator is relevant to the employment activities of that person.
(4) (a) A license or privilege may not be denied under Subsection (3) solely on the basis of information in the data base.
(b) Before a license or privilege may be denied under Subsection (3), the department taking the action shall conduct a review and provide the person making application for the license or privilege with notice and an opportunity to be heard in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 1145. Section 62A-3-312 is amended to read:
62A-3-312
. Access to information in data base.The records and information contained in the data base and the adult protection case file are protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. However, notwithstanding the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, information and records contained in the data base and in the adult protection case file are not open to public inspection. Pertinent parts of the data base and the adult protection case file shall be made available to law enforcement agencies, the attorney general's office, and county or district attorney's offices and may be made available, at the discretion of the division, to:
(1) subjects of a report as follows:
(a) a vulnerable adult named in a report as a victim of abuse, neglect, or exploitation, or that adult's attorney or legal guardian; and
(b) a person identified in a report as having abused, neglected, or exploited a vulnerable adult, or that person's attorney; and
(2) persons involved in an evaluation or assessment of the vulnerable adult as follows:
(a) an employee of the department who is responsible for the evaluation or assessment of an adult protection case file;
(b) a multidisciplinary team approved by the division to assist Adult Protective Services in the evaluation, assessment, and disposition of a vulnerable adult case;
(c) an authorized person or agency providing services to or responsible for the care, treatment, assessment, or supervision of a vulnerable adult named in the report as a victim, when in the opinion of the division that information will assist in the protection of or provide other benefits to the victim;
(d) a licensing authority for a facility, program, or person providing care to a victim named in a report;
(e) the person or entity that reported the abuse, neglect, or exploitation, as considered necessary on an individual case basis by the division; and
(f) legally authorized protection and advocacy agencies when they represent a victim or have been requested by the division to assist on a case.
Section 1146. Section 62A-4a-102 is amended to read:
62A-4a-102
. Board of Child and Family Services.(1) (a) The Board of Child and Family Services, created in accordance with this section and with Sections 62A-1-105 and 62A-1-107, is responsible for establishing by rule, under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the policy of the division in accordance with the requirements of this chapter and Title 78, Chapter 3a, Juvenile Court Act of 1996, regarding abuse, neglect, and dependency proceedings, and domestic violence services. The board is responsible to see that the legislative purposes for the division are carried out.
(b) (i) The governor shall appoint, with the consent of the Senate, 12 members to the Board of Child and Family Services.
(ii) Except as required by Subsection (1)(b)(iii), as terms of current board members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(iii) Notwithstanding the requirements of Subsection (1)(b)(ii), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(c) The board shall include:
(i) two members who are or have been consumers;
(ii) two members who are actively involved in children's issues specifically related to abuse and neglect;
(iii) a licensed foster parent;
(iv) a recognized expert in the social, developmental, and mental health needs of children;
(v) a physician licensed to practice medicine in this state who is:
(A) a board certified pediatrician; and
(B) an expert in child abuse and neglect;
(vi) a representative of private residential treatment facilities; and
(vii) an adult relative of a child who is or has been in the foster care system.
(d) Seven members of the board are necessary to constitute a quorum at any meeting.
(e) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(2) (a) A member shall receive no compensation or benefits for the member's services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) A member may decline to receive per diem and expenses for the member's service.
(3) The board shall:
(a) approve fee schedules for programs within the division;
(b) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establish, by rule, policies to ensure that private citizens, consumers, foster parents, private contract providers, allied state and local agencies, and others are provided with an opportunity to comment and provide input regarding any new policy or proposed revision of an existing policy; and
(c) provide a mechanism for:
(i) systematic and regular review of existing policy; and
(ii) consideration of policy changes proposed by the persons and agencies described in Subsection (3)(b).
(4) (a) The board shall establish policies for the determination of eligibility for services offered by the division in accordance with this chapter.
(b) The division may, by rule, establish eligibility standards for consumers.
(5) The board shall adopt and maintain rules and policies regarding placement for adoption or foster care that are consistent with, and no more restrictive than, applicable statutory provisions.
Section 1147. Section 62A-4a-112 is amended to read:
62A-4a-112
. Request to examine family services payment.(1) An individual who is a taxpayer and resident of this state and who desires to examine a payment for services offered by the division in accordance with this chapter, shall sign a statement using a form prescribed by the division. That statement shall include the assertion that the individual is a taxpayer and a resident, and shall include a commitment that any information obtained will not be used for commercial or political purposes. No partial or complete list of names, addresses, or amounts of payment may be made by any individual under this subsection, and none of that information may be removed from the offices of the division.
(2) The board shall, after due consideration of the public interest, define the nature of confidential information to be safeguarded by the division and shall establish policies and rules to govern the custody and disclosure of confidential information, as well as to provide access to information regarding payments for services offered by the division.
(3) This section does not prohibit the division or its agents, or individuals, commissions, or agencies duly authorized for the purpose, from making special studies or from issuing or publishing statistical material and reports of a general character. This section does not prohibit the division or its representatives or employees from conveying or providing to local, state, or federal governmental agencies written information that would affect an individual's eligibility or ineligibility for financial service, or other beneficial programs offered by that governmental agency. Access to the division's program plans, policies, and records, as well as consumer records and data, is governed by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(4) This section does not apply to a board member while acting in his official capacity as a board member.
(5) Violation of this section is a class B misdemeanor.
Section 1148. Section 62A-4a-115 is amended to read:
62A-4a-115
. Administrative proceedings.The department, board, and division shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 1149. Section 62A-4a-119 is amended to read:
62A-4a-119
. Division required to produce "family impact statement" with regard to policies and rules.Beginning May 1, 2000, whenever the division establishes a rule, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, or the board establishes any policy in accordance with its statutory authority, those processes shall include an assessment of the impact of that rule or policy on families. Those assessments shall determine the impact of the rule or policy on the authority of parents to oversee the care, supervision, upbringing, and education of children in the parents' custody. The division shall publish a family impact statement describing those assessments and determinations, within 90 days of the establishment of each rule or policy.
Section 1150. Section 62A-4a-120 is amended to read:
62A-4a-120
. Accommodation of moral and religious beliefs and culture.(1) The division shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and establish procedures to accommodate the moral and religious beliefs, and culture, of the minors and families it serves, including:
(a) the immediate family and other relatives of a minor in any type of custody or otherwise under the jurisdiction of the court;
(b) foster and other out-of-home placement families; and
(c) adoptive families.
(2) The accommodation under Subsection (1) applies to placements, treatment plans, services, and other activities of the division.
Section 1151. Section 62A-4a-206 is amended to read:
62A-4a-206
. Process for removal of a child from foster family -- Procedural due process.(1) (a) The Legislature finds that, except with regard to a child's natural parent or legal guardian, a foster family has a very limited but recognized interest in its familial relationship with a foster child who has been in the care and custody of that family. In making determinations regarding removal of a child from a foster home, the division may not dismiss the foster family as a mere collection of unrelated individuals.
(b) The Legislature finds that children in the temporary custody and custody of the division are experiencing multiple changes in foster care placements with little or no documentation, and that numerous studies of child growth and development emphasize the importance of stability in foster care living arrangements.
(c) For the reasons described in Subsections (1)(a) and (b), the division shall provide procedural due process for a foster family prior to removal of a foster child from their home, regardless of the length of time the child has been in that home, unless removal is for the purpose of:
(i) returning the child to the child's natural parent or legal guardian;
(ii) immediately placing the child in an approved adoptive home;
(iii) placing the child with a relative, as defined in Subsection 78-3a-307(5)(d), who obtained custody or asserted an interest in the child within the preference period described in Subsection 78-3a-307(8); or
(iv) placing an Indian child in accordance with preplacement preferences and other requirements described in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915.
(2) (a) The division shall maintain and utilize due process procedures for removal of a foster child from a foster home, in accordance with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Those procedures shall include requirements for:
(i) personal communication with and explanation to foster parents prior to removal of the child; and
(ii) an opportunity for foster parents to present their information and concerns to the division and to request a review by a third party neutral fact finder prior to removal of the child.
(c) If the division determines that there is a reasonable basis to believe that the child is in danger or that there is a substantial threat of danger to the health or welfare of the child, it shall place the child in emergency foster care during the pendency of the procedures described in this subsection, instead of making another foster care placement.
(3) If the division removes a child from a foster home based upon the child's statement alone, the division shall initiate and expedite the processes described in Subsection (2). The division may take no formal action with regard to that foster parent's license until after those processes, in addition to any other procedure or hearing required by law, have been completed.
(4) When a complaint is made to the division by a foster child against a foster parent, the division shall, within 30 business days, provide the foster parent with information regarding the specific nature of the complaint, the time and place of the alleged incident, and who was alleged to have been involved.
(5) Whenever the division places a child in a foster home, it shall provide the foster parents with:
(a) notification of the requirements of this section;
(b) a written description of the procedures enacted by the division pursuant to Subsection (2) and how to access those processes; and
(c) written notification of the foster parents' ability to petition the juvenile court directly for review of a decision to remove a foster child who has been in their custody for 12 months or longer, in accordance with the limitations and requirements of Section 78-3a-315.
(6) The requirements of this section do not apply to the removal of a child based on a foster parent's request for that removal.
Section 1152. Section 62A-4a-207 is amended to read:
62A-4a-207
. Legislative Oversight Panel -- Responsibilities.(1) (a) There is created the Child Welfare Legislative Oversight Panel composed of the following members:
(i) two members of the Senate, one from the majority party and one from the minority party, appointed by the president of the Senate; and
(ii) three members of the House of Representatives, two from the majority party and one from the minority party, appointed by the speaker of the House of Representatives.
(b) Members of the panel shall serve for two-year terms, or until their successors are appointed.
(c) A vacancy exists whenever a member ceases to be a member of the Legislature, or when a member resigns from the panel. Vacancies shall be filled by the appointing authority, and the replacement shall fill the unexpired term.
(2) The president of the Senate shall designate one of the senators appointed to the panel under Subsection (1) as the Senate chair of the panel. The speaker of the House of Representatives shall designate one of the representatives appointed to the panel under Subsection (1) as the House chair of the panel.
(3) The panel shall follow the interim committee rules established by the Legislature.
(4) The panel shall:
(a) examine and observe the process and execution of laws governing the child welfare system by the executive branch and the judicial branch;
(b) upon request, receive testimony from the public, the juvenile court, and from all state agencies involved with the child welfare system including, but not limited to, the division, other offices and agencies within the department, the attorney general's office, the Office of the Guardian Ad Litem Director, and school districts;
(c) before October 1, 2002, and before October 1 of each year thereafter receive reports from the division, the attorney general, and the judicial branch identifying the cases not in compliance with the time limits established in Section 78-3a-308, regarding pretrial and adjudication hearings, Section 78-3a-311, regarding dispositional hearings and reunification services, and Section 78-3a-312, regarding permanency hearings and petitions for termination, and the reasons for the noncompliance;
(d) receive recommendations from, and make recommendations to the governor, the Legislature, the attorney general, the division, the Office of the Guardian Ad Litem Director, the juvenile court, and the public;
(e) (i) receive reports from the executive branch and the judicial branch on budgetary issues impacting the child welfare system; and
(ii) recommend, as it considers advisable, budgetary proposals to the Health and Human Services Joint Appropriations Subcommittee, the Executive Offices and Criminal Justice Appropriations Subcommittee, and the Executive Appropriations Committee, which recommendation should be made before December 1 of each year;
(f) study and recommend proposed changes to laws governing the child welfare system;
(g) study actions the state can take to preserve, unify, and strengthen the child's family ties whenever possible in the child's best interest, including recognizing the constitutional rights and claims of parents whenever those family ties are severed or infringed;
(h) perform such other duties related to the oversight of the child welfare system as the panel considers appropriate; and
(i) annually report its findings and recommendations to the president of the Senate, the speaker of the House of Representatives, the Health and Human Services Interim Committee, and the Judiciary Interim Committee.
(5) (a) The panel has authority to review and discuss individual cases.
(b) When an individual case is discussed, the panel's meeting may be closed pursuant to Title 52, Chapter 4, Open and Public Meetings Act.
(c) When discussing an individual case, the panel shall make reasonable efforts to identify and consider the concerns of all parties to the case.
(6) (a) The panel has authority to make recommendations to the Legislature, the governor, the Board of Juvenile Court Judges, the division, and any other statutorily created entity related to the policies and procedures of the child welfare system. The panel does not have authority to make recommendations to the court, the division, or any other public or private entity regarding the disposition of any individual case.
(b) The panel may hold public hearings, as it considers advisable, in various locations within the state in order to afford all interested persons an opportunity to appear and present their views regarding the child welfare system in this state.
(7) (a) All records of the panel regarding individual cases shall be classified private, and may be disclosed only in accordance with federal law and the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) The panel shall have access to all of the division's records, including those regarding individual cases. In accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access Management Act, all documents and information received by the panel shall maintain the same classification that was designated by the division.
(8) In order to accomplish its oversight functions, the panel has:
(a) all powers granted to legislative interim committees in Section 36-12-11; and
(b) legislative subpoena powers under Title 36, Chapter 14, Legislative Subpoena Powers.
(9) Members of the panel shall receive salary and expenses in accordance with Section 36-2-2.
(10) (a) The Office of Legislative Research and General Counsel shall provide staff support to the panel.
(b) The panel is authorized to employ additional professional assistance and other staff members as it considers necessary and appropriate.
Section 1153. Section 62A-4a-208 is amended to read:
62A-4a-208
. Child protection ombudsman -- Responsibility -- Authority.(1) As used in this section:
(a) "Complainant" means a person who initiates a complaint with the ombudsman.
(b) "Ombudsman" means the child protection ombudsman appointed pursuant to this section.
(2) (a) There is created within the department the position of child protection ombudsman. The ombudsman shall be appointed by and serve at the pleasure of the executive director.
(b) The ombudsman shall be:
(i) an individual of recognized executive and administrative capacity;
(ii) selected solely with regard to qualifications and fitness to discharge the duties of ombudsman; and
(iii) have experience in child welfare, and in state laws and policies governing abused, neglected, and dependent children.
(c) The ombudsman shall devote full time to the duties of office.
(3) (a) Except as provided in Subsection (b), the ombudsman shall, upon receipt of a complaint from any person, investigate whether an act or omission of the division with respect to a particular child:
(i) is contrary to statute, rule, or policy;
(ii) places a child's health or safety at risk;
(iii) is made without an adequate statement of reason; or
(iv) is based on irrelevant, immaterial, or erroneous grounds.
(b) The ombudsman may decline to investigate any complaint. If the ombudsman declines to investigate a complaint or continue an investigation, the ombudsman shall notify the complainant and the division of the decision and of the reasons for that decision.
(c) The ombudsman may conduct an investigation on his own initiative.
(4) The ombudsman shall:
(a) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules that govern the following:
(i) receiving and processing complaints;
(ii) notifying complainants and the division regarding a decision to investigate or to decline to investigate a complaint;
(iii) prioritizing workload;
(iv) maximum time within which investigations shall be completed;
(v) conducting investigations;
(vi) notifying complainants and the division regarding the results of investigations; and
(vii) making recommendations based on the findings and results of recommendations;
(b) report findings and recommendations in writing to the complainant and the division, in accordance with the provisions of this section;
(c) within appropriations from the Legislature, employ staff as may be necessary to carry out the ombudsman's duties under this part;
(d) provide information regarding the role, duties, and functions of the ombudsman to public agencies, private entities, and individuals;
(e) annually report to the:
(i) Child Welfare Legislative Oversight Panel;
(ii) governor;
(iii) Board of Child and Family Services;
(iv) executive director of the department; and
(v) director of the division; and
(f) as appropriate, make recommendations to the division regarding individual cases, and the rules, policies, and operations of the division.
(5) (a) Upon rendering a decision to investigate a complaint, the ombudsman shall notify the complainant and the division of that decision.
(b) The ombudsman may advise a complainant to pursue all administrative remedies or channels of complaint before pursuing a complaint with the ombudsman. Subsequent to processing a complaint, the ombudsman may conduct further investigations upon the request of the complainant or upon the ombudsman's own initiative. Nothing in this subsection precludes a complainant from making a complaint directly to the ombudsman before pursuing an administrative remedy.
(c) If the ombudsman finds that an individual's act or omission violates state or federal criminal law, the ombudsman shall immediately report that finding to the appropriate county or district attorney or to the attorney general.
(d) The ombudsman shall immediately notify the division if the ombudsman finds that a child needs protective custody, as that term is defined in Section 78-3a-103.
(e) The ombudsman shall immediately comply with Part 4, Child Abuse or Neglect Reporting Requirements.
(6) (a) All records of the ombudsman regarding individual cases shall be classified in accordance with federal law and the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. The ombudsman may make public a report prepared pursuant to this section in accordance with the provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) The ombudsman shall have access to all of the department's written and electronic records and databases, including those regarding individual cases. In accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, all documents and information received by the ombudsman shall maintain the same classification that was designated by the department.
(7) (a) The ombudsman shall prepare a written report of the findings and recommendations, if any, of each investigation.
(b) The ombudsman shall make recommendations to the division if the ombudsman finds that:
(i) a matter should be further considered by the division;
(ii) an administrative act should be addressed, modified, or canceled;
(iii) action should be taken by the division with regard to one of its employees; or
(iv) any other action should be taken by the division.
Section 1154. Section 62A-4a-303 is amended to read:
62A-4a-303
. Director's responsibility.The director, under the direction of the board, shall:
(1) contract with public or private nonprofit organizations, agencies, schools, or with qualified individuals to establish voluntary community-based educational and service programs designed to reduce the occurrence or recurrence of child abuse and neglect;
(2) facilitate the exchange of information between and among groups concerned with families and children;
(3) consult with appropriate state agencies, commissions, and boards to help determine the probable effectiveness, fiscal soundness, and need for proposed education and service programs for the prevention and treatment of child abuse and neglect;
(4) develop policies to determine whether programs will be discontinued or will receive continuous funding;
(5) establish flexible fees and fee schedules based on the recipient's ability to pay for part or all of the costs of service received; and
(6) adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to carry out the purposes of this part.
Section 1155. Section 62A-4a-304 is amended to read:
62A-4a-304
. Contracts for services.(1) (a) Contracts for services to prevent child abuse and neglect shall be awarded on the basis of probability of success, based in part on sound research data.
(b) Each contract entered into by the director under Section 62A-4a-303 shall contain a provision for the evaluation of services provided under the contract.
(2) Contract funds awarded for the treatment of victims of physical or sexual abuse are not a collateral source as described in Section [63-25a-402] 63M-7-502.
Section 1156. Section 62A-4a-410 is amended to read:
62A-4a-410
. Immunity from liability.(1) Any person, official, or institution participating in good faith in making a report, taking photographs or X-rays, assisting an investigator from the division, serving as a member of a child protection team, or taking a child into protective custody pursuant to this part, is immune from any liability, civil or criminal, that otherwise might result by reason of those actions.
(2) This section does not provide immunity with respect to acts or omissions of a governmental employee except as provided in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 1157. Section 62A-4a-412 is amended to read:
62A-4a-412
. Reports and information confidential.(1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well as any other information in the possession of the division obtained as the result of a report are private, protected, or controlled records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and may only be made available to:
(a) a police or law enforcement agency investigating a report of known or suspected child abuse or neglect;
(b) a physician who reasonably believes that a child may be the subject of abuse or neglect;
(c) an agency that has responsibility or authority to care for, treat, or supervise a minor who is the subject of a report;
(d) a contract provider that has a written contract with the division to render services to a minor who is the subject of a report;
(e) any subject of the report, the natural parents of the child, and the guardian ad litem;
(f) a court, upon a finding that access to the records may be necessary for the determination of an issue before the court, provided that in a divorce, custody, or related proceeding between private parties, the record alone is:
(i) limited to objective or undisputed facts that were verified at the time of the investigation; and
(ii) devoid of conclusions drawn by the division or any of the division's workers on the ultimate issue of whether or not a person's acts or omissions constituted any level of abuse or neglect of another person;
(g) an office of the public prosecutor or its deputies in performing an official duty;
(h) a person authorized by a Children's Justice Center, for the purposes described in Section 67-5b-102;
(i) a person engaged in bona fide research, when approved by the director of the division, if the information does not include names and addresses;
(j) the State Office of Education, acting on behalf of itself or on behalf of a school district, for the purpose of evaluating whether an individual should be permitted to obtain or retain a license as an educator or serve as an employee or volunteer in a school, limited to information with substantiated findings involving an alleged sexual offense, an alleged felony or class A misdemeanor drug offense, or any alleged offense against the person under Title 76, Chapter 5, Offenses Against the Person, and with the understanding that the office must provide the subject of a report received under Subsection (1)(k) with an opportunity to respond to the report before making a decision concerning licensure or employment;
(k) any person identified in the report as a perpetrator or possible perpetrator of child abuse or neglect, after being advised of the screening prohibition in Subsection (2);
(l) a person filing a petition for a child protective order on behalf of a child who is the subject of the report; and
(m) a licensed child-placing agency or person who is performing a preplacement adoptive evaluation in accordance with the requirements of Section 78-30-3.5.
(2) (a) A person, unless listed in Subsection (1), may not request another person to obtain or release a report or any other information in the possession of the division obtained as a result of the report that is available under Subsection (1)(k) to screen for potential perpetrators of child abuse or neglect.
(b) A person who requests information knowing that it is a violation of Subsection (2)(a) to do so is subject to the criminal penalty in Subsection (4).
(3) (a) Except as provided in Section 62A-4a-1007 and Subsection (3)(b), the division and law enforcement officials shall ensure the anonymity of the person or persons making the initial report and any others involved in its subsequent investigation.
(b) Notwithstanding any other provision of law, excluding Section 78-3a-314, but including this chapter and [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, when the division makes a report or other information in its possession available under Subsection (1)(e) to a subject of the report or a parent of a child, the division shall remove from the report or other information only the names, addresses, and telephone numbers of individuals or specific information that could:
(i) identify the referent;
(ii) impede a criminal investigation; or
(iii) endanger a person's safety.
(4) Any person who wilfully permits, or aides and abets the release of data or information obtained as a result of this part, in the possession of the division or contained on any part of the Management Information System, in violation of this part or Sections 62A-4a-1003 through 62A-4a-1007, is guilty of a class C misdemeanor.
(5) The physician-patient privilege is not a ground for excluding evidence regarding a child's injuries or the cause of those injuries, in any proceeding resulting from a report made in good faith pursuant to this part.
(6) A child-placing agency or person who receives a report in connection with a preplacement adoptive evaluation pursuant to Section 78-30-3.5:
(a) may provide this report to the person who is the subject of the report; and
(b) may provide this report to a person who is performing a preplacement adoptive evaluation in accordance with the requirement of Section 78-30-3.5, or to a licensed child-placing agency or to an attorney seeking to facilitate an adoption.
Section 1158. Section 62A-4a-906 is amended to read:
62A-4a-906
. Termination or modification of adoption assistance.(1) Adoption assistance may not be terminated or modified unless the division has given adoptive parents notice and opportunity for a hearing as required in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) Adoption assistance shall be terminated if any of the following occur:
(a) the adoptive parents request termination;
(b) the child reaches 18 years of age, unless approval has been given by the division to continue beyond the age of 18 due to mental or physical disability, but in no case shall assistance continue after a child reaches 21 years of age;
(c) the child dies;
(d) the adoptive parents die;
(e) the adoptive parent's legal responsibility for the child ceases;
(f) the state determines that the child is no longer receiving support from the adoptive parents;
(g) the child marries; or
(h) the child enters military service.
Section 1159. Section 62A-4a-1003 is amended to read:
62A-4a-1003
. Management Information System -- Requirements -- Contents -- Purpose -- Access.(1) (a) The division shall develop and implement a Management Information System that meets the requirements of this section and the requirements of federal law and regulation.
(b) The information and records contained in the Management Information System:
(i) are protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(ii) except as provided in Subsections (1)(c) and (d), are available only to a person with statutory authorization under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, to review the information and records described in this Subsection (1)(b).
(c) Notwithstanding Subsection (1)(b)(ii), the information and records described in Subsection (1)(b) are available to a person:
(i) as provided under Subsection (6) or Section 62A-4a-1006; or
(ii) who has specific statutory authorization to access the information or records for the purpose of assisting the state with state and federal requirements to maintain information solely for the purpose of protecting minors and providing services to families in need.
(d) Notwithstanding Subsection (1)(b)(ii), the information and records described in Subsection (1)(b) may, to the extent required by Title IV-B or IV-E of the Social Security Act, be provided by the division:
(i) to comply with child abuse and neglect registry checks requested by other states; and
(ii) to the United States Department of Health and Human Services for purposes of maintaining an electronic national registry of substantiated cases of child abuse and neglect.
(2) With regard to all child welfare cases, the Management Information System shall provide each caseworker and the department's office of licensing, exclusively for the purposes of foster parent licensure and monitoring, with a complete history of each child in that worker's caseload, including:
(a) a record of all past action taken by the division with regard to that child and the child's siblings;
(b) the complete case history and all reports and information in the control or keeping of the division regarding that child and the child's siblings;
(c) the number of times the child has been in the custody of the division;
(d) the cumulative period of time the child has been in the custody of the division;
(e) a record of all reports of abuse or neglect received by the division with regard to that child's parent, parents, or guardian including:
(i) for each report, documentation of the:
(A) latest status; or
(B) final outcome or determination; and
(ii) information that indicates whether each report was found to be:
(A) supported;
(B) unsupported;
(C) substantiated by a juvenile court;
(D) unsubstantiated by a juvenile court; or
(E) without merit;
(f) the number of times the child's parent or parents failed any child and family plan; and
(g) the number of different caseworkers who have been assigned to that child in the past.
(3) The division's Management Information System shall:
(a) contain all key elements of each family's current child and family plan, including:
(i) the dates and number of times the plan has been administratively or judicially reviewed;
(ii) the number of times the parent or parents have failed that child and family plan; and
(iii) the exact length of time the child and family plan has been in effect; and
(b) alert caseworkers regarding deadlines for completion of and compliance with policy, including child and family plans.
(4) With regard to all child protective services cases, the Management Information System shall:
(a) monitor the compliance of each case with:
(i) division rule and policy;
(ii) state law; and
(iii) federal law and regulation; and
(b) include the age and date of birth of the alleged perpetrator at the time the abuse or neglect is alleged to have occurred, in order to ensure accuracy regarding the identification of the alleged perpetrator.
(5) Except as provided in Subsection (6) regarding contract providers and Section 62A-4a-1006 regarding limited access to the Licensing Information System, all information contained in the division's Management Information System is available to the department, upon the approval of the executive director, on a need-to-know basis.
(6) (a) Subject to this Subsection (6), the division may allow its contract providers, court clerks designated by the Administrative Office of the Courts, and the Office of the Guardian Ad Litem to have limited access to the Management Information System.
(b) A division contract provider has access only to information about a person who is currently receiving services from that specific contract provider.
(c) (i) Designated court clerks may only have access to information necessary to comply with Subsection 78-3h-102(2).
(ii) The Office of the Guardian Ad Litem may access only the information that:
(A) relates to children and families where the Office of the Guardian Ad Litem is appointed by a court to represent the interests of the children; and
(B) except as provided in Subsection (6)(d), is entered into the Management Information System on or after July 1, 2004.
(d) Notwithstanding Subsection (6)(c)(ii)(B), the Office of the Guardian Ad Litem shall have access to all child abuse and neglect referrals about children and families where the office has been appointed by a court to represent the interests of the children, regardless of the date that the information is entered into the Management Information System.
(e) Each contract provider and designated representative of the Office of the Guardian Ad Litem who requests access to information contained in the Management Information System shall:
(i) take all necessary precautions to safeguard the security of the information contained in the Management Information System;
(ii) train its employees regarding:
(A) requirements for protecting the information contained in the Management Information System as required by this chapter and under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(B) the criminal penalties under Sections 62A-4a-412 and [63-2-801] 63G-2-801 for improper release of information; and
(iii) monitor its employees to ensure that they protect the information contained in the Management Information System as required by law.
(f) The division shall take reasonable precautions to ensure that its contract providers comply with the requirements of this Subsection (6).
(7) The division shall take all necessary precautions, including password protection and other appropriate and available technological techniques, to prevent unauthorized access to or release of information contained in the Management Information System.
Section 1160. Section 62A-4a-1006 is amended to read:
62A-4a-1006
. Licensing Information System -- Contents -- Juvenile court finding -- Protected record -- Access -- Criminal penalty.(1) (a) The division shall maintain a sub-part of the Management Information System established pursuant to Section 62A-4a-1003, to be known as the Licensing Information System, to be used:
(i) for licensing purposes; or
(ii) as otherwise specifically provided for by law.
(b) The Licensing Information System shall include only the following information:
(i) the information described in Subsections 62A-4a-1005(1)(b) and (3)(b);
(ii) consented-to supported findings by alleged perpetrators under Subsection 62A-4a-1005(3)(a)(iii); and
(iii) the information in the licensing part of the division's Management Information System as of May 6, 2002.
(2) Notwithstanding Subsection (1), the department's access to information in the Management Information System for the licensure and monitoring of foster parents is governed by Sections 62A-4a-1003 and 62A-2-121.
(3) Subject to Subsection 62A-4a-1005(3)(e), upon receipt of a finding from the juvenile court under Section 78-3a-320, the division shall:
(a) promptly amend the Licensing Information System; and
(b) enter the information in the Management Information System.
(4) (a) Information contained in the Licensing Information System is classified as a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) Notwithstanding the disclosure provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the information contained in the Licensing Information System may only be used or disclosed as specifically provided in this chapter and Section 62A-2-121.
(c) The information described in Subsection (4)(b) is accessible only to:
(i) the Office of Licensing within the department:
(A) for licensing purposes; or
(B) as otherwise specifically provided for by law;
(ii) the division to:
(A) screen a person at the request of the Office of the Guardian Ad Litem Director:
(I) at the time that person seeks a paid or voluntary position with the Office of the Guardian Ad Litem Director; and
(II) on an annual basis, throughout the time that the person remains with the Office of Guardian Ad Litem Director; and
(B) respond to a request for information from a person whose name is listed in the Licensing Information System;
(iii) two persons designated by and within the Department of Health, only for the following purposes:
(A) licensing a child care program or provider; or
(B) determining whether a person associated with a covered health care facility, as defined by the Department of Health by rule, who provides direct care to a child, has a supported finding of a severe type of child abuse or neglect; and
(iv) the department, as specifically provided in this chapter.
(5) The two persons designated by the Department of Health under Subsection (4)(c)(iii) shall adopt measures to:
(a) protect the security of the Licensing Information System; and
(b) strictly limit access to the Licensing Information System to those persons designated by statute.
(6) All persons designated by statute as having access to information contained in the Licensing Information System shall receive training from the department with respect to:
(a) accessing the Licensing Information System;
(b) maintaining strict security; and
(c) the criminal provisions of Sections 62A-4a-412 and [63-2-801] 63G-2-801 pertaining to the improper release of information.
(7) (a) A person, except those authorized by this chapter, may not request another person to obtain or release any other information in the Licensing Information System to screen for potential perpetrators of child abuse or neglect.
(b) A person who requests information knowing that it is a violation of this Subsection (7) to do so is subject to the criminal penalty described in Sections 62A-4a-412 and [63-2-801] 63G-2-801.
Section 1161. Section 62A-4a-1009 is amended to read:
62A-4a-1009
. Notice and opportunity to challenge supported finding in Management Information System -- Right of judicial review.(1) (a) Except as provided in Subsection (2), the division shall send a notice of agency action to a person with respect to whom the division makes a supported finding. In addition, if the alleged perpetrator is under the age of 18, the division shall:
(i) make reasonable efforts to identify the alleged perpetrator's parent or guardian; and
(ii) send a notice to each parent or guardian identified under Subsection (1)(a)(i) that lives at a different address, unless there is good cause, as defined by rule, for not sending a notice to a parent or guardian.
(b) Nothing in this section may be construed as affecting:
(i) the manner in which the division conducts an investigation; or
(ii) the use or effect, in any other setting, of a supported finding by the division at the completion of an investigation for any purpose other than for notification under Subsection (1) (a).
(2) Subsection (1) does not apply to a person who has been served with notice under Subsection 62A-4a-1005(1)(a).
(3) The notice described in Subsection (1) shall state:
(a) that the division has conducted an investigation regarding alleged child abuse, neglect, or dependency;
(b) that the division has made a supported finding of abuse, neglect, or dependency;
(c) that facts gathered by the division support the supported finding;
(d) that the person has the right to request:
(i) a copy of the report; and
(ii) an opportunity to challenge the supported finding by the division; and
(e) that failure to request an opportunity to challenge the supported finding within 30 days of receiving the notice will result in an unappealable supported finding of child abuse, neglect, or dependency unless the person can show good cause for why compliance within the 30-day requirement was virtually impossible or unreasonably burdensome.
(4) (a) A person may make a request to challenge a supported finding within 30 days of a notice being received under this section.
(b) Upon receipt of a request under Subsection (4)(a), the Office of Administrative Hearings shall hold an adjudicative proceeding pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(5) (a) In an adjudicative proceeding held pursuant to this section, the division shall have the burden of proving, by a preponderance of the evidence, that child abuse, neglect, or dependency occurred and that the alleged perpetrator was substantially responsible for the abuse or neglect that occurred.
(b) Any party shall have the right of judicial review of final agency action, in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(6) Except as otherwise provided in this chapter, an alleged perpetrator who, after receiving notice, fails to challenge a supported finding in accordance with this section:
(a) may not further challenge the finding; and
(b) shall have no right to:
(i) agency review of the finding;
(ii) an adjudicative hearing on the finding; or
(iii) judicial review of the finding.
(7) (a) Except as provided in Subsection (7)(b), an alleged perpetrator may not make a request under Subsection (4) to challenge a supported finding if a court of competent jurisdiction entered a finding, in a proceeding in which the alleged perpetrator was a party, that the alleged perpetrator is substantially responsible for the abuse, neglect, or dependency which was also the subject of the supported finding.
(b) Subsection (7)(a) does not apply to pleas in abeyance or diversion agreements.
(c) An adjudicative proceeding under Subsection (5) may be stayed during the time a judicial action on the same matter is pending.
(8) Pursuant to Section 78-3a 320, an adjudicative proceeding on a supported finding of a type of abuse or neglect that does not constitute a severe type of child abuse or neglect may be joined in the juvenile court with an adjudicative proceeding on a supported finding of a severe type of child abuse or neglect.
Section 1162. Section 62A-5-103 is amended to read:
62A-5-103
. Responsibility and authority of division.(1) For purposes of this section "administer" means to:
(a) plan;
(b) develop;
(c) manage;
(d) monitor; and
(e) conduct certification reviews.
(2) The division has the authority and responsibility to:
(a) administer an array of services and supports for persons with disabilities and their families throughout the state;
(b) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that establish eligibility criteria for the services and supports described in Subsection (2)(a);
(c) consistent with Section 62A-5-206, supervise the programs and facilities of the Developmental Center;
(d) in order to enhance the quality of life for a person with a disability, establish either directly, or by contract with private, nonprofit organizations, programs of:
(i) outreach;
(ii) information and referral;
(iii) prevention;
(iv) technical assistance; and
(v) public awareness;
(e) supervise the programs and facilities operated by, or under contract with, the division;
(f) cooperate with other state, governmental, and private agencies that provide services to a person with a disability;
(g) subject to Subsection (3), ensure that a person with a disability is not deprived of that person's constitutionally protected rights without due process procedures designed to minimize the risk of error when a person with a disability is admitted to any structured residential mental retardation facility, including:
(i) the developmental center; and
(ii) facilities within the community;
(h) determine whether to approve providers;
(i) monitor and sanction approved providers, as specified in the providers' contract;
(j) subject to Section 62A-5-103.5, receive and disburse public funds;
(k) review financial actions of a provider who is a representative payee appointed by the Social Security Administration;
(l) establish standards and rules for the administration and operation of programs conducted by, or under contract with, the division;
(m) approve and monitor division programs to insure compliance with the board's rules and standards;
(n) establish standards and rules necessary to fulfill the division's responsibilities under Parts 2 and 3 of this chapter with regard to mental retardation facilities;
(o) assess and collect equitable fees for a person who receives services provided under this chapter;
(p) maintain records of, and account for, the funds described in Subsection (2)(o);
(q) establish and apply rules to determine whether to approve, deny, or defer the division's services to a person who is:
(i) applying to receive the services; or
(ii) currently receiving the services;
(r) in accordance with state law, establish rules:
(i) relating to a mental retardation facility that is an endorsed program; and
(ii) governing the admission, transfer, and discharge of a person with a disability;
(s) manage funds for a person residing in a facility operated by the division:
(i) upon request of a parent or guardian of the person; or
(ii) under administrative or court order; and
(t) fulfill the responsibilities described in Chapter 5a, Coordinating Council for Persons with Disabilities.
(3) The due process procedures described in Subsection (2)(g):
(a) shall include initial and periodic reviews to determine the constitutional appropriateness of the placement; and
(b) with regard to facilities in the community, do not require commitment to the division.
Section 1163. Section 62A-5-103.1 is amended to read:
62A-5-103.1
. Pilot program for provision of supported employment services.(1) There is established a pilot program for the provision of supported employment services to be administered by the division, beginning on July 1, 2006, and ending on July 1, 2008.
(2) The division shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary for the implementation and administration of this section.
(3) In accordance with Subsection (4), within funds appropriated by the Legislature for the pilot program described in this section, the division shall provide supported employment services to a person with a disability who:
(a) is eligible to receive services from the division;
(b) has applied for, and is waiting to, receive services from the division;
(c) is not receiving other ongoing services from the division;
(d) is not able to receive sufficient supported employment services from other sources;
(e) the division determines would substantially benefit from the provision of supported employment services; and
(f) does not require the provision of other ongoing services from the division in order to substantially benefit from the provision of supported employment services.
(4) (a) The division shall provide supported employment services under this section outside of the prioritization criteria established by the division for the receipt of other services from the division.
(b) The division shall establish criteria to determine the priority, between persons eligible for services under this section, for receiving services under this section.
(5) It is the intent of the Legislature that the services provided under the pilot program described in this section:
(a) shall be provided separately from the Medicaid program described in Title XIX of the Social Security Act;
(b) may not be supported with Medicaid funds;
(c) may not be provided as part of a Medicaid waiver;
(d) do not constitute an entitlement of any kind; and
(e) may be withdrawn from a person at any time.
(6) The director of the division shall report to the Health and Human Services Interim Committee during the 2007 interim regarding:
(a) the operation and accomplishments of the pilot program described in this section;
(b) whether the Legislature should convert the pilot program to an ongoing program within the division; and
(c) recommendations for changes, if any, relating to the pilot program.
(7) During the 2007 interim, the Health and Human Services Interim Committee shall:
(a) hear or review the report described in Subsection (6); and
(b) determine whether the pilot program described in this section should be converted to an ongoing program within the division.
Section 1164. Section 62A-5-103.2 is amended to read:
62A-5-103.2
. Pilot program for family preservation services.(1) There is established a pilot program for the provision of family preservation services to a person with a disability and that person's family, beginning on July 1, 2007, and ending on July 1, 2009.
(2) The family preservation services described in Subsection (1) may include:
(a) family skill building classes;
(b) respite hours for class attendance; or
(c) professional intervention.
(3) The division shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary for the implementation and administration of this section.
(4) In accordance with Subsection (5), within funds appropriated by the Legislature for the pilot program described in this section, the division shall provide family preservation services to a person with a disability, and that person's family, if that person:
(a) is eligible to receive services from the division;
(b) has applied for, and is willing to receive, services from the division;
(c) is not receiving other ongoing services from the division;
(d) is not able to receive sufficient family preservation services from other sources;
(e) is determined by the division to be a person who would substantially benefit from the provision of family preservation services; and
(f) does not require the provision of other ongoing services from the division in order to substantially benefit from the provision of family preservation services.
(5) (a) The division shall provide family preservation services under this section outside of the prioritization criteria established by the division for the receipt of other services from the division.
(b) The division shall establish criteria to determine the priority, between persons eligible for services under this section, for receiving services under this section.
(6) It is the intent of the Legislature that the services provided under the pilot program described in this section:
(a) shall be provided separately from the Medicaid program described in Title XIX of the Social Security Act;
(b) may not be supported with Medicaid funds;
(c) may not be provided as part of a Medicaid waiver;
(d) do not constitute an entitlement of any kind; and
(e) may be withdrawn from a person at any time.
(7) The director of the division shall report to the Health and Human Services Interim Committee during the 2008 interim regarding:
(a) the operation and accomplishments of the pilot program described in this section;
(b) whether the Legislature should convert the pilot program to an ongoing program within the division; and
(c) recommendations for changes, if any, related to the pilot program.
(8) During the 2008 interim, the Health and Human Services Interim Committee shall:
(a) hear or review the report described in Subsection (7); and
(b) determine whether the pilot program described in this section should be converted into an ongoing program within the division.
Section 1165. Section 62A-5-105 is amended to read:
62A-5-105
. Board -- Membership -- Responsibilities -- Policy mediation.(1) The board is the policymaking body for the division and shall establish by rule the policy of the division in accordance with:
(a) the policy of the Legislature as set forth by this chapter; and
(b) [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) The board shall:
(a) establish program policy for the division, the developmental center, and programs and facilities operated by or under contract with the division;
(b) establish policies for the assessment and collection of fees for programs within the division;
(c) no later than July 1, 2003, establish a graduated fee schedule based on ability to pay and implement the schedule with respect to service recipients and their families where not otherwise prohibited by federal law or regulation or not otherwise provided for in Section 62A-5-109;
(d) establish procedures to ensure that private citizens, consumers, private contract providers, allied state and local agencies, and others are provided with an opportunity to comment and provide input regarding any new policy or proposed revision to an existing policy;
(e) provide a mechanism for systematic and regular review of existing policy and for consideration of policy changes proposed by the persons and agencies described under Subsection (2)(d);
(f) (i) establish and periodically review the criteria used to determine who may receive services from the division and how the delivery of those services is prioritized within available funding; and
(ii) make periodic recommendations based on the review conducted under Subsection (2)(f)(i) to the Health and Human Services Interim Committee beginning at or before the September 2002 meeting of the committee;
(g) review implementation and compliance by the division with policies established by the board to ensure that the policies established by the Legislature in this chapter are carried out; and
(h) annually report to the executive director.
(3) At least one member of the board shall be a person whose life or family is directly affected by a disability, and at least one other board member shall be a person with a physical disability.
(4) The executive director shall mediate any differences which arise between the policies of the board and those of any other policy board in the department.
Section 1166. Section 62A-5-313 is amended to read:
62A-5-313
. Transfer -- Procedures.(1) The director of the division, or his designee, may place an involuntarily committed resident in appropriate care or treatment outside the mental retardation facility. During that placement, the order of commitment shall remain in effect, until the resident is discharged or the order is terminated.
(2) If the resident, or his parent or guardian, objects to a proposed placement under this section, he may appeal the decision to the executive director or his designee. Those appeals shall be conducted in accordance with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act. If an objection is made, the proposed placement may not take effect until the committee holds that hearing and the executive director makes a final decision on the placement.
Section 1167. Section 62A-5a-104 is amended to read:
62A-5a-104
. Powers of council.(1) The council has authority, after local or individual efforts have failed, including, with regard to persons under 22 years of age, actions by local interagency councils established under Section [63-75-5.7] 63M-9-301, to:
(a) coordinate the appropriate transition of persons with disabilities who receive services and support from one state agency to receive services and support from another state agency;
(b) coordinate policies governing the provision of services and support for persons with disabilities by state agencies; and
(c) consider issues regarding eligibility for services and support and, where possible, develop uniform eligibility standards for state agencies.
(2) The council may receive appropriations from the Legislature to purchase services and supports for persons with disabilities as the council deems appropriate.
Section 1168. Section 62A-7-202 is amended to read:
62A-7-202
. Location of detention facilities and services.(1) The division shall provide detention facilities and services in each county, or group of counties, as the population demands, in accordance with the provisions of this chapter.
(2) The division, through its detention centers, is responsible for development, implementation, and administration of home detention services, and shall establish criteria for placement on home detention.
(3) The division shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing standards for admission to secure detention and home detention programs.
(4) The division shall provide training regarding implementation of the rules to law enforcement agencies, division employees, juvenile court employees, and other affected agencies and individuals upon their request.
Section 1169. Section 62A-11-104.1 is amended to read:
62A-11-104.1
. Disclosure of information regarding employees.(1) Upon request by the office, for purposes of an official investigation made in connection with its duties under Section 62A-11-104, the following disclosures shall be made to the office:
(a) a public or private employer shall disclose an employee's name, address, date of birth, income, social security number, and health insurance information pertaining to the employee and his dependents;
(b) an insurance organization subject to Title 31A, Insurance Code, or the insurance administrators of a self-insured employer shall disclose health insurance information pertaining to an insured or an insured's dependents, if known; and
(c) a financial institution subject to Title 7, Financial Institutions, shall disclose financial record information of a customer named in the request.
(2) The office shall specify by rule the type of health insurance and financial record information required to be disclosed under this section.
(3) All information received under this section is subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(4) An employer, financial institution, or insurance organization, or its agent or employee, is not civilly or criminally liable for providing information to the office in accordance with this section, whether the information is provided pursuant to oral or written request.
Section 1170. Section 62A-11-105 is amended to read:
62A-11-105
. Adjudicative proceedings.The office and the department shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 1171. Section 62A-11-303 is amended to read:
62A-11-303
. Definitions.As used in this part:
(1) "Adjudicative proceeding" means an action or proceeding of the office conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) "Administrative order" means an order that has been issued by the office, the department, or an administrative agency of another state or other comparable jurisdiction with similar authority to that of the office.
(3) "Assistance" or "public assistance" is defined in Section 62A-11-103.
(4) "Business day" means a day on which state offices are open for regular business.
(5) "Child" means:
(a) a son or daughter under the age of 18 years who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(b) a son or daughter over the age of 18 years, while enrolled in high school during the normal and expected year of graduation and not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States; or
(c) a son or daughter of any age who is incapacitated from earning a living and is without sufficient means.
(6) "Child support" is defined in Section 62A-11-401.
(7) "Child support guidelines" or "guidelines" is defined in Section 78-45-2.
(8) "Child support order" or "support order" is defined in Section 62A-11-401.
(9) "Child support services" or "IV-D child support services" is defined in Section 62A-11-103.
(10) "Court order" means a judgment or order of a tribunal of appropriate jurisdiction of this state, another state, Native American tribe, the federal government, or any other comparable jurisdiction.
(11) "Director" means the director of the Office of Recovery Services.
(12) "Disposable earnings" is defined in Section 62A-11-103.
(13) "High-volume automated administrative enforcement" in interstate cases means, on the request of another state, the identification by the office, through automatic data matches with financial institutions and other entities where assets may be found, of assets owned by persons who owe child support in the requesting state, and the seizure of the assets by the office, through levy or other appropriate processes.
(14) "Income" is defined in Section 62A-11-103.
(15) "Notice of agency action" means the notice required to commence an adjudicative proceeding in accordance with Section [63-46b-3] 63G-4-201.
(16) "Obligee" means an individual, this state, another state, or other comparable jurisdiction to whom a duty of child support is owed, or who is entitled to reimbursement of child support or public assistance.
(17) "Obligor" means a person, firm, corporation, or the estate of a decedent owing a duty of support to this state, to an individual, to another state, or other corporate jurisdiction in whose behalf this state is acting.
(18) "Office" is defined in Section 62A-11-103.
(19) "Parent" means a natural parent or an adoptive parent of a dependent child.
(20) "Person" includes an individual, firm, corporation, association, political subdivision, department, or office.
(21) "Presiding officer" means a presiding officer described in Section [63-46b-2] 63G-4-103.
(22) "Support" includes past-due, present, and future obligations established by:
(a) a tribunal or imposed by law for the financial support, maintenance, medical, or dental care of a dependent child; and
(b) a tribunal for the financial support of a spouse or former spouse with whom the obligor's dependent child resides if the obligor also owes a child support obligation that is being enforced by the state.
(23) "Support debt," "past-due support," or "arrears" means the debt created by nonpayment of support.
(24) "Tribunal" means the district court, the Department of Human Services, the Office of Recovery Services, or court or administrative agency of any state, territory, possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Native American Tribe, or other comparable domestic or foreign jurisdiction.
Section 1172. Section 62A-11-304.1 is amended to read:
62A-11-304.1
. Expedited procedures for establishing paternity or establishing, modifying, or enforcing a support order.(1) The office may, without the necessity of initiating an adjudicative proceeding or obtaining an order from any other judicial or administrative tribunal, take the following actions related to the establishment of paternity or the establishment, modification, or enforcement of a support order, and to recognize and enforce the authority of state agencies of other states to take the following actions:
(a) require a child, mother, and alleged father to submit to genetic testing;
(b) subpoena financial or other information needed to establish, modify, or enforce a support order, including:
(i) the name, address, and employer of a person who owes or is owed support that appears on the customer records of public utilities and cable television companies; and
(ii) information held by financial institutions on such things as the assets and liabilities of a person who owes or is owed support;
(c) require a public or private employer to promptly disclose information to the office on the name, address, date of birth, social security number, employment status, compensation, and benefits, including health insurance, of any person employed as an employee or contractor by the employer;
(d) require an insurance organization subject to Title 31A, Insurance Code, or an insurance administrator of a self-insured employer to promptly disclose to the office health insurance information pertaining to an insured or an insured's dependents, if known;
(e) obtain access to information in the records and automated databases of other state and local government agencies, including:
(i) marriage, birth, and divorce records;
(ii) state and local tax and revenue records providing information on such things as residential and mailing addresses, employers, income, and assets;
(iii) real and titled personal property records;
(iv) records concerning occupational and professional licenses and the ownership and control of corporations, partnerships, and other business entities;
(v) employment security records;
(vi) records of agencies administering public assistance programs;
(vii) motor vehicle department records; and
(viii) corrections records;
(f) upon providing notice to the obligor and obligee, direct an obligor or other payor to change the payee to the office if support has been assigned to the office under Section 35A-7-108 or if support is paid through the office pursuant to the Social Security Act, 42 U.S.C. Sec. 654B;
(g) order income withholding in accordance with Part 4 of this chapter;
(h) secure assets to satisfy past-due support by:
(i) intercepting or seizing periodic or lump-sum payments from:
(A) a state or local government agency, including unemployment compensation, workers' compensation, and other benefits; and
(B) judgments, settlements, and lotteries;
(ii) attaching and seizing assets of an obligor held in financial institutions;
(iii) attaching public and private retirement funds, if the obligor presently:
(A) receives periodic payments; or
(B) has the authority to withdraw some or all of the funds; and
(iv) imposing liens against real and personal property in accordance with this section and Section 62A-11-312.5; and
(i) increase monthly payments in accordance with Section 62A-11-320.
(2) (a) When taking action under Subsection (1), the office shall send notice under this Subsection (2)(a) to the person or entity who is required to comply with the action if not a party to a case receiving IV-D services. The notice shall include:
(i) the authority of the office to take the action;
(ii) the response required by the recipient;
(iii) the opportunity to provide clarifying information to the office under Subsection (2)(b);
(iv) the name and telephone number of a person in the office who can respond to inquiries; and
(v) the protection from criminal and civil liability extended under Subsection (7).
(b) The recipient of a notice sent under Subsection (2)(a) shall promptly comply with the terms of the notice and may, if the recipient believes the office's request is in error, send clarifying information to the office setting forth the basis for the recipient's belief.
(3) The office shall in any case in which it requires genetic testing under Subsection (1)(a):
(a) consider clarifying information if submitted by the obligee and alleged father;
(b) proceed with testing as the office considers appropriate;
(c) pay the cost of the tests, subject to recoupment from the alleged father if paternity is established;
(d) order a second test if the original test result is challenged, and the challenger pays the cost of the second test in advance; and
(e) require that the genetic test is:
(i) of a type generally acknowledged as reliable by accreditation bodies designated by the federal Secretary of Health and Human Services; and
(ii) performed by a laboratory approved by such an accreditation body.
(4) The office may impose a penalty against an entity for failing to provide information requested in a subpoena issued under Subsection (1) as follows:
(a) $25 for each failure to provide requested information; or
(b) $500 if the failure to provide requested information is the result of a conspiracy between the entity and the obligor to not supply the requested information or to supply false or incomplete information.
(5) (a) Unless a court or administrative agency has reduced past-due support to a sum certain judgment, the office shall provide concurrent notice to an obligor in accordance with Section 62A-11-304.4 of:
(i) any action taken pursuant to Subsections (1)(h)(i)(B), (l)(h)(ii), (1)(h)(iii), or Subsection 62A-11-304.5(1)(b) if Subsection (5)(b)(iii) does not apply; and
(ii) the opportunity of the obligor to contest the action and the amount claimed to be past-due by filing a written request for an adjudicative proceeding with the office within 15 days of notice being sent.
(b) (i) Upon receipt of a notice of levy from the office for an action taken pursuant to Subsections (1)(h)(i)(B), (1)(h)(ii), (1)(h)(iii), or Subsection 62A-11-304.5(1)(b), a person in possession of personal property of the obligor shall:
(A) secure the property from unauthorized transfer or disposition as required by Section 62A-11-313; and
(B) surrender the property to the office after 21 days of receiving the notice unless the office has notified the person to release all or part of the property to the obligor.
(ii) Unless released by the office, a notice of levy upon personal property shall be:
(A) valid for 60 days; and
(B) effective against any additional property which the obligor may deposit or transfer into the possession of the person up to the amount of the levy.
(iii) If the property upon which the office imposes a levy is insufficient to satisfy the specified amount of past-due support and the obligor fails to contest that amount under Subsection (5)(a)(ii), the office may proceed under Subsections (1)(h)(i)(B), (1)(h)(ii), (1)(h)(iii), or Subsection 62A-11-304.5(1)(b) against additional property of the obligor until the amount specified and the reasonable costs of collection are fully paid.
(c) Except as provided in Subsection (5)(b)(iii), the office may not disburse funds resulting from action requiring notice under Subsection (5)(a)(i) until:
(i) 21 days after notice was sent to the obligor; and
(ii) the obligor, if he contests the action under Subsection (5)(a)(ii), has exhausted his administrative remedies and, if appealed to a district court, the district court has rendered a final decision.
(d) Before intercepting or seizing any periodic or lump-sum payment under Subsection (1)(h)(i)(A), the office shall:
(i) comply with Subsection 59-10-529(2)(a); and
(ii) include in the notice required by Subsection 59-10-529(2)(a) reference to Subsection (1)(h)(i)(A).
(e) If Subsection (5)(a) or (5)(d) does not apply, an action against the real or personal property of the obligor shall be in accordance with Section 62A-11-312.5.
(6) All information received under this section is subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(7) No employer, financial institution, public utility, cable company, insurance organization, its agent or employee, or related entity may be civilly or criminally liable for providing information to the office or taking any other action requested by the office pursuant to this section.
(8) The actions the office may take under Subsection (1) are in addition to the actions the office may take pursuant to Part 4, Income Withholding in IV-D Cases.
Section 1173. Section 62A-11-304.2 is amended to read:
62A-11-304.2
. Issuance or modification of administrative order -- Compliance with court order -- Authority of office -- Stipulated agreements -- Notification requirements.(1) Through an adjudicative proceeding the office may issue or modify an administrative order that:
(a) determines paternity;
(b) determines whether an obligor owes support;
(c) determines temporary orders of child support upon clear and convincing evidence of paternity in the form of genetic test results or other evidence;
(d) requires an obligor to pay a specific or determinable amount of present and future support;
(e) determines the amount of past-due support;
(f) orders an obligor who owes past-due support and is obligated to support a child receiving public assistance to participate in appropriate work activities if the obligor is unemployed and is not otherwise incapacitated;
(g) imposes a penalty authorized under this chapter;
(h) determines an issue that may be specifically contested under this chapter by a party who timely files a written request for an adjudicative proceeding with the office; and
(i) renews an administrative judgment.
(2) (a) An abstract of a final administrative order issued under this section or a notice of judgment-lien under Section 62A-11-312.5 may be filed with the clerk of any district court.
(b) Upon a filing under Subsection (2)(a), the clerk of the court shall:
(i) docket the abstract or notice in the judgment docket of the court and note the time of receipt on the abstract or notice and in the judgment docket; and
(ii) at the request of the office, place a copy of the abstract or notice in the file of a child support action involving the same parties.
(3) If a judicial order has been issued, the office may not issue an order under Subsection (1) that is not based on the judicial order, except:
(a) the office may establish a new obligation in those cases in which the juvenile court has ordered the parties to meet with the office to determine the support pursuant to Section 78-3a-906; or
(b) the office may issue an order of current support in accordance with the child support guidelines if the conditions of Subsection 78-45f-207(2)(c) are met.
(4) The office may proceed under this section in the name of this state, another state under Section 62A-11-305, any department of this state, the office, or the obligee.
(5) The office may accept voluntary acknowledgment of a support obligation and enter into stipulated agreements providing for the issuance of an administrative order under this part.
(6) The office may act in the name of the obligee in endorsing and cashing any drafts, checks, money orders, or other negotiable instruments received by the office for support.
(7) The obligor shall, after a notice of agency action has been served on him in accordance with Section [63-46b-3] 63G-4-201, keep the office informed of:
(a) his current address;
(b) the name and address of current payors of income;
(c) availability of or access to health insurance coverage; and
(d) applicable health insurance policy information.
Section 1174. Section 62A-11-304.4 is amended to read:
62A-11-304.4
. Filing of location information -- Service of process.(1) (a) Upon the entry of an order in a proceeding to establish paternity or to establish, modify, or enforce a support order, each party shall file identifying information and shall update that information as changes occur:
(i) with the court or administrative agency that conducted the proceeding; and
(ii) after October 1, 1998, with the state case registry.
(b) The identifying information required under Subsection (1)(a) shall include the person’s Social Security number, driver’s license number, residential and mailing addresses, telephone numbers, the name, address, and telephone number of employers, and any other data required by the United States Secretary of Health and Human Services.
(c) In any subsequent child support action involving the office or between the parties, state due process requirements for notice and service of process shall be satisfied as to a party upon:
(i) a sufficient showing that diligent effort has been made to ascertain the location of the party; and
(ii) delivery of notice to the most recent residential or employer address filed with the court, administrative agency, or state case registry under Subsection (1)(a).
(2) (a) The office shall provide individuals who are applying for or receiving services under this chapter or who are parties to cases in which services are being provided under this chapter:
(i) with notice of all proceedings in which support obligations might be established or modified; and
(ii) with a copy of any order establishing or modifying a child support obligation, or in the case of a petition for modification, a notice of determination that there should be no change in the amount of the child support award, within 14 days after issuance of such order or determination.
(b) Notwithstanding Subsection (2)(a)(ii), notice in the case of an interstate order shall be provided in accordance with Section 78-45f-614.
(3) Service of all notices and orders under this part shall be made in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the Utah Rules of Civil Procedure, or this section.
(4) Consistent with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, the office shall adopt procedures to classify records to prohibit the unauthorized use or disclosure of information relating to a proceeding to:
(a) establish paternity; or
(b) establish or enforce support.
(5) (a) The office shall, upon written request, provide location information available in its files on a custodial or noncustodial parent to the other party or the other party's legal counsel provided that:
(i) the party seeking the information produces a copy of the parent-time order signed by the court;
(ii) the information has not been safeguarded in accordance with Section 454 of the Social Security Act;
(iii) the party whose location is being sought has been afforded notice in accordance with this section of the opportunity to contest release of the information;
(iv) the party whose location is being sought has not provided the office with a copy of a protective order, a current court order prohibiting disclosure, a current court order limiting or prohibiting the requesting person's contact with the party or child whose location is being sought, a criminal order, an administrative order pursuant to Section 62A-4a-1009, or documentation of a pending proceeding for any of the above; and
(v) there is no other state or federal law that would prohibit disclosure.
(b) "Location information" shall consist of the current residential address of the custodial or noncustodial parent and, if different and known to the office, the current residence of any children who are the subject of the parent-time order. If there is no current residential address available, the person's place of employment and any other location information shall be disclosed.
(c) For the purposes of this section, "reason to believe" under Section 454 of the Social Security Act means that the person seeking to safeguard information has provided to the office a copy of a protective order, current court order prohibiting disclosure, current court order prohibiting or limiting the requesting person's contact with the party or child whose location is being sought, criminal order signed by a court of competent jurisdiction, an administrative order pursuant to Section 62A-4a-1009, or documentation of a pending proceeding for any of the above.
(d) Neither the state, the department, the office nor its employees shall be liable for any information released in accordance with this section.
(6) Custodial or noncustodial parents or their legal representatives who are denied location information in accordance with Subsection (5) may serve the Office of Recovery Services to initiate an action to obtain the information.
Section 1175. Section 62A-11-326.3 is amended to read:
62A-11-326.3
. Determination of parental liability.(1) In accordance with [Title 63, Chapter 46b, Utah] Title 63G, Chapter 4, Administrative Procedures Act, the office may determine by order the amount of a parent's liability for uninsured medical, hospital, and dental expenses of a dependent child, when the parent:
(a) is required by a prior court or administrative order to:
(i) share those expenses with the other parent of the dependent child; or
(ii) obtain medical, hospital, or dental care insurance but fails to do so; or
(b) receives direct payment from an insurer under insurance coverage obtained after the prior court or administrative order was issued.
(2) If the prior court or administrative order does not specify what proportions of the expenses are to be shared, the office may determine the amount of liability in accordance with established rules.
(3) This section applies to an order without regard to when it was issued.
Section 1176. Section 62A-11-333 is amended to read:
62A-11-333
. Right to judicial review.(1) (a) Within 30 days of notice of any administrative action on the part of the office to establish paternity or establish, modify or enforce a child support order, the obligor may file a petition for de novo review with the district court.
(b) For purposes of Subsection (1)(a), notice includes:
(i) notice actually received by the obligor in accordance with Section 62A-11-304.4;
(ii) participation by the obligor in the proceedings related to the establishment of the paternity or the modification or enforcement of child support; or
(iii) receiving a paycheck in which a reduction has been made for child support.
(2) The petition shall name the office and all other appropriate parties as respondents and meet the form requirements specified in Section [63-46b-15] 63G-4-402.
(3) A copy of the petition shall be served upon the Child and Family Support Division of the Office of Attorney General.
(4) (a) If the petition is regarding the amount of the child support obligation established in accordance with Title 78, Chapter 45, Uniform Civil Liability for Support Act, the court may issue a temporary order for child support until a final order is issued.
(b) The petitioner may file an affidavit stating the amount of child support reasonably believed to be due and the court may issue a temporary order for that amount. The temporary order shall be valid for 60 days, unless extended by the court while the action is being pursued.
(c) If the court upholds the amount of support established in Subsection (4)(a), the petitioner shall be ordered to make up the difference between the amount originally ordered in Subsection (4)(a) and the amount temporarily ordered under Subsection (4)(b).
(d) This Subsection (4) does not apply to an action for the court-ordered modification of a judicial child support order.
(5) The court may, on its own initiative and based on the evidence before it, determine whether the petitioner violated U.R. Civ. P. Rule 11 by filing the action. If the court determines that U.R.Civ.P. Rule 11 was violated, it shall, at a minimum, award to the office attorneys' fees and costs for the action.
(6) Nothing in this section precludes the obligor from seeking administrative remedies as provided in this chapter.
Section 1177. Section 62A-11-407 is amended to read:
62A-11-407
. Payor's procedures for income withholding.(1) (a) A payor is subject to the requirements, penalties, and effects of a notice served on the payor under Section 62A-11-406.
(b) A payment of withheld income mailed to the office in an envelope postmarked within seven business days of the date the amount would have been paid or credited to the obligor but for this section satisfies Subsection 62A-11-406(3).
(2) (a) If a payor fails to comply with a notice served upon him under Section 62A-11-406, the office, the obligee, if an assignment has not been made under Section 35A-7-108, or the obligor may proceed with a civil action against the payor to enforce a provision of the notice.
(b) In addition to a civil action under Subsection (2)(a), the office may bring an administrative action pursuant to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to enforce a provision of the notice.
(c) If an obligee or obligor brings a civil action under Subsection (2)(a) to enforce a provision of the notice, the obligee or obligor may recover any penalty related to that provision under Section 62A-11-406 in place of the office.
(3) If the obligor's child support is owed monthly and the payor's pay periods are at more frequent intervals, the payor, with the consent of the office may withhold an equal amount at each pay period cumulatively sufficient to pay the monthly child support obligation.
(4) A payor may combine amounts which he has withheld from the incomes of multiple obligors into a single payment to the office. If such a combined payment is made, the payor shall specify the amount attributable to each individual obligor by name and Social Security number.
(5) In addition to any other remedy provided in this section, a payor is liable to the office, obligee, or obligor for costs and reasonable attorneys' fees incurred in enforcing a provision in the notice mailed or delivered under Section 62A-11-406.
(6) Notwithstanding this section or Section 62A-11-406, if a payor receives an income withholding order or notice issued by another state, the payor shall apply the income withholding law of the state of the obligor's principal place of employment in determining:
(a) the payor's fee for processing income withholding;
(b) the maximum amount permitted to be withheld from the obligor's income;
(c) the time periods within which the payor must implement income withholding and forward child support payments;
(d) the priorities for withholding and allocating withheld income for multiple child support obligees; and
(e) any term or condition for withholding not specified in the notice.
Section 1178. Section 62A-11-603 (Effective 07/01/08) is amended to read:
62A-11-603 (Effective 07/01/08)
. Suspension of driver license for child support delinquency -- Reinstatement.(1) Subject to the provisions of this section, the office may order the suspension of a person's driver license if the person is delinquent on a child support obligation.
(2) Before ordering a suspension of a person's driver license, the office shall serve the person with a "notice of intent to suspend driver license."
(3) The notice described in Subsection (2) shall:
(a) be personally served or served by certified mail;
(b) except as otherwise provided in this section, comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(c) state the amount that the person is in arrears on the person's child support obligation; and
(d) state that, if the person desires to contest the suspension of the person's driver license, the person must request an informal adjudicative proceeding with the office within 30 days after the day on which the notice is mailed or personally served.
(4) (a) The office shall hold an informal adjudicative proceeding to determine whether a person's driver license should be suspended if the person requests a hearing within 30 days after the day on which the notice described in Subsection (2) is mailed or personally served on the person.
(b) The informal adjudicative proceeding described in Subsection (4)(a), and any appeal of the decision rendered in that proceeding, shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(5) Except as provided in Subsection (6), the office may order that a person's driver license be suspended:
(a) if, after the notice described in Subsection (2) is mailed or personally served, the person fails to request an informal adjudicative proceeding within the time period described in Subsection (4)(a); or
(b) following the informal adjudicative proceeding described in Subsection (4)(a), if:
(i) the presiding officer finds that the person is delinquent on a child support obligation; and
(ii) the finding described in Subsection (5)(b)(i):
(A) is not timely appealed; or
(B) is upheld after a timely appeal becomes final.
(6) The office may not order the suspension of a person's driver license if the person:
(a) pays the full amount that the person is in arrears on the person's child support obligation;
(b) subject to Subsection (8):
(i) enters into a payment agreement with the office for the payment of the person's current child support obligation and all arrears; and
(ii) complies with the agreement described in Subsection (6)(b)(i) for any initial compliance period required by the agreement;
(c) obtains a judicial order staying enforcement of the person's child support obligation or the amount in arrears; or
(d) is not currently delinquent on a child support obligation.
(7) The office shall rescind an order made by the office to suspend a driver license if the person:
(a) pays the full amount that the person is in arrears on the person's child support obligation;
(b) subject to Subsection (8):
(i) enters into a payment agreement with the office for the payment of the person's current child support obligation and all arrears; and
(ii) complies with the agreement described in Subsection (7)(b)(i) for any initial compliance period required by the agreement;
(c) obtains a judicial order staying enforcement of the person's child support obligation or the amount in arrears; or
(d) is not currently delinquent on a child support obligation.
(8) For purposes of Subsections (6)(b) and (7)(b), the office shall diligently strive to enter into a fair and reasonable payment agreement that takes into account the person's employment and financial ability to make payments, provided that there is a reasonable basis to believe that the person will comply with the agreement.
(9) (a) If, after the office seeks to suspend a person's driver license under this section, it is determined that the person is not delinquent, the office shall refund to the person any noncustodial parent income withholding fee that was collected from the person during the erroneously alleged delinquency.
(b) Subsection (9)(a) does not apply if the person described in Subsection (9)(a) is otherwise in arrears on a child support obligation.
(10) (a) A person whose driver license is ordered suspended pursuant to this section may file a request with the office, on a form provided by the office, to have the office rescind the order of suspension if:
(i) the person claims that, since the time of the suspension, circumstances have changed such that the person is entitled to have the order of suspension rescinded under Subsection (7); and
(ii) the office has not rescinded the order of suspension.
(b) The office shall respond, in writing, to a person described in Subsection (10), within 10 days after the day on which the request is filed with the office, stating whether the person is entitled to have the order of suspension rescinded.
(c) If the office determines, under Subsection (10)(b), that an order to suspend a person's license should be rescinded, the office shall immediately rescind the order.
(d) If the office determines, under Subsection (10)(b), that an order to suspend a person's license should not be rescinded:
(i) the office shall, as part of the response described in Subsection (10)(b), notify the person, in writing, of the reasons for that determination; and
(ii) the person described in this Subsection (10)(d) may, within 15 days after the day on which the office sends the response described in Subsection (10)(b), appeal the determination of the office to district court.
(e) The office may not require that a person file the request described in Subsection (10)(a) before the office orders that an order of suspension is rescinded, if the office has already determined that the order of suspension should be rescinded under Subsection (7).
(11) The office may make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(a) implement the provisions of this part; and
(b) determine when the arrears described in Subsections (6) and (7) are considered paid.
Section 1179. Section 62A-13-105 is amended to read:
62A-13-105
. Department duties and powers.(1) The department shall administer this chapter within the Division of Substance Abuse and Mental Health, created in Section 62A-15-103 and under the policy direction of the Board of Substance Abuse and Mental Health created in Section 62A-1-105.
(2) The Division of Substance Abuse and Mental Health shall establish rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act to:
(a) establish application procedures for grants and scholarships;
(b) establish eligibility and selection criteria for grant and scholarship recipients;
(c) determine grant and scholarship awards and conditions for each recipient;
(d) designate eligible underserved rural areas regarding available mental health therapy services in which recipients may fulfill their service obligations; and
(e) establish educational requirements necessary for the grant or scholarship recipient to be qualified to meet service obligations.
(3) The Division of Substance Abuse and Mental Health may:
(a) approve the specific site at which a recipient may fulfill his service obligations under this chapter;
(b) set limitations on the amount an individual may receive and on the number of years for which an individual may receive funds under this chapter;
(c) cancel grants or scholarships for cause and, for compelling reasons, accept a lesser measure of damages for breach of a grant or scholarship contract or release a recipient from the service obligation without penalty for extreme hardship or other good cause;
(d) cancel a grant or scholarship for cause without penalty to the state; and
(e) cancel a grant or a scholarship if the recipient fails to meet the conditions of the award or if it reasonably appears the recipient will not meet the grant or scholarship conditions.
(4) The department may accept gifts, grants, loans, and other aid or funds from any person, association, foundation, trust, corporation, governmental agency, or other entity for the purposes set forth in this chapter.
Section 1180. Section 62A-14-105 is amended to read:
62A-14-105
. Powers and duties of the office.(1) The office shall:
(a) before January 1, 2000, develop and operate a statewide program to:
(i) educate the public about the role and function of guardians and conservators; and
(ii) serve as a guardian, conservator, or both for a ward upon appointment by a court when no other person is able and willing to do so and the office petitioned for or agreed in advance to the appointment;
(b) possess and exercise all the powers and duties specifically given to the office by virtue of being appointed as guardian or conservator of a ward, including the power to access a ward's records;
(c) review and monitor the personal and, if appropriate, financial status of each ward for whom the office has been appointed to serve as guardian or conservator;
(d) train and monitor each employee and volunteer, and monitor each contract provider to whom the office has delegated a responsibility for a ward;
(e) retain all court-delegated powers and duties for a ward;
(f) report on the personal and financial status of a ward as required by a court in accordance with Title 75, Chapter 5, Protection of Persons under Disability and their Property;
(g) handle a ward's funds in accordance with the department's trust account system;
(h) request that the department's audit plan, established pursuant to Section [63-91-401] 63I-5-401, include the requirement of an annual audit of all funds and property held by the office on behalf of wards;
(i) maintain accurate records concerning each ward, his property, and office services provided to him;
(j) make reasonable and continuous efforts to find a family member, friend, or other person to serve as a ward's guardian or conservator;
(k) after termination as guardian or conservator, distribute a ward's property in accordance with Title 75, Chapter 5, Protection of Persons under Disability and their Property;
(l) submit recommendations for changes in state law and funding to the governor and the Legislature and report to the governor and Legislature, upon request; and
(m) implement and enforce policies established by the board.
(2) The office may:
(a) petition a court pursuant to Title 75, Chapter 5, Protection of Persons under Disability and their Property, to be appointed an incapacitated person's guardian, conservator, or both after conducting a prepetition assessment under Section 62A-14-107;
(b) develop and operate a statewide program to recruit, train, supervise, and monitor volunteers to assist the office in providing guardian and conservator services;
(c) delegate one or more responsibilities for a ward to an employee, volunteer, or contract provider, except as provided in Subsection 62A-14-107(1);
(d) solicit and receive private donations to provide guardian and conservator services under this chapter; and
(e) adopt rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(i) effectuate board policy; and
(ii) carry out the office's role as guardian and conservator of wards as provided in this chapter.
Section 1181. Section 62A-14-106 is amended to read:
62A-14-106
. Board of Public Guardian Services.(1) The Board of Public Guardian Services, created in accordance with this section and Section 62A-1-105, is responsible for establishing the policy of the office in accordance with this chapter and seeing that the legislative purposes for the office are carried out.
(2) The executive director shall appoint nine members to the Board of Public Guardian Services, as follows:
(a) a member of the Board of Aging and Adult Services or designee;
(b) a member of the Board of Services for Persons with Disabilities or designee;
(c) a member of the Board of Substance Abuse and Mental Health or designee;
(d) a representative of the long-term care industry;
(e) a representative of the hospital industry;
(f) a representative of persons with disabilities;
(g) a representative of senior citizens;
(h) a physician; and
(i) an attorney with experience in guardianship and conservatorship law.
(3) (a) Except as provided in Subsection (3)(b), each member shall be appointed for a four-year term and eligible for one reappointment.
(b) Notwithstanding Subsection (3)(a), the executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years, taking into account the remaining term of board members who serve on other department boards.
(c) A board member shall continue in office until the expiration of the member's term and until a successor is appointed, which may not exceed 90 days after the formal expiration of the term.
(d) When a vacancy occurs in membership for any reason, the replacement shall be appointed for the unexpired term.
(e) The make up of the board should reflect political and geographic diversity.
(4) The board shall annually elect a chairperson from its membership. The board shall hold meetings at least once every three months. Meetings shall be held from time to time on the call of the chairperson or a majority of the board members. Five board members are necessary to constitute a quorum at any meeting and, if a quorum exists, the action of a majority of members present shall be the action of the board.
(5) (a) Board members who are not government employees may not receive compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of their official duties at rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members of the board may decline to receive per diem expenses for their services.
(6) The board shall:
(a) establish program policy for the office;
(b) establish a mechanism for systematic and regular review of existing policy and for consideration of policy changes; and
(c) set fees for the office, excluding attorneys fees, in accordance with Section [63-38-3.2] 63J-1-303.
Section 1182. Section 62A-14-108 is amended to read:
62A-14-108
. Office volunteers.(1) A person who desires to be an office volunteer shall:
(a) possess demonstrated personal characteristics of honesty, integrity, compassion, and concern for incapacitated persons; and
(b) upon request, submit information for a background check pursuant to Section 62A-1-118.
(2) An office volunteer may not receive compensation or benefits, but may be reimbursed by the office for expenses actually and reasonably incurred, consistent with Title 67, Chapter 20, Volunteer Government Workers Act.
(3) An office volunteer is immune from civil liability pursuant to [Title 63, Chapter 30b] Title 63G, Chapter 8, Immunity for Persons Performing Voluntary Services.
Section 1183. Section 62A-14-109 is amended to read:
62A-14-109
. Contract for services.(1) In accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, the office may contract with one or more providers to perform guardian and conservator duties.
(2) The office shall review and monitor the services provided by a contract provider to a ward for whom the office has been appointed guardian or conservator.
Section 1184. Section 62A-15-103 is amended to read:
62A-15-103
. Division -- Creation -- Responsibilities.(1) There is created the Division of Substance Abuse and Mental Health within the department, under the administration and general supervision of the executive director, and, with regard to its programs, under the policy direction of the board. The division is the substance abuse authority and the mental health authority for this state.
(2) The division shall:
(a) (i) educate the general public regarding the nature and consequences of substance abuse by promoting school and community-based prevention programs;
(ii) render support and assistance to public schools through approved school-based substance abuse education programs aimed at prevention of substance abuse;
(iii) promote or establish programs for the prevention of substance abuse within the community setting through community-based prevention programs;
(iv) cooperate and assist other organizations and private treatment centers for substance abusers, by providing them with essential materials for furthering programs of prevention and rehabilitation of actual and potential substance abusers; and
(v) promote or establish programs for education and certification of instructors to educate persons convicted of driving under the influence of alcohol or drugs or driving with any measurable controlled substance in the body;
(b) (i) collect and disseminate information pertaining to mental health; and
(ii) provide direction over the state hospital including approval of its budget, administrative policy, and coordination of services with local service plans;
(iii) promulgate rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to educate families concerning mental illness and promote family involvement, when appropriate, and with patient consent, in the treatment program of a family member; and
(iv) promulgate rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to direct that all individuals receiving services through local mental health authorities or the Utah State Hospital be informed about and, if desired, provided assistance in completion of a declaration for mental health treatment in accordance with Section 62A-15-1002;
(c) (i) consult and coordinate with local substance abuse authorities and local mental health authorities regarding programs and services;
(ii) provide consultation and other assistance to public and private agencies and groups working on substance abuse and mental health issues;
(iii) promote and establish cooperative relationships with courts, hospitals, clinics, medical and social agencies, public health authorities, law enforcement agencies, education and research organizations, and other related groups;
(iv) promote or conduct research on substance abuse and mental health issues, and submit to the governor and the Legislature recommendations for changes in policy and legislation;
(v) receive, distribute, and provide direction over public funds for substance abuse and mental health services;
(vi) monitor and evaluate programs provided by local substance abuse authorities and local mental health authorities;
(vii) examine expenditures of any local, state, and federal funds;
(viii) monitor the expenditure of public funds by:
(A) local substance abuse authorities;
(B) local mental health authorities; and
(C) in counties where they exist, the private contract provider that has an annual or otherwise ongoing contract to provide comprehensive substance abuse or mental health programs or services for the local substance abuse authority or local mental health authorities;
(ix) contract with local substance abuse authorities and local mental health authorities to provide a comprehensive continuum of services in accordance with board and division policy, contract provisions, and the local plan;
(x) contract with private and public entities for special statewide or nonclinical services according to board and division policy;
(xi) review and approve each local substance abuse authority's plan and each local mental health authority's plan in order to ensure:
(A) a statewide comprehensive continuum of substance abuse services;
(B) a statewide comprehensive continuum of mental health services; and
(C) appropriate expenditure of public funds;
(xii) review and make recommendations regarding each local substance abuse authority's contract with its provider of substance abuse programs and services and each local mental health authority's contract with its provider of mental health programs and services to ensure compliance with state and federal law and policy;
(xiii) monitor and ensure compliance with board and division policy and contract requirements; and
(xiv) withhold funds from local substance abuse authorities, local mental health authorities, and public and private providers for contract noncompliance, failure to comply with division directives regarding the use of public funds, or for misuse of public funds or monies;
(d) assure that the requirements of this part are met and applied uniformly by local substance abuse authorities and local mental health authorities across the state;
(e) require each local substance abuse authority and each local mental health authority to submit its plan to the division by May 1 of each year;
(f) conduct an annual program audit and review of each local substance abuse authority in the state and its contract provider and each local mental health authority in the state and its contract provider, including:
(i) a review and determination regarding whether:
(A) public funds allocated to local substance abuse authorities and local mental health authorities are consistent with services rendered and outcomes reported by them or their contract providers; and
(B) each local substance abuse authority and each local mental health authority is exercising sufficient oversight and control over public funds allocated for substance abuse and mental health programs and services; and
(ii) items determined by the division to be necessary and appropriate;
(g) by July 1 of each year, provide to the Health and Human Services Interim Committee and the Health and Human Services Appropriations Subcommittee a written report that includes:
(i) the annual audit and review;
(ii) the financial expenditures of each local substance abuse authority and its contract provider and each local mental health authority and its contract provider;
(iii) the status of the compliance of each local authority and its contract provider with its plan, state statutes, and the provisions of the contract awarded; and
(iv) whether audit guidelines established under Section 62A-15-110 and Subsection 67-3-1(10) provide the division with sufficient criteria and assurances of appropriate expenditures of public funds; and
(h) if requested by the Health and Human Services Interim Committee or the Health and Human Services Appropriations Subcommittee, provide an oral report as requested.
(3) (a) The division may refuse to contract with and may pursue its legal remedies against any local substance abuse authority or local mental health authority that fails, or has failed, to expend public funds in accordance with state law, division policy, contract provisions, or directives issued in accordance with state law.
(b) The division may withhold funds from a local substance abuse authority or local mental health authority if the authority's contract with its provider of substance abuse or mental health programs or services fails to comply with state and federal law or policy.
(4) Before reissuing or renewing a contract with any local substance abuse authority or local mental health authority, the division shall review and determine whether the local substance abuse authority or local mental health authority is complying with its oversight and management responsibilities described in Sections 17-43-201, 17-43-203, 17-43-303, and 17-43-309. Nothing in this Subsection (4) may be used as a defense to the responsibility and liability described in Section 17-43-303 and to the responsibility and liability described in Section 17-43-203.
(5) In carrying out its duties and responsibilities, the division may not duplicate treatment or educational facilities that exist in other divisions or departments of the state, but shall work in conjunction with those divisions and departments in rendering the treatment or educational services that those divisions and departments are competent and able to provide.
(6) (a) The division may accept in the name of and on behalf of the state donations, gifts, devises, or bequests of real or personal property or services to be used as specified by the donor.
(b) Those donations, gifts, devises, or bequests shall be used by the division in performing its powers and duties. Any money so obtained shall be considered private nonlapsing funds and shall be deposited into an interest-bearing restricted special revenue fund to be used by the division for substance abuse or mental health services. The state treasurer may invest the fund and all interest shall remain with the fund.
(7) The division shall annually review with each local substance abuse authority and each local mental health authority the authority's statutory and contract responsibilities regarding:
(a) the use of public funds;
(b) oversight responsibilities regarding public funds; and
(c) governance of substance abuse and mental health programs and services.
(8) The Legislature may refuse to appropriate funds to the division upon the division's failure to comply with the provisions of this part.
Section 1185. Section 62A-15-105 is amended to read:
62A-15-105
. Authority and responsibilities of board.The board is the policymaking body for the division and for programs funded with state and federal moneys under Sections 17-43-201, 17-43-301, 17-43-304, and 62A-15-110. The board shall:
(1) in establishing policy, seek input from local substance abuse authorities, local mental health authorities, consumers, providers, advocates, division staff, and other interested parties as determined by the board;
(2) establish, by rule, minimum standards for local substance abuse authorities and local mental health authorities;
(3) establish, by rule, procedures for developing its policies which ensure that local substance abuse authorities and local mental health authorities are given opportunity to comment and provide input on any new policy of the board or proposed changes in existing policy of the board;
(4) provide a mechanism for review of its existing policy, and for consideration of policy changes that are proposed by local substance abuse authorities or local mental health authorities;
(5) develop program policies, standards, rules, and fee schedules for the division; and
(6) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules approving the form and content of substance abuse treatment, educational series, screening, and assessment that are described in Section 41-6a-501.
Section 1186. Section 62A-15-401 is amended to read:
62A-15-401
. Alcohol training and education seminar.(1) As used in this part:
(a) "Instructor" means a person that directly provides the instruction during an alcohol training and education seminar for a seminar provider.
(b) "Licensee" means a person who is:
(i) (A) a new or renewing licensee under Title 32A, Alcoholic Beverage Control Act; and
(B) engaged in the retail sale of alcoholic beverages for consumption on the premises of the licensee; or
(ii) a business that is:
(A) a new or renewing licensee licensed by a city, town, or county; and
(B) engaged in the retail sale of beer for consumption off the premises of the licensee.
(c) "Off-premise beer retailer" is as defined in Section 32A-1-105.
(d) "Seminar provider" means a person other than the division who provides an alcohol training and education seminar meeting the requirements of this section.
(2) (a) This section applies to an individual who, as defined by the board by rule:
(i) manages operations at the premises of a licensee engaged in the retail sale of alcoholic beverages for consumption on the premises of the licensee;
(ii) supervises the serving of alcoholic beverages to a customer for consumption on the premises of a licensee;
(iii) serves alcoholic beverages to a customer for consumption on the premises of a licensee;
(iv) directly supervises the sale of beer to a customer for consumption off the premises of an off-premise beer retailer licensee; or
(v) sells beer to a customer for consumption off the premises of an off-premise beer retailer licensee.
(b) If the individual does not have a valid certificate that the individual has completed an alcohol training and education seminar, an individual described in Subsection (2)(a) shall:
(i) (A) complete an alcohol training and education seminar within 30 days of the following if the individual is described in Subsections (2)(a)(i) through (iii):
(I) if the individual is an employee, the day the individual begins employment;
(II) if the individual is an independent contractor, the day the individual is first hired; or
(III) if the individual holds an ownership interest in the licensee, the day that the individual first engages in an activity that would result in that individual being required to complete an alcohol training and education seminar; or
(B) complete an alcohol training and education seminar within the time periods specified in Subsection 32A-10-103(1) if the individual is described in Subsections (2)(a)(iv) and (v); and
(ii) pay a fee:
(A) to the seminar provider; and
(B) that is equal to or greater than the amount established under Subsection (4)(h).
(c) An individual shall have a valid certificate that the individual completed an alcohol training and education seminar within the time period provided in this Subsection (2) to engage in an activity described in Subsection (2)(a).
(d) A certificate that an individual has completed an alcohol training and education seminar is valid for:
(i) three years from the day on which the certificate is issued for an individual described in Subsection (2)(a)(i), (ii), or (iii); and
(ii) five years from the day on which the certificate is issued for an individual described in Subsection (2)(a)(iv) or (v).
(3) (a) A licensee may not permit an individual who is not in compliance with Subsection (2) to:
(i) serve or supervise the serving of alcoholic beverages to a customer for consumption on the premises of the licensee;
(ii) engage in any activity that would constitute managing operations at the premises of a licensee that engages in the retail sale of alcoholic beverages for consumption on the premises of the licensee;
(iii) directly supervise the sale of beer to a customer for consumption off the premises of an off-premise beer retailer licensee; or
(iv) sell beer to a customer for consumption off the premises of an off-premise beer retailer licensee.
(b) A licensee that violates Subsection (3)(a) is subject to Section 32A-1-401.
(4) The division shall:
(a) (i) provide alcohol training and education seminars; or
(ii) certify one or more seminar providers;
(b) establish the curriculum for an alcohol training and education seminar that includes the following subjects:
(i) (A) alcohol as a drug; and
(B) alcohol's effect on the body and behavior;
(ii) recognizing the problem drinker or signs of intoxication;
(iii) an overview of state alcohol laws related to responsible beverage sale or service, as determined in consultation with the Department of Alcoholic Beverage Control;
(iv) dealing with the problem customer, including ways to terminate sale or service; and
(v) for those supervising or engaging in the retail sale of alcoholic beverages for consumption on the premises of a licensee, alternative means of transportation to get the customer safely home;
(c) recertify each seminar provider every three years;
(d) monitor compliance with the curriculum described in Subsection (4)(b);
(e) maintain for at least five years a record of every person who has completed an alcohol training and education seminar;
(f) provide the information described in Subsection (4)(e) on request to:
(i) the Department of Alcoholic Beverage Control;
(ii) law enforcement; or
(iii) a person licensed by the state or a local government to sell alcoholic beverages;
(g) provide the Department of Alcoholic Beverage Control on request a list of any seminar provider certified by the division; and
(h) establish a fee amount for each person attending an alcohol training and education seminar that is sufficient to offset the division's cost of administering this section.
(5) The board shall by rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(a) define what constitutes under this section an individual who:
(i) manages operations at the premises of a licensee engaged in the retail sale of alcoholic beverages for consumption on the premises of the licensee;
(ii) supervises the serving of alcoholic beverages to a customer for consumption on the premises of a licensee;
(iii) serves alcoholic beverages to a customer for consumption on the premises of a licensee;
(iv) directly supervises the sale of beer to a customer for consumption off the premises of an off-premise retailer beer licensee; or
(v) sells beer to a customer for consumption off the premises of an off-premise beer retailer licensee;
(b) establish criteria for certifying and recertifying a seminar provider; and
(c) establish guidelines for the manner in which an instructor provides an alcohol education and training seminar.
(6) A seminar provider shall:
(a) obtain recertification by the division every three years;
(b) ensure that an instructor used by the seminar provider:
(i) follows the curriculum established under this section; and
(ii) conducts an alcohol training and education seminar in accordance with the guidelines established by rule;
(c) ensure that any information provided by the seminar provider or instructor of a seminar provider is consistent with:
(i) the curriculum established under this section; and
(ii) this section;
(d) provide the division with the names of all persons who complete an alcohol training and education seminar provided by the seminar provider;
(e) (i) collect a fee for each person attending an alcohol training and education seminar in accordance with Subsection (2); and
(ii) forward to the division the portion of the fee that is equal to the amount described in Subsection (4)(h); and
(f) issue a certificate to an individual that completes an alcohol training and education seminar provided by the seminar provider.
(7) (a) If after a hearing conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division finds that a seminar provider violates this section or that an instructor of the seminar provider violates this section, the division may:
(i) suspend the certification of the seminar provider for a period not to exceed 90 days;
(ii) revoke the certification of the seminar provider;
(iii) require the seminar provider to take corrective action regarding an instructor; or
(iv) prohibit the seminar provider from using an instructor until such time that the seminar provider establishes to the satisfaction of the division that the instructor is in compliance with Subsection (6)(b).
(b) The division may certify a seminar provider whose certification is revoked:
(i) no sooner than 90 days from the date the certification is revoked; and
(ii) if the seminar provider establishes to the satisfaction of the division that the seminar provider will comply with this section.
Section 1187. Section 62A-15-704 is amended to read:
62A-15-704
. Invasive treatment -- Due process proceedings.(1) For purposes of this section, "invasive treatment" means treatment in which a constitutionally protected liberty or privacy interest may be affected, including antipsychotic medication, electroshock therapy, and psychosurgery.
(2) The requirements of this section apply to all children receiving services or treatment from a local mental health authority, its designee, or its provider regardless of whether a local mental health authority has physical custody of the child or the child is receiving outpatient treatment from the local authority, its designee, or provider.
(3) (a) The division shall promulgate rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing due process procedures for children prior to any invasive treatment as follows:
(i) with regard to antipsychotic medications, if either the parent or child disagrees with that treatment, a due process proceeding shall be held in compliance with the procedures established under this Subsection (3);
(ii) with regard to psychosurgery and electroshock therapy, a due process proceeding shall be conducted pursuant to the procedures established under this Subsection (3), regardless of whether the parent or child agree or disagree with the treatment; and
(iii) other possible invasive treatments may be conducted unless either the parent or child disagrees with the treatment, in which case a due process proceeding shall be conducted pursuant to the procedures established under this Subsection (3).
(b) In promulgating the rules required by Subsection (3)(a), the division shall consider the advisability of utilizing an administrative law judge, court proceedings, a neutral and detached fact finder, and other methods of providing due process for the purposes of this section. The division shall also establish the criteria and basis for determining when invasive treatment should be administered.
Section 1188. Section 62A-15-707 is amended to read:
62A-15-707
. Confidentiality of information and records -- Exceptions -- Penalty.(1) Notwithstanding the provisions of Sections [63-2-101] 63G-2-101 through [63-2-909] 63A-12-109, Government Records Access Management Act, all certificates, applications, records, and reports made for the purpose of this part that directly or indirectly identify a patient or former patient or an individual whose commitment has been sought under this part, shall be kept confidential and may not be disclosed by any person except as follows:
(a) the individual identified consents after reaching 18 years of age;
(b) the child's parent or legal guardian consents;
(c) disclosure is necessary to carry out any of the provisions of this part; or
(d) a court may direct, upon its determination that disclosure is necessary for the conduct of proceedings before it, and that failure to make the disclosure would be contrary to the public interest.
(2) A person who violates any provision of this section is guilty of a class B misdemeanor.
Section 1189. Section 62A-15-902 is amended to read:
62A-15-902
. Design and operation -- Security.(1) The forensic mental health facility is a secure treatment facility.
(2) (a) The forensic mental health facility accommodates the following populations:
(i) prison inmates displaying mental illness, as defined in Section 62A-15-602, necessitating treatment in a secure mental health facility;
(ii) criminally adjudicated persons found guilty and mentally ill or guilty and mentally ill at the time of the offense undergoing evaluation for mental illness under Title 77, Chapter 16a, Commitment and Treatment of Mentally Ill Persons;
(iii) criminally adjudicated persons undergoing evaluation for competency or found guilty and mentally ill or guilty and mentally ill at the time of the offense under Title 77, Chapter 16a, Commitment and Treatment of Mentally Ill Persons, also have mental retardation;
(iv) persons undergoing evaluation for competency or found by a court to be incompetent to proceed in accordance with Title 77, Chapter 15, Inquiry Into Sanity of Defendant, or not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
(v) persons who are civilly committed to the custody of a local mental health authority in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health Facilities, and who may not be properly supervised by the Utah State Hospital because of a lack of necessary security, as determined by the superintendent or his designee; and
(vi) persons ordered to commit themselves to the custody of the Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of sentence pursuant to Title 77, Chapter 18, The Judgment.
(b) Placement of an offender in the forensic mental health facility under any category described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the offender's status as established by the court at the time of adjudication.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules providing for the allocation of beds to the categories described in Subsection (2)(a).
(3) The department shall:
(a) own and operate the forensic mental health facility;
(b) provide and supervise administrative and clinical staff; and
(c) provide security staff who are trained as psychiatric technicians.
(4) Pursuant to Subsection 62A-15-603(3) the executive director shall designate individuals to perform security functions for the state hospital.
Section 1190. Section 63-11-12 is amended to read:
63-11-12
. Board of Parks and Recreation -- Creation -- Functions.There is created within the Department of Natural Resources a Board of Parks and Recreation which, except as otherwise provided in this act, shall assume all of the policy-making functions, powers, duties, rights and responsibilities of the Utah State Park and Recreation Commission, together with all functions, powers, duties, rights and responsibilities granted to the Board of Parks and Recreation by this act. The Board of Parks and Recreation shall be the policy-making body of the Division of Parks and Recreation. Except as otherwise provided in this act, whenever reference is made in Title 63, or any other provision of law, to the Utah State Park and Recreation Commission, it shall be construed as referring to the Board of Parks and Recreation where such reference pertains to policy-making functions, powers, duties, rights and responsibilities; but in all other instances such reference shall be construed as referring to the Division of Parks and Recreation.
Section 1191. Section 63-11-17 is amended to read:
63-11-17
. Powers and duties of Board and Division of Parks and Recreation.(1) (a) The board may make rules:
(i) governing the use of the state park system;
(ii) to protect state parks and their natural and cultural resources from misuse or damage, including watersheds, plants, wildlife, and park amenities; and
(iii) to provide for public safety and preserve the peace within state parks.
(b) To accomplish the purposes stated in Subsection (1)(a), the board may enact rules that:
(i) close or partially close state parks; or
(ii) establish use or access restrictions within state parks.
(c) Rules made under Subsection (1) may not have the effect of preventing the transfer of livestock along a livestock highway established in accordance with Section 72-3-112.
(2) The Division of Wildlife Resources shall retain the power and jurisdiction conferred upon it by law within state parks and on property controlled by the Division of Parks and Recreation with reference to fish and game.
(3) The Division of Parks and Recreation shall permit multiple use of state parks and property controlled by it for purposes such as grazing, fishing and hunting, mining, and the development and utilization of water and other natural resources.
(4) (a) The division may acquire real and personal property in the name of the state by all legal and proper means, including purchase, gift, devise, eminent domain, lease, exchange, or otherwise, subject to the approval of the executive director and the governor.
(b) As used in this section, "real property" includes land under water, upland, and all other property commonly or legally defined as real property.
(c) In acquiring any real or personal property, the credit of the state may not be pledged without the consent of the legislature.
(5) (a) Before acquiring any real property, the division shall notify the county legislative body of the county where the property is situated of its intention to acquire the property.
(b) If the county legislative body requests a hearing within ten days of receipt of the notice, the board shall hold a public hearing in the county concerning the matter.
(6) Acceptance of gifts or devises of land or other property shall be at the discretion of the division, subject to the approval of the executive director of the Department of Natural Resources and the governor.
(7) Acquisition of property by eminent domain shall be in the manner authorized by Title 78, Chapter 34, Eminent Domain.
(8) (a) The Division of Parks and Recreation may make charges for special services and use of facilities, the income from which shall be available for park and recreation purposes.
(b) The division may conduct and operate those services necessary for the comfort and convenience of the public.
(c) The board shall adopt appropriate rules governing the collection of charges under this Subsection (8).
(9) (a) The division may lease or rent concessions of all lawful kinds and nature in state parks and property to persons, partnerships, and corporations for a valuable consideration upon the recommendation of the board.
(b) The division shall comply with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, in selecting concessionaires.
(10) The division shall proceed without delay to negotiate with the federal government concerning the Weber Basin and other recreation and reclamation projects.
Section 1192. Section 63-11a-503 is amended to read:
63-11a-503
. Centennial Nonmotorized Paths and Trail Crossings Program -- Eligibility and distribution -- Rulemaking.(1) There is created the Centennial Nonmotorized Paths and Trail Crossings Program.
(2) The program shall be funded from the following sources:
(a) appropriations made to the program by the Legislature; and
(b) contributions from other public and private sources for deposit into the program.
(3) All monies appropriated to the Centennial Nonmotorized Paths and Trail Crossings Program are nonlapsing.
(4) Subject to Subsection (5), the division, upon the recommendation of the council, shall authorize the use of program monies for state, county, and municipal projects that:
(a) provide continuous and safe routes, paths, or trails for equestrian riders, pedestrians, bicyclists, and other human powered vehicle operators; and
(b) provide access past major highways and other physical impediments that limit safe equestrian riders, pedestrian, bicyclist, and other human powered vehicles.
(5) The program monies authorized under Subsection (4) are subject to:
(a) monies available in the program;
(b) the provisions of this section; and
(c) rules made under Subsection (8).
(6) (a) The state, a county, or a municipality may apply to the division under this section for monies from the program for a specified project.
(b) (i) Program monies may not exceed 50% of the total costs for any project. The remaining project costs must be provided by the state, the county, or the municipality that applies for program monies as matching funds.
(ii) Matching funds may be provided from any available source, including grants and other private or public sources.
(7) A single project may not receive more than 50% of the total program monies available in a fiscal year except upon the unanimous recommendation of the council.
(8) (a) The division shall administer the program.
(b) The Board of Parks and Recreation shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing the:
(i) prioritizing and awarding of program monies by the division; and
(ii) procedures for the state, a county, or a municipality to apply for program monies for projects.
Section 1193. Section 63-34-3.1 is amended to read:
63-34-3.1
. Procedures -- Adjudicative proceedings.The Department of Natural Resources and the divisions, boards, and councils referred to in Section 63-34-3 shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 1194. Section 63-34-5 (Contingently Effective) is amended to read:
63-34-5 (Contingently Effective)
. Executive director of Department of Natural Resources -- Appointment -- Removal -- Compensation -- Responsibilities -- Department fee schedule.(1) (a) The chief administrative officer of the Department of Natural Resources shall be an executive director appointed by the governor with the consent of the Senate.
(b) The executive director may be removed at the will of the governor.
(c) The executive director shall receive a salary established by the governor within the salary range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
(2) The executive director shall:
(a) administer and supervise the Department of Natural Resources and provide for coordination and cooperation among the boards, divisions, and offices of the department;
(b) approve the budget of each board and division;
(c) participate in regulatory proceedings as appropriate to the functions and duties of the department;
(d) ensure that funds appropriated to the Department of Natural Resources from the Wetlands Protection Account created by Section 63-34-3.2 are expended in accordance with Subsection 63-34-3.2(3);
(e) ensure that funds appropriated to the Department of Natural Resources from the Recreational Trails and Streams Enhancement and Protection Account created by Section 63-34-3.3 are expended in accordance with Subsection 63-34-3.3(3);
(f) report at the end of each fiscal year to the governor on department activities, and activities of the boards and divisions; and
(g) perform other duties as provided by the Legislature by statute.
(3) (a) Unless otherwise provided by statute, the department may adopt a schedule of fees assessed for services provided by the department.
(b) A fee described in Subsection (3)(a) shall:
(i) be reasonable and fair; and
(ii) reflect the cost of services provided.
(c) Each fee established under this Subsection (3) shall be submitted to and approved by the Legislature as part of the department's annual appropriations request.
(d) The department may not charge or collect any fee established under this Subsection (3) without approval of the Legislature.
Section 1195. Section 63-34-15 is amended to read:
63-34-15
. Outdoor recreation facilities -- Participation in federal programs.(1) The Legislature finds that the state of Utah and its political subdivisions should enjoy the benefits of federal assistance programs for the planning and development of the outdoor recreation resources of the state, including the acquisition of lands and waters and interests in land and water.
(2) To accomplish those purposes, the executive director of the Department of Natural Resources may, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, seek federal grants, loans, or participation in federal programs.
Section 1196. Section 63-34-17 is amended to read:
63-34-17
. Outdoor recreation facilities -- Powers of executive director to obtain federal aid.The executive director of natural resources may, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, apply to any appropriate agency or officer of the United States for participation in or the receipt of aid from any federal program respecting outdoor recreation. He may, in cooperation with other state agencies and after obtaining the approvals required by [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, enter into contracts and agreements with the United States or any appropriate agency thereof, keep financial and other records relating thereto, and furnish to appropriate officials and agencies of the United States such reports and information as may be reasonably necessary to enable such officials and agencies to perform their duties under such programs. In connection with obtaining the benefits of any such program, the executive director of natural resources shall coordinate the department's activities with and represent the interests of all agencies and subdivisions of the state having interests in the planning, development, and maintenance of outdoor recreation resources and facilities.
Section 1197. Section 63-73-4 is amended to read:
63-73-4
. Responsibilities of board.The board has the following responsibilities:
(1) establish and review policies, programs, and priorities;
(2) review and recommend budgets;
(3) assess the needs of the community with regard to development and use of geologic resources;
(4) keep the director advised concerning survey policies; and
(5) enact rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act, that are necessary to carry out the purposes of this chapter.
Section 1198. Section 63-73-6 is amended to read:
63-73-6
. Powers and duties of survey.(1) The survey shall:
(a) assist and advise state and local governmental agencies and state educational institutions on geologic, paleontologic, and mineralogic subjects;
(b) collect and distribute reliable information regarding the mineral industry and mineral resources, topography, paleontology, and geology of the state;
(c) survey the geology of the state, including mineral occurrences and the ores of metals, energy resources, industrial minerals and rocks, mineral-bearing waters, and surface and ground water resources, with special reference to their economic contents, values, uses, kind, and availability in order to facilitate their economic use;
(d) investigate the kind, amount, and availability of mineral substances contained in lands owned and controlled by the state, to contribute to the most effective and beneficial administration of these lands for the state;
(e) determine and investigate areas of geologic and topographic hazards that could affect the safety of, or cause economic loss to, the citizens of the state;
(f) assist local and state government agencies in their planning, zoning, and building regulation functions by publishing maps, delineating appropriately wide special earthquake risk areas, and, at the request of state agencies or other governmental agencies, review the siting of critical facilities;
(g) cooperate with state agencies, political subdivisions of the state, quasi-governmental agencies, federal agencies, schools of higher education, and others in fields of mutual concern, which may include field investigations and preparation, publication, and distribution of reports and maps;
(h) collect and preserve data pertaining to mineral resource exploration and development programs and construction activities, such as claim maps, location of drill holes, location of surface and underground workings, geologic plans and sections, drill logs, and assay and sample maps, including the maintenance of a sample library of cores and cuttings;
(i) study and analyze other scientific, economic, or aesthetic problems as, in the judgment of the board, should be undertaken by the survey to serve the needs of the state and to support the development of natural resources and utilization of lands within the state;
(j) prepare, publish, distribute, and sell maps, reports, and bulletins, embodying the work accomplished by the survey, directly or in collaboration with others, and collect and prepare exhibits of the geological and mineral resources of this state and interpret their significance;
(k) collect, maintain, and preserve data and information in order to accomplish the purposes of this section and act as a repository for information concerning the geology of this state;
(l) stimulate research, study, and activities in the field of paleontology;
(m) mark, protect, and preserve critical paleontological sites;
(n) collect, preserve, and administer critical paleontological specimens until they are placed in a repository or curation facility;
(o) administer critical paleontological site excavation records;
(p) edit and publish critical paleontological records and reports; and
(q) by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, seek federal grants, loans, or participation in federal programs, and, in accordance with applicable federal program guidelines, administer federally funded state programs regarding:
(i) renewable energy;
(ii) energy efficiency; and
(iii) energy conservation.
(2) (a) The survey may maintain as confidential, and not as a public record, information provided to the survey by any source.
(b) The board shall adopt rules in order to determine whether to accept such information and to maintain the confidentiality of the accepted information.
(c) The survey shall maintain information received from any source at the level of confidentiality assigned to it by the source.
(3) Upon approval of the board, the survey shall undertake other activities consistent with Subsection (1).
(4) (a) Subject to the authority granted to the department, the survey may enter into cooperative agreements with the entities specified in Subsection (1)(g), if approved by the board, and may accept or commit allocated or budgeted funds in connection with those agreements.
(b) The survey may undertake joint projects with private entities if:
(i) the action is approved by the board;
(ii) the projects are not inconsistent with the state's objectives; and
(iii) the results of the projects are available to the public.
Section 1199. Section 63A-1-105.5 is amended to read:
63A-1-105.5
. Rulemaking authority of executive director.The executive director shall, upon the recommendation of the appropriate division directors, make rules consistent with state and federal law, and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing:
(1) administrative services; and
(2) the provision and use of administrative services furnished to state agencies and institutions.
Section 1200. Section 63A-1-112 is amended to read:
63A-1-112
. Certificates of participation -- Legislative approval required -- Definition -- Exception.(1) (a) Certificates of participation for either capital facilities or capital improvements may not be issued by the department, its subdivisions, or any other state agency after July 1, 1985, without prior legislative approval.
(b) Nothing in this section affects the rights and obligations surrounding certificates of participation that were issued prior to July 1, 1985.
(2) (a) As used in this section, "certificate of participation" means an instrument that acts as evidence of the certificate holder's undivided interest in property being lease-purchased, the payment on which is subject to appropriation by the Legislature.
(b) (i) For purposes of this Subsection (2)(b), "energy savings agreement" has the meaning as defined in Section [63-9-67] 63A-5-701.
(ii) "Certificate of participation" does not include an energy savings agreement.
Section 1201. Section 63A-1-114 is amended to read:
63A-1-114
. Rate Committee -- Membership -- Duties.(1) (a) There is created a Rate Committee which shall consist of:
(i) the director of the Governor's Office of Planning and Budget, or a designee;
(ii) the executive directors of three state agencies that use services and pay rates to one of the department internal service funds, or their designee, appointed by the governor for a two-year term;
(iii) the executive director of the Department of Administrative Services, or a designee;
(iv) the director of the Division of Finance, or a designee; and
(v) the chief information officer.
(b) (i) The committee shall elect a chair from its members.
(ii) Members of the committee who are state government employees and who do not receive salary, per diem, or expenses from their agency for their service on the committee shall receive no compensation, benefits, per diem, or expenses for the members' service on the committee.
(c) The Department of Administrative Services shall provide staff services to the committee.
(2) (a) The internal service funds managed by the following divisions shall submit to the committee a proposed rate and fee schedule for services rendered by the divisions to an executive branch entity or an entity that subscribes to services rendered by the division, the:
(i) Division of Facilities Construction and Management;
(ii) Division of Fleet Operations;
(iii) Division of Purchasing and General Services; and
(iv) Division of Risk Management.
(b) The committee shall:
(i) conduct meetings in accordance with Title 52, Chapter 4, Open and Public Meetings Act;
(ii) review the proposed rate and fee schedules and may approve, increase, or decrease the rate and fee;
(iii) recommend a proposed rate and fee schedule for each internal service fund to:
(A) the Governor's Office of Planning and Budget; and
(B) the legislative appropriations subcommittees that, in accordance with Section [63-38-3.5] 63J-1-306, approve the internal service fund agency's rates, fees, and budget; and
(iv) review and approve, increase or decrease an interim rate, fee, or amount when an internal service fund agency begins a new service or introduces a new product between annual general sessions of the Legislature.
(c) The committee may in accordance with Subsection [63-38-3.5] 63J-1-306(4) decrease a rate, fee, or amount that has been approved by the Legislature.
Section 1202. Section 63A-2-103 is amended to read:
63A-2-103
. General services provided -- Subscription by state departments, state agencies, and certain local governmental entities -- Fee schedule.(1) (a) The director of the Division of Purchasing and General Services shall operate, manage, and maintain:
(i) a central mailing service; and
(ii) an electronic central store system for procuring goods and services.
(b) The director may establish microfilming, duplicating, printing, addressograph, and other central services.
(2) (a) Each state department and agency shall subscribe to all of the services described in Subsection (1), unless the director delegates the director's authority to a department or agency under Section 63A-2-104.
(b) An institution of higher education, school district, or political subdivision of the state may subscribe to one or more of the services described in Subsection (1).
(3) The director shall:
(a) prescribe a schedule of fees to be charged for all services provided by the division to any department or agency after the director:
(i) submits the proposed rate, fees, or other amounts for services provided by the division's internal service fund to the Rate Committee established in Section 63A-1-114; and
(ii) obtains the approval of the Legislature, as required by Sections [63-38-3.2] 63J-1-303 and [63-38-3.5] 63J-1-306;
(b) when practicable, ensure that the fees are approximately equal to the cost of providing the services; and
(c) conduct a market analysis by July 1, 2005, and periodically thereafter of fees, which analysis shall include comparison of the division's rates with the fees of other public or private sector providers where comparable services and rates are reasonably available.
Section 1203. Section 63A-3-306 is amended to read:
63A-3-306
. Hearing examiner -- Procedures -- Adjudicative proceedings.(1) (a) The hearing shall be held before a hearing examiner designated by the state.
(b) The hearing examiner may not be an officer or employee of the entity in state government responsible for collecting or administering the account.
(2) The state shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1204. Section 63A-4-102 is amended to read:
63A-4-102
. Risk manager -- Powers.(1) The risk manager may:
(a) enter into contracts;
(b) purchase insurance;
(c) adjust, settle, and pay claims;
(d) pay expenses and costs;
(e) study the risks of all state agencies and properties;
(f) issue certificates of coverage to state agencies for any risks covered by Risk Management Fund;
(g) make recommendations about risk management and risk reduction strategies to state agencies;
(h) in consultation with the attorney general, prescribe insurance and liability provisions to be included in all state contracts;
(i) review agency building construction, major remodeling plans, agency program plans, and make recommendations to the agency about needed changes to address risk considerations;
(j) attend agency planning and management meetings when necessary;
(k) review any proposed legislation and communicate with legislators and legislative committees about the liability or risk management issues connected with any legislation; and
(l) solicit any needed information about agency plans, agency programs, or agency risks necessary to perform his responsibilities under this part.
(2) (a) The risk manager may expend monies from the Risk Management Fund to procure and provide coverage to all state agencies and their indemnified employees, except those agencies or employees specifically exempted by statute.
(b) The risk manager shall apportion the costs of that coverage according to the requirements of this part.
(3) Before charging a rate, fee, or other amount to an executive branch agency, or to a subscriber of services other than an executive branch agency, the director shall:
(a) submit the proposed rates, fees, or other amount and cost analysis to the Rate Committee established in Section 63A-1-114; and
(b) obtain the approval of the Legislature as required by Section [63-38-3.5] 63J-1-306.
(4) The director shall conduct a market analysis by July 1, 2005, and periodically thereafter, of proposed rates and fees, which analysis shall include a comparison of the division's rates and fees with the fees of other public or private sector providers where comparable services and rates are reasonably available.
Section 1205. Section 63A-4-204 is amended to read:
63A-4-204
. School district participation in Risk Management Fund.(1) (a) For the purpose of this section, action by a public school district shall be taken upon resolution by a majority of the members of the school district's board of education.
(b) (i) Upon approval by the state risk manager and the board of education of the school district, a public school district may participate in the Risk Management Fund and may permit a foundation established under Section 53A-4-205 to participate in the Risk Management Fund.
(ii) Upon approval by the state risk manager and the State Board of Education, a state public education foundation may participate in the Risk Management Fund.
(c) Subject to any cancellation or other applicable coverage provisions, either the state risk manager or the public school district may terminate participation in the fund.
(2) The state risk manager shall contract for all insurance, legal, loss adjustment, consulting, loss control, safety, and other related services necessary to support the insurance program provided to a participating public school district, except that all supporting legal services are subject to the prior approval of the state attorney general.
(3) (a) The state risk manager shall treat each participating public school district as a state agency when participating in the Risk Management Fund.
(b) Each public school district participating in the fund shall comply with the provisions of this part that affect state agencies.
(4) (a) By no later than March 31 of each year, the risk manager shall prepare, in writing, the information required by Subsection (4)(b) regarding the coverage against legal liability provided a school district employee of this state:
(i) by the Risk Management Fund;
(ii) under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah; and
(iii) under [Title 63, Chapter 30a] Title 52, Chapter 6, Reimbursement of Legal Fees and Costs to Officers and Employees.
(b) (i) The information described in Subsection (4)(a) shall include:
(A) the eligibility requirements, if any, to receive the coverage;
(B) the basic nature of the coverage for a school district employee, including what is not covered; and
(C) whether the coverage is primary or in excess of any other coverage the risk manager knows is commonly available to a school district employee in this state.
(ii) The information described in Subsection (4)(a) may include:
(A) comparisons the risk manager considers beneficial to a school district employee between:
(I) the coverage described in Subsection (4)(a); and
(II) other coverage the risk manager knows is commonly available to a school district employee in this state; and
(B) any other information the risk manager considers appropriate.
(c) The risk manager shall provide the information prepared under this Subsection (4) to each school district that participates in the Risk Management Fund.
(d) A school district that participates in the Risk Management Fund shall provide a copy of the information described in Subsection (4)(c) to each school district employee within the school district:
(i) at the time an employee enters into an employment contract and signs a separate acknowledgment of legal liability protection in accordance with Section 53A-3-411; or
(ii) if the school district does not provide the information to the employee pursuant to Subsection (4)(d)(i):
(A) within 30 days of the day the school district employee is hired by the school district; and
(B) by no later than April 15 of each calendar year.
Section 1206. Section 63A-4-204.5 is amended to read:
63A-4-204.5
. Charter school participation in Risk Management Fund.(1) A charter school established under the authority of Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act, may participate in the Risk Management Fund upon the approval of the state risk manager and the governing body of the charter school.
(2) (a) For purposes of administration, the state risk manager shall treat each charter school participating in the fund as a state agency.
(b) Each charter school participating in the fund shall comply with the provisions of this part that affect state agencies.
(3) (a) By no later than March 31 of each year, the risk manager shall prepare, in writing, the information required by Subsection (3)(b) regarding the coverage against legal liability provided a charter school employee of this state:
(i) by the Risk Management Fund;
(ii) under [Title 63, Chapter 30d] Title 63G, Chapter 7, Utah Governmental Immunity Act of Utah; and
(iii) under [Title 63, Chapter 30a] Title 52, Chapter 6, Reimbursement of Legal Fees and Costs to Officers and Employees.
(b) (i) The information described in Subsection (3)(a) shall include:
(A) the eligibility requirements, if any, to receive the coverage;
(B) the basic nature of the coverage for a charter school employee, including what is not covered; and
(C) whether the coverage is primary or in excess of any other coverage the risk manager knows is commonly available to a charter school employee in this state.
(ii) The information described in Subsection (3)(a) may include:
(A) comparisons the risk manager considers beneficial to a charter school employee between:
(I) the coverage described in Subsection (3)(a); and
(II) other coverage the risk manager knows is commonly available to a charter school employee in this state; and
(B) any other information the risk manager considers appropriate.
(c) The risk manager shall provide the information prepared under this Subsection (3) to each charter school that participates in the Risk Management Fund.
(d) A charter school that participates in the Risk Management Fund shall provide a copy of the information described in Subsection (3)(c) to each charter school employee within the charter school:
(i) within 30 days of the day the charter school employee is hired by the charter school; and
(ii) by no later than April 15 of each calendar year.
Section 1207. Section 63A-4-207 is amended to read:
63A-4-207
. Records of risk management.(1) A record provided to the Division of Risk Management by any governmental entity or political subdivision covered by the Risk Management Fund for the purpose of risk control or claims activities of the division shall be considered a record of the originating governmental entity or political subdivision for purposes of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, if the originating governmental entity or political subdivision retains a copy of the record.
(2) Notwithstanding Subsection [63-2-201] 63G-2-201(5), records may be exchanged between the Division of Risk Management and any governmental entity or political subdivision covered by the Risk Management Fund without meeting the requirements of Section [63-2-206] 63G-2-206, provided that they are used only for purposes of risk control or claims activities.
Section 1208. Section 63A-5-103 is amended to read:
63A-5-103
. Board -- Powers.(1) The State Building Board shall:
(a) in cooperation with state institutions, departments, commissions, and agencies, prepare a master plan of structures built or contemplated;
(b) submit to the governor and the Legislature a comprehensive five-year building plan for the state containing the information required by Subsection (2);
(c) amend and keep current the five-year building program for submission to the governor and subsequent legislatures;
(d) as a part of the long-range plan, recommend to the governor and Legislature any changes in the law that are necessary to insure an effective, well-coordinated building program for all state institutions;
(e) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules:
(i) that are necessary to discharge its duties and the duties of the Division of Facilities Construction and Management; and
(ii) to establish standards and requirements for life cycle cost-effectiveness of state facility projects;
(f) with support from the Division of Facilities Construction and Management, establish design criteria, standards, and procedures for planning, design, and construction of new state facilities and for improvements to existing state facilities, including life-cycle costing, cost-effectiveness studies, and other methods and procedures that address:
(i) the need for the building or facility;
(ii) the effectiveness of its design;
(iii) the efficiency of energy use; and
(iv) the usefulness of the building or facility over its lifetime;
(g) prepare and submit a yearly request to the governor and the Legislature for a designated amount of square footage by type of space to be leased by the Division of Facilities Construction and Management in that fiscal year; and
(h) assure the efficient use of all building space.
(2) In order to provide adequate information upon which the State Building Board may make its recommendation under Subsection (1), any state agency requesting new full-time employees for the next fiscal year shall report those anticipated requests to the building board at least 90 days before the annual general session in which the request is made.
(3) (a) The State Building Board shall ensure that the five-year building plan required by Subsection (1)(c) includes:
(i) a list that prioritizes construction of new buildings for all structures built or contemplated based upon each agency's, department's, commission's, and institution's present and future needs;
(ii) information, and space use data for all state-owned and leased facilities;
(iii) substantiating data to support the adequacy of any projected plans;
(iv) a summary of all statewide contingency reserve and project reserve balances as of the end of the most recent fiscal year;
(v) a list of buildings that have completed a comprehensive facility evaluation by an architect/engineer or are scheduled to have an evaluation;
(vi) for those buildings that have completed the evaluation, the estimated costs of needed improvements; and
(vii) for projects recommended in the first two years of the five-year building plan:
(A) detailed estimates of the cost of each project;
(B) the estimated cost to operate and maintain the building or facility on an annual basis;
(C) the estimated number of new agency full-time employees expected to be housed in the building or facility;
(D) the estimated cost of new or expanded programs and personnel expected to be housed in the building or facility;
(E) the estimated lifespan of the building with associated costs for major component replacement over the life of the building; and
(F) the estimated cost of any required support facilities.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Building Board may make rules prescribing the format for submitting the information required by this Subsection (3).
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Building Board may make rules establishing circumstances under which bids may be modified when all bids for a construction project exceed available funds as certified by the director.
(b) In making those rules, the State Building Board shall provide for the fair and equitable treatment of bidders.
(5) (a) A person who violates a rule adopted by the board under Subsection (1)(e) is subject to a civil penalty not to exceed $2,500 for each violation plus the amount of any actual damages, expenses, and costs related to the violation of the rule that are incurred by the state.
(b) The board may take any other action allowed by law.
(c) If any violation of a rule adopted by the board is also an offense under Title 76, Utah Criminal Code, the violation is subject to the civil penalty, damages, expenses, and costs allowed under Subsection (1)(e) in addition to any criminal prosecution.
Section 1209. Section 63A-5-104 is amended to read:
63A-5-104
. Capital development and capital improvement process -- Approval requirements -- Limitations on new projects -- Emergencies.(1) As used in this section:
(a) "Capital developments" means any:
(i) remodeling, site, or utility projects with a total cost of $2,500,000 or more;
(ii) new facility with a construction cost of $500,000 or more; or
(iii) purchase of real property where an appropriation is requested to fund the purchase.
(b) "Capital improvements" means any:
(i) remodeling, alteration, replacement, or repair project with a total cost of less than $2,500,000;
(ii) site and utility improvement with a total cost of less than $2,500,000; or
(iii) new facility with a total construction cost of less than $500,000.
(c) (i) "New facility" means the construction of any new building on state property regardless of funding source.
(ii) "New facility" includes:
(A) an addition to an existing building; and
(B) the enclosure of space that was not previously fully enclosed.
(iii) "New facility" does not mean:
(A) the replacement of state-owned space that is demolished or that is otherwise removed from state use, if the total construction cost of the replacement space is less than $2,500,000; or
(B) the construction of facilities that do not fully enclose a space.
(d) "Replacement cost of existing state facilities" means the replacement cost, as determined by the Division of Risk Management, of state facilities, excluding auxiliary facilities as defined by the State Building Board.
(e) "State funds" means public monies appropriated by the Legislature.
(2) The State Building Board, on behalf of all state agencies, commissions, departments, and institutions shall submit its capital development recommendations and priorities to the Legislature for approval and prioritization.
(3) (a) Except as provided in Subsections (3)(b), (d), and (e), a capital development project may not be constructed on state property without legislative approval.
(b) Legislative approval is not required for a capital development project if the State Building Board determines that:
(i) the requesting higher education institution has provided adequate assurance that:
(A) state funds will not be used for the design or construction of the facility; and
(B) the higher education institution has a plan for funding in place that will not require increased state funding to cover the cost of operations and maintenance to, or state funding for, immediate or future capital improvements to the resulting facility; and
(ii) the use of the state property is:
(A) appropriate and consistent with the master plan for the property; and
(B) will not create an adverse impact on the state.
(c) (i) The Division of Facilities Construction and Management shall maintain a record of facilities constructed under the exemption provided in Subsection (3)(b).
(ii) For facilities constructed under the exemption provided in Subsection (3)(b), a higher education institution may not request:
(A) increased state funds for operations and maintenance; or
(B) state capital improvement funding.
(d) Legislative approval is not required for:
(i) the renovation, remodeling, or retrofitting of an existing facility with nonstate funds;
(ii) facilities to be built with nonstate funds and owned by nonstate entities within research park areas at the University of Utah and Utah State University;
(iii) facilities to be built at This is the Place State Park by This is the Place Foundation with funds of the foundation, including grant monies from the state, or with donated services or materials;
(iv) capital projects that are funded by the Navajo Trust Fund Board from Navajo Trust Fund monies and the Uintah Basin Revitalization Fund that do not provide a new facility for a state agency or higher education institution; or
(v) capital projects on school and institutional trust lands that are funded by the School and Institutional Trust Lands Administration from the Land Grant Management Fund and that do not fund construction of a new facility for a state agency or higher education institution.
(e) (i) Legislative approval is not required for capital development projects to be built for the Department of Transportation as a result of an exchange of real property under Section 72-5-111.
(ii) When the Department of Transportation approves those exchanges, it shall notify the president of the Senate, the speaker of the House, and the cochairs of the Capital Facilities and Administrative Services Subcommittee of the Legislature's Joint Appropriation Committee about any new facilities to be built under this exemption.
(4) (a) The State Building Board, on behalf of all state agencies, commissions, departments, and institutions shall by January 15 of each year, submit a list of anticipated capital improvement requirements to the Legislature for review and approval.
(b) Unless otherwise directed by the Legislature, the building board shall prioritize capital improvements from the list submitted to the Legislature up to the level of appropriation made by the Legislature.
(c) In prioritizing capital improvements, the building board shall consider the results of facility evaluations completed by an architect/engineer as stipulated by the building board's facilities maintenance standards.
(d) The building board may require an entity that benefits from a capital improvement project to repay the capital improvement funds from savings that result from the project.
(5) The Legislature may authorize:
(a) the total square feet to be occupied by each state agency; and
(b) the total square feet and total cost of lease space for each agency.
(6) (a) Except as provided in Subsection (6)(b), the Legislature may not fund the design or construction of any new capital development projects, except to complete the funding of projects for which partial funding has been previously provided, until the Legislature has appropriated 1.1% of the replacement cost of existing state facilities to capital improvements.
(b) (i) As used in this Subsection (6)(b), "operating deficit" means that estimated General Fund or Uniform School Fund revenues are less than budgeted for the current or next fiscal year.
(ii) If the Legislature determines that an operating deficit exists, the Legislature may, in eliminating the deficit, reduce the amount appropriated to capital improvements to 0.9% of the replacement cost of state buildings.
(7) (a) If, after approval of capital development and capital improvement priorities by the Legislature under this section, emergencies arise that create unforeseen critical capital improvement projects, the State Building Board may, notwithstanding the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, reallocate capital improvement funds to address those projects.
(b) The building board shall report any changes it makes in capital improvement allocations approved by the Legislature to:
(i) the Office of Legislative Fiscal Analyst within 30 days of the reallocation; and
(ii) the Legislature at its next annual general session.
(8) (a) The State Building Board may adopt a rule allocating to institutions and agencies their proportionate share of capital improvement funding.
(b) The building board shall ensure that the rule:
(i) reserves funds for the Division of Facilities Construction and Management for emergency projects; and
(ii) allows the delegation of projects to some institutions and agencies with the requirement that a report of expenditures will be filed annually with the Division of Facilities Construction and Management and appropriate governing bodies.
(9) It is the intent of the Legislature that in funding capital improvement requirements under this section the General Fund be considered as a funding source for at least half of those costs.
Section 1210. Section 63A-5-204 is amended to read:
63A-5-204
. Specific powers and duties of director.(1) As used in this section, "capitol hill facilities" and "capitol hill grounds" have the same meaning as provided in Section 63C-9-102.
(2) (a) The director shall:
(i) recommend rules to the executive director for the use and management of facilities and grounds owned or occupied by the state for the use of its departments and agencies;
(ii) supervise and control the allocation of space, in accordance with legislative directive through annual appropriations acts or other specific legislation, to the various departments, commissions, institutions, and agencies in all buildings or space owned, leased, or rented by or to the state, except capitol hill facilities and capitol hill grounds and except as otherwise provided by law;
(iii) comply with the procedures and requirements of Title 63A, Chapter 5, Part 3, Division of Facilities Construction and Management Leasing;
(iv) except as provided in Subsection (2)(b), acquire, as authorized by the Legislature through the appropriations act or other specific legislation, and hold title to, in the name of the division, all real property, buildings, fixtures, or appurtenances owned by the state or any of its agencies;
(v) adopt and use a common seal, of a form and design determined by the director, and of which courts shall take judicial notice;
(vi) file a description and impression of the seal with the Division of Archives;
(vii) collect and maintain all deeds, abstracts of title, and all other documents evidencing title to or interest in property belonging to the state or any of its departments, except institutions of higher education and the School and Institutional Trust Lands Administration;
(viii) report all properties acquired by the state, except those acquired by institutions of higher education, to the director of the Division of Finance for inclusion in the state's financial records;
(ix) before charging a rate, fee, or other amount for services provided by the division's internal service fund to an executive branch agency, or to a subscriber of services other than an executive branch agency:
(A) submit the proposed rates, fees, and cost analysis to the Rate Committee established in Section 63A-1-114; and
(B) obtain the approval of the Legislature as required by Section [63-38-3.5] 63J-1-306;
(x) conduct a market analysis by July 1, 2005, and periodically thereafter, of proposed rates and fees, which analysis shall include a comparison of the division's rates and fees with the fees of other public or private sector providers where comparable services and rates are reasonably available;
(xi) implement the State Building Energy Efficiency Program under Section [63-9-67] 63A-5-701; and
(xii) take all other action necessary for carrying out the purposes of this chapter.
(b) Legislative approval is not required for acquisitions by the division that cost less than $250,000.
(3) (a) The director shall direct or delegate maintenance and operations, preventive maintenance, and facilities inspection programs and activities for any department, commission, institution, or agency, except:
(i) the State Capitol Preservation Board; and
(ii) state institutions of higher education.
(b) The director may choose to delegate responsibility for these functions only when the director determines that:
(i) the department or agency has requested the responsibility;
(ii) the department or agency has the necessary resources and skills to comply with facility maintenance standards approved by the State Building Board; and
(iii) the delegation would result in net cost savings to the state as a whole.
(c) The State Capitol Preservation Board and state institutions of higher education are exempt from Division of Facilities Construction and Management oversight.
(d) Each state institution of higher education shall comply with the facility maintenance standards approved by the State Building Board.
(e) Except for the State Capitol Preservation Board, agencies and institutions that are exempt from division oversight shall annually report their compliance with the facility maintenance standards to the division in the format required by the division.
(f) The division shall:
(i) prescribe a standard format for reporting compliance with the facility maintenance standards;
(ii) report agency and institution compliance or noncompliance with the standards to the Legislature; and
(iii) conduct periodic audits of exempt agencies and institutions to ensure that they are complying with the standards.
(4) (a) In making any allocations of space under Subsection (2), the director shall:
(i) conduct studies to determine the actual needs of each department, commission, institution, or agency; and
(ii) comply with the restrictions contained in this Subsection (4).
(b) The supervision and control of the legislative area is reserved to the Legislature.
(c) The supervision and control of the judicial area is reserved to the judiciary for trial courts only.
(d) The director may not supervise or control the allocation of space for entities in the public and higher education systems.
(e) The supervision and control of capitol hill facilities and capitol hill grounds is reserved to the State Capitol Preservation Board.
(5) The director may:
(a) hire or otherwise procure assistance and services, professional, skilled, or otherwise, that are necessary to carry out the director's responsibilities, and may expend funds provided for that purpose either through annual operating budget appropriations or from nonlapsing project funds;
(b) sue and be sued in the name of the division; and
(c) hold, buy, lease, and acquire by exchange or otherwise, as authorized by the Legislature, whatever real or personal property that is necessary for the discharge of the director's duties.
(6) Notwithstanding the provisions of Subsection (2)(a)(iv), the following entities may hold title to any real property, buildings, fixtures, and appurtenances held by them for purposes other than administration that are under their control and management:
(a) the Office of Trust Administrator;
(b) the Department of Transportation;
(c) the Division of Forestry, Fire and State Lands;
(d) the Department of Natural Resources;
(e) the Utah National Guard;
(f) any area vocational center or other institution administered by the State Board of Education;
(g) any institution of higher education; and
(h) the Utah Science Technology and Research Governing Authority.
(7) The director shall ensure that any firm performing testing and inspection work governed by the American Society for Testing Materials Standard E-329 on public buildings under the director's supervision shall:
(a) fully comply with the American Society for Testing Materials standard specifications for agencies engaged in the testing and inspection of materials known as ASTM E-329; and
(b) carry a minimum of $1,000,000 of errors and omissions insurance.
(8) Notwithstanding Subsections (2)(a)(iii) and (iv), the School and Institutional Trust Lands Administration may hold title to any real property, buildings, fixtures, and appurtenances held by it that are under its control.
Section 1211. Section 63A-5-205 is amended to read:
63A-5-205
. Contracting powers of director -- Retainage.(1) As used in this section, "capital developments" and "capital improvements" have the same meaning as provided in Section 63A-5-104.
(2) In accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, the director may:
(a) enter into contracts for any work or professional services which the division or the State Building Board may do or have done; and
(b) as a condition of any contract for architectural or engineering services, prohibit the architect or engineer from retaining a sales or agent engineer for the necessary design work.
(3) The judgment of the director as to the responsibility and qualifications of a bidder is conclusive, except in case of fraud or bad faith.
(4) The division shall make all payments to the contractor for completed work in accordance with the contract and pay the interest specified in the contract on any payments that are late.
(5) If any payment on a contract with a private contractor to do work for the division or the State Building Board is retained or withheld, it shall be retained or withheld and released as provided in Section 13-8-5.
Section 1212. Section 63A-5-206 is amended to read:
63A-5-206
. Construction, alteration, and repair of state facilities -- Powers of director -- Exceptions -- Expenditure of appropriations -- Notification to local governments for construction or modification of certain facilities.(1) As used in this section:
(a) "Capital developments" and "capital improvements" have the same meaning as provided in Section 63A-5-104.
(b) "Compliance agency" has the same meaning as provided in Subsection 58-56-3(4).
(c) (i) "Facility" means any building, structure, or other improvement that is constructed on property owned by the state, its departments, commissions, institutions, or agencies.
(ii) "Facility" does not mean an unoccupied structure that is a component of the state highway system.
(d) "Life cycle cost-effective" means, as provided for in rules adopted by the State Building Board, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the most prudent cost of owning and operating a facility, including the initial cost, energy costs, operation and maintenance costs, repair costs, and the costs of energy conservation and renewable energy systems.
(e) "Local government" means the county, municipality, or local school district that would have jurisdiction to act as the compliance agency if the property on which the project is being constructed were not owned by the state.
(f) "Renewable energy system" means a system designed to use solar, wind, geothermal power, wood, or other replenishable energy source to heat, cool, or provide electricity to a building.
(2) (a) (i) Except as provided in Subsections (3) and (4), the director shall exercise direct supervision over the design and construction of all new facilities, and all alterations, repairs, and improvements to existing facilities if the total project construction cost, regardless of the funding source, is greater than $100,000.
(ii) A state entity may exercise direct supervision over the design and construction of all new facilities, and all alterations, repairs, and improvements to existing facilities if:
(A) the total project construction cost, regardless of the funding sources, is $100,000 or less; and
(B) the state entity assures compliance with the division's forms and contracts and the division's design, construction, alteration, repair, improvements, and code inspection standards.
(b) The director shall prepare or have prepared by private firms or individuals designs, plans, and specifications for the projects administered by the division.
(c) Before proceeding with construction, the director and the officials charged with the administration of the affairs of the particular department, commission, institution, or agency shall approve the location, design, plans, and specifications.
(3) Projects for the construction of new facilities and alterations, repairs, and improvements to existing facilities are not subject to Subsection (2) if the project:
(a) occurs on property under the jurisdiction of the State Capitol Preservation Board;
(b) is within a designated research park at the University of Utah or Utah State University;
(c) occurs within the boundaries of This is the Place State Park and is administered by This is the Place Foundation except that This is the Place Foundation may request the director to administer the design and construction; or
(d) is for the creation and installation of art under Title 9, Chapter 6, Part 4, Utah Percent-for-Art Act.
(4) (a) (i) The State Building Board may authorize the delegation of control over design, construction, and all other aspects of any project to entities of state government on a project-by-project basis or for projects within a particular dollar range and a particular project type.
(ii) The state entity to whom control is delegated shall assume fiduciary control over project finances, shall assume all responsibility for project budgets and expenditures, and shall receive all funds appropriated for the project, including any contingency funds contained in the appropriated project budget.
(iii) Delegation of project control does not exempt the state entity from complying with the codes and guidelines for design and construction adopted by the division and the State Building Board.
(iv) State entities that receive a delegated project may not access, for the delegated project, the division's statewide contingency reserve and project reserve authorized in Section 63A-5-209.
(b) For facilities that will be owned, operated, maintained, and repaired by an entity that is not a state agency or institution and that are located on state property, the State Building Board may authorize the owner to administer the design and construction of the project instead of the division.
(5) Notwithstanding any other provision of this section, if a donor donates land to an eligible institution of higher education and commits to build a building or buildings on that land, and the institution agrees to provide funds for the operations and maintenance costs from sources other than state funds, and agrees that the building or buildings will not be eligible for state capital improvement funding, the higher education institution may:
(a) oversee and manage the construction without involvement, oversight, or management from the division; or
(b) arrange for management of the project by the division.
(6) (a) The role of compliance agency as provided in Title 58, Chapter 56, Utah Uniform Building Standards Act, shall be provided by:
(i) the director, for projects administered by the division;
(ii) the entity designated by the State Capitol Preservation Board, for projects under Subsection (3)(a);
(iii) the local government, for projects exempt from the division's administration under Subsection (3)(b) or administered by This is the Place Foundation under Subsection (3)(c);
(iv) the state entity or local government designated by the State Building Board, for projects under Subsection (4); or
(v) the institution, for projects exempt from the division's administration under Subsection (5)(a).
(b) For the installation of art under Subsection (3)(d), the role of compliance agency shall be provided by the entity that is acting in this capacity for the balance of the project as provided in Subsection (6)(a).
(c) The local government acting as the compliance agency under Subsection (6)(a)(iii) may:
(i) only review plans and inspect construction to enforce the building codes as adopted by the Uniform Building Codes Commission; and
(ii) charge a building permit fee of no more than the amount it could have charged if the land upon which the improvements are located were not owned by the state.
(d) (i) The use of state property and any improvements constructed on state property, including improvements constructed by nonstate entities, is not subject to the zoning authority of local governments as provided in Sections 10-9a-304 and 17-27a-304.
(ii) The state entity controlling the use of the state property shall consider any input received from the local government in determining how the property shall be used.
(7) Before construction may begin, the director shall review the design of projects exempted from the division's administration under Subsection (4) to determine if the design:
(a) complies with any restrictions placed on the project by the State Building Board; and
(b) is appropriate for the purpose and setting of the project.
(8) The director shall ensure that state-owned facilities, except for facilities under the control of the State Capitol Preservation Board, are life cycle cost-effective.
(9) The director may expend appropriations for statewide projects from funds provided by the Legislature for those specific purposes and within guidelines established by the State Building Board.
(10) (a) The director, with the approval of the Office of Legislative Fiscal Analyst, shall develop standard forms to present capital development and capital improvement cost summary data.
(b) The director shall:
(i) within 30 days after the completion of each capital development project, submit cost summary data for the project on the standard form to the Office of Legislative Fiscal Analyst; and
(ii) upon request, submit cost summary data for a capital improvement project to the Office of Legislative Fiscal Analyst on the standard form.
(11) Notwithstanding the requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, the director may:
(a) accelerate the design of projects funded by any appropriation act passed by the Legislature in its annual general session;
(b) use any unencumbered existing account balances to fund that design work; and
(c) reimburse those account balances from the amount funded for those projects when the appropriation act funding the project becomes effective.
(12) (a) The director, his designee, or the state entity to whom control has been designated under Subsection (4), shall notify in writing the elected representatives of local government entities directly and substantively affected by any diagnostic, treatment, parole, probation, or other secured facility project exceeding $250,000, if:
(i) the nature of the project has been significantly altered since prior notification;
(ii) the project would significantly change the nature of the functions presently conducted at the location; or
(iii) the project is new construction.
(b) At the request of either the state entity or the local government entity, representatives from the state entity and the affected local entity shall conduct or participate in a local public hearing or hearings to discuss these issues.
(13) (a) (i) Before beginning the construction of student housing on property owned by the state or a public institution of higher education, the director shall provide written notice of the proposed construction, as provided in Subsection (13)(a)(ii), if any of the proposed student housing buildings is within 300 feet of privately owned residential property.
(ii) Each notice under Subsection (13)(a)(i) shall be provided to the legislative body and, if applicable, the mayor of:
(A) the county in whose unincorporated area the privately owned residential property is located; or
(B) the municipality in whose boundaries the privately owned residential property is located.
(b) (i) Within 21 days after receiving the notice required by Subsection (13)(a)(i), a county or municipality entitled to the notice may submit a written request to the director for a public hearing on the proposed student housing construction.
(ii) If a county or municipality requests a hearing under Subsection (13)(b)(i), the director and the county or municipality shall jointly hold a public hearing to provide information to the public and to allow the director and the county or municipality to receive input from the public about the proposed student housing construction.
Section 1213. Section 63A-5-208 is amended to read:
63A-5-208
. Definitions -- Certain public construction bids to list subcontractors -- Changing subcontractors -- Bidders as subcontractors -- Dispute resolution process -- Penalties.(1) As used in this section:
(a) "First-tier subcontractor" means a subcontractor who contracts directly with the prime contractor.
(b) "Subcontractor" means any person or entity under contract with a contractor or another subcontractor to provide services or labor for the construction, installation, or repair of an improvement to real property.
(c) "Subcontractor" includes a trade contractor or specialty contractor.
(d) "Subcontractor" does not include suppliers who provide only materials, equipment, or supplies to a contractor or subcontractor.
(2) The director shall apply the provisions of this section to achieve fair and competitive bidding and to discourage bid-shopping by contractors.
(3) (a) (i) (A) On each public construction project, the director shall require the apparent lowest three bidders to submit a list of their first-tier subcontractors indicating each subcontractor's name, bid amount, and other information required by rule.
(B) Other bidders who are not one of the apparent lowest three bidders may also submit a list of their first-tier subcontractors containing the information required by this Subsection (3).
(C) The director may not consider any bid submitted by a bidder if the bidder fails to submit a subcontractor list meeting the requirements of this section.
(ii) On projects where the contractor's total bid is less than $500,000, subcontractors whose bid is less than $20,000 need not be listed.
(iii) On projects where the contractor's total bid is $500,000 or more, subcontractors whose bid is less than $35,000 need not be listed.
(b) (i) The bidders shall submit this list within 24 hours after the bid opening time, not including Saturdays, Sundays, and state holidays.
(ii) This list does not limit the director's right to authorize a change in the listing of any subcontractor.
(c) The bidders shall verify that all subcontractors listed as part of their bids are licensed as required by state law.
(d) Twenty-four hours after the bid opening, the contractor may change his subcontractors only after:
(i) receiving permission from the director; and
(ii) establishing that:
(A) the change is in the best interest of the state; and
(B) the contractor establishes reasons for the change that meet the standards established by the State Building Board.
(e) If the director approves any changes in subcontractors that result in a net lower contract price for subcontracted work, the total of the prime contract may be reduced to reflect the changes.
(4) (a) A bidder may list himself as a subcontractor when the bidder is currently licensed to perform the portion of the work for which the bidder lists himself as a subcontractor and:
(i) the bidder intends to perform the work of a subcontractor himself; or
(ii) the bidder intends to obtain a subcontractor to perform the work at a later date because the bidder was unable to:
(A) obtain a bid from a qualified subcontractor; or
(B) obtain a bid from a qualified subcontractor at a cost that the bidder considers to be reasonable.
(b) (i) When the bidder intends to perform the work of a subcontractor himself, the director may, by written request, require that the bidder provide the director with information indicating the bidder's:
(A) previous experience in the type of work to be performed; and
(B) qualifications for performing the work.
(ii) The bidder must respond in writing within five business days of receiving the director's written request.
(iii) If the bidder's submitted information causes the director to reasonably believe that self-performance of the portion of the work by the bidder is likely to yield a substandard finished product, the director shall:
(A) require the bidder to use a subcontractor for the portion of the work in question and obtain the subcontractor bid under the supervision of the director; or
(B) reject the bidder's bid.
(c) (i) When the bidder intends to obtain a subcontractor to perform the work at a later date, the bidder shall provide documentation with the subcontractor list describing:
(A) the bidder's efforts to obtain a bid of a qualified subcontractor at a reasonable cost; and
(B) why the bidder was unable to obtain a qualified subcontractor bid.
(ii) If the bidder who intends to obtain a subcontractor to perform the work at a later date is awarded a contract, the director shall supervise the bidder's efforts to obtain a qualified subcontractor bid.
(iii) The director may not adjust the amount of the contract awarded in order to reflect the actual amount of the subcontractor's bid.
(5) The division may not disclose any subcontractor bid amounts obtained under this section until the division has awarded the project to a contractor.
(6) (a) The director shall, in consultation with the State Building Board, prepare draft rules establishing a process for resolving disputes involved with contracts under the division's procurement authority.
(b) The draft rules shall be presented to the Government Operations Interim Committee for review, comment, and recommendations before August 31, 2004.
(c) The director shall consider, and the rules may include:
(i) requirements regarding preliminary resolution efforts between the parties directly involved with the dispute;
(ii) requirements for the filing of claims, including notification, timeframes, and documentation;
(iii) identification of the types of costs eligible for allocation and a method for allocating costs among the parties to the dispute;
(iv) required time periods, not to exceed 60 days, for the resolution of the claim;
(v) provision for an independent hearing officer, panel, or arbitrator to extend the time period for resolution of the claim by not to exceed 60 additional days for good cause;
(vi) provision for the extension of required time periods if the claimant agrees;
(vii) requirements that decisions be issued in writing;
(viii) provisions for administrative appeals of the decision;
(ix) provisions for the timely payment of claims after resolution of the dispute, including any appeals;
(x) a requirement that the final determination resulting from the dispute resolution process provided for in the rules is a final agency action subject to judicial review as provided in Sections [63-46b-14] 63G-4-401 and [63-46b-15] 63G-4-402;
(xi) a requirement that a claim or dispute that does not include a monetary claim against the division or its agents is not limited to the dispute resolution process provided for in this Subsection (6);
(xii) requirements for claims and disputes to be eligible for this dispute resolution process;
(xiii) the use of an independent hearing officer, panel, arbitration, or mediation; and
(xiv) the circumstances under which a subcontractor may file a claim directly with the division.
(d) Persons pursuing claims under the process required by this Subsection (6):
(i) are bound by the decision reached under this process unless the decision is properly appealed; and
(ii) may not pursue claims or disputes under the dispute resolution process established in Sections [63-56-805] 63G-6-805 through [63-56-814] 63G-6-814.
(7) In addition to all other reasons allowed by law or rule, the director may reject all bids if none of the bidders whose bid is within the budget of the project submit a subcontractor list that meets the requirements of this section.
(8) Any violation of this section, or any fraudulent misrepresentation by a contractor, subcontractor, or supplier, may be grounds for:
(a) the contractor, subcontractor, or supplier to be suspended or debarred by the director; or
(b) the contractor or subcontractor to be disciplined by the Division of Professional and Occupational Licensing.
Section 1214. Section 63A-5-302 is amended to read:
63A-5-302
. Leasing responsibilities of the director.(1) The director shall:
(a) lease, in the name of the division, all real property space to be occupied by an agency;
(b) in leasing space, comply with:
(i) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; and
(ii) any legislative mandates contained in the appropriations act or other specific legislation;
(c) apply the criteria contained in Subsection (e) to prepare a report evaluating each high-cost lease at least 12 months before it expires;
(d) evaluate each lease under the division's control and apply the criteria contained in Subsection (e), when appropriate, to evaluate those leases;
(e) in evaluating leases:
(i) determine whether or not the lease is cost-effective when the needs of the agency to be housed in the leased facilities are considered;
(ii) determine whether or not another option such as construction, use of other state-owned space, or a lease-purchase agreement is more cost-effective than leasing;
(iii) determine whether or not the significant lease terms are cost-effective and provide the state with sufficient flexibility and protection from liability;
(iv) compare the proposed lease payments to the current market rates, and evaluate whether or not the proposed lease payments are reasonable under current market conditions;
(v) compare proposed significant lease terms to the current market, and recommend whether or not these proposed terms are reasonable under current market conditions; and
(vi) if applicable, recommend that the lease or modification to a lease be approved or disapproved;
(f) based upon the evaluation, include in the report recommendations that identify viable alternatives to:
(i) make the lease cost-effective; or
(ii) meet the agency's needs when the lease expires; and
(g) upon request, provide the information included in the report to:
(i) the agency benefited by the lease; and
(ii) the Office of Legislative Fiscal Analyst.
(2) The director may:
(a) subject to legislative appropriation, enter into facility leases with terms of up to ten years when the length of the lease's term is economically advantageous to the state; and
(b) with the approval of the State Building Board and subject to legislative appropriation, enter into facility leases with terms of more than ten years when the length of the lease's term is economically advantageous to the state.
Section 1215. Section 63A-5-501, which is renumbered from Section 63-9-21 is renumbered and amended to read:
Part 5. Keys to Public Buildings
[63-9-21]. 63A-5-501. Making keys to buildings of state, political subdivisions or colleges and universities without permission prohibited.
No person shall knowingly make or cause to be made any key or duplicate key for any building, laboratory, facility, room, dormitory, hall or any other structure or part thereof owned by the state, by any political subdivision thereof or by the board of regents or other governing body of any college or university which is supported wholly or in part by the state without the prior written consent of the state, political subdivision, board of regents, or other governing body.
Section 1216. Section 63A-5-502, which is renumbered from Section 63-9-22 is renumbered and amended to read:
[63-9-22
]. 63A-5-502. Violation -- Misdemeanor.Any person who violates this act shall be guilty of a misdemeanor.
Section 1217. Section 63A-5-601, which is renumbered from Section 63-9-63 is renumbered and amended to read:
Part 6. Energy Conservation and Alternative Financing
[63-9-63]. 63A-5-601. Legislative findings and policy.
(1) The Legislature finds the following:
(a) The operation of facilities owned and controlled by the state consumes significant amounts of energy.
(b) Facilities owned and controlled by the state present a significant opportunity for energy cost savings through the implementation of conservation measures.
(c) Principles which produce efficient facility management in the private sector are equally applicable to the management of public buildings and facilities.
(d) There exists, in the private sector, favorable alternative methods of financing energy conservation measures which are not readily adaptable to financing state facility energy efficiency improvements due to current budgetary practices.
(e) Maximization of energy conservation efforts in light of limited resources requires careful advance planning by responsible agencies.
(2) The Legislature declares that it is the policy of the state to:
(a) undertake aggressive programs designed to reduce energy use in state facilities in order to reduce the operating costs of state government and to set an example of energy efficiency for the public;
(b) utilize, to the greatest practical extent, alternative funding sources and methods of financing energy efficiency improvements in state facilities in a manner which minimizes the necessity for increased appropriations;
(c) employ private sector management incentive principles, to the extent practicable, to implement the policies in Subsections (2)(a) and (b);
(d) develop incentives to encourage state entities to conserve energy, reduce energy costs, and utilize renewable energy sources where practicable; and
(e) procure and use energy efficient products where practicable.
Section 1218. Section 63A-5-701, which is renumbered from Section 63-9-67 is renumbered and amended to read:
Part 7. State Building Energy Efficiency Program
[63-9-67]. 63A-5-701. State Building Energy Efficiency Program.
(1) For purposes of this section:
(a) "Division" means the Division of Facilities Construction and Management established in Section 63A-5-201.
(b) "Energy efficiency measures" means actions taken or initiated by a state agency that reduce the state agency's energy use, increase the state agency's energy efficiency, reduce source energy consumption, reduce water consumption, or lower the costs of energy or water to the state agency.
(c) "Energy savings agreement" means an agreement entered into by a state agency whereby the state agency implements energy efficiency measures and finances the costs associated with implementation of energy efficiency measures using the stream of expected savings in utility costs resulting from implementation of the energy efficiency measures as the funding source for repayment.
(d) "State agency" means each executive, legislative, and judicial branch department, agency, board, commission, or division, and includes a state institution of higher education as defined in Section 53B-3-102.
(e) "State Building Energy Efficiency Program" means a program established under this section for the purpose of improving energy efficiency measures and reducing the energy costs for state facilities.
(f) (i) "State facility" means any building, structure, or other improvement that is constructed on property owned by the state, its departments, commissions, institutions, or agencies, or a state institution of higher education.
(ii) "State facility" does not mean:
(A) an unoccupied structure that is a component of the state highway system;
(B) a privately owned structure that is located on property owned by the state, its departments, commissions, institutions, or agencies, or a state institution of higher education; or
(C) a structure that is located on land administered by the School and Institutional Trust Lands Administration under a lease, permit, or contract with the School and Institutional Trust Lands Administration.
(2) The division shall:
(a) develop and administer the state building energy efficiency program, which shall include guidelines and procedures to improve energy efficiency in the maintenance and management of state facilities;
(b) provide information and assistance to state agencies in their efforts to improve energy efficiency;
(c) analyze energy consumption by state agencies to identify opportunities for improved energy efficiency;
(d) establish an advisory group composed of representatives of state agencies to provide information and assistance in the development and implementation of the state building energy efficiency program; and
(e) submit to the governor and to the Capital Facilities and Administrative Services Appropriations Subcommittee of the Legislature an annual report that:
(i) identifies strategies for long-term improvement in energy efficiency;
(ii) identifies goals for energy conservation for the upcoming year; and
(iii) details energy management programs and strategies that were undertaken in the previous year to improve the energy efficiency of state agencies and the energy savings achieved.
(3) Each state agency shall:
(a) designate a staff member that is responsible for coordinating energy efficiency efforts within the agency;
(b) provide energy consumption and costs information to the division;
(c) develop strategies for improving energy efficiency and reducing energy costs; and
(d) provide the division with information regarding the agency's energy efficiency and reduction strategies.
(4) (a) A state agency may enter into an energy savings agreement for a term of up to 20 years.
(b) Before entering into an energy savings agreement, the state agency shall:
(i) utilize the division to oversee the project unless the project is exempt from the division's oversight or the oversight is delegated to the agency under the provisions of Section 63A-5-206;
(ii) obtain the prior approval of the governor or the governor's designee; and
(iii) provide the Office of Legislative Fiscal Analyst with a copy of the proposed agreement before the agency enters into the agreement.
Section 1219. Section 63A-5-801, which is renumbered from Section 63-9-68 is renumbered and amended to read:
Part 8. State Memorials
[63-9-68]. 63A-5-801. Memorials by the state or state agencies.
(1) As used in this section:
(a) "State agency" means any of the following of the state that holds title to state land:
(i) a department;
(ii) a division;
(iii) a board;
(iv) an institution of higher education; or
(v) for the judicial branch, the state court administrator.
(b) "State agency" does not mean a local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, a special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, or a dependent district under Title 17A, Chapter 3, Dependent Districts.
(2) The Legislature, the governor, or a state agency may authorize the use or donation of state land for the purpose of maintaining, erecting, or contributing to the erection or maintenance of a memorial to commemorate those individuals who have:
(a) participated in or have given their lives in any of the one or more wars or military conflicts in which the United States of America has been a participant; or
(b) given their lives in association with public service on behalf of the state, including firefighters, peace officers, highway patrol officers, or other public servants.
(3) The use or donation of state land in relation to a memorial described in Subsection (2) may include:
(a) using or appropriating public funds for the purchase, development, improvement, or maintenance of state land on which a memorial is located or established;
(b) using or appropriating public funds for the erection, improvement, or maintenance of a memorial;
(c) donating or selling state land for use in relation to a memorial; or
(d) authorizing the use of state land for a memorial that is funded or maintained in part or in full by another public or private entity.
(4) The Legislature, the governor, or a state agency may specify the form, placement, and design of a memorial that is subject to this section if the Legislature, the governor, or the state agency holds title to, has authority over, or donates the land on which a memorial is established.
(5) Memorials within the definition of a capital development as defined in Section 63A-5-104 must be approved as provided for in Section 63A-5-104.
(6) Nothing in this section shall be construed as a prohibition of memorials, including those for purposes not covered by this section, which have been erected within the approval requirements in effect at the time of their erection or which may be duly authorized through other legal means.
Section 1220. Section 63A-8-201 is amended to read:
63A-8-201
. Office of State Debt Collection created -- Duties.(1) The state and each state agency shall comply with the requirements of this chapter and any rules established by the Office of State Debt Collection.
(2) There is created the Office of State Debt Collection in the Department of Administrative Services.
(3) The office shall:
(a) have overall responsibility for collecting and managing state receivables;
(b) develop consistent policies governing the collection and management of state receivables;
(c) oversee and monitor state receivables to ensure that state agencies are:
(i) implementing all appropriate collection methods;
(ii) following established receivables guidelines; and
(iii) accounting for and reporting receivables in the appropriate manner;
(d) develop policies, procedures, and guidelines for accounting, reporting, and collecting monies owed to the state;
(e) provide information, training, and technical assistance to all state agencies on various collection-related topics;
(f) write an inclusive receivables management and collection manual for use by all state agencies;
(g) prepare quarterly and annual reports of the state's receivables;
(h) create or coordinate a state accounts receivable database;
(i) develop reasonable criteria to gauge state agencies' efforts in maintaining an effective accounts receivable program;
(j) identify those state agencies that are not making satisfactory progress toward implementing collection techniques and improving accounts receivable collections;
(k) coordinate information, systems, and procedures between state agencies to maximize the collection of past-due accounts receivable;
(l) establish an automated cash receipt process between state agencies;
(m) establish procedures for writing off accounts receivable for accounting and collection purposes;
(n) establish standard time limits after which an agency will delegate responsibility to collect state receivables to the office or its designee;
(o) be a real party in interest for an account receivable referred to the office by any state agency; and
(p) allocate monies collected for judgments registered under Section 77-18-6 in accordance with Sections [63-63a-2] 51-9-402, 63A-8-302, and 78-3-14.5.
(4) The office may:
(a) recommend to the Legislature new laws to enhance collection of past-due accounts by state agencies;
(b) collect accounts receivables for higher education entities, if the higher education entity agrees;
(c) prepare a request for proposal for consulting services to:
(i) analyze the state's receivable management and collection efforts; and
(ii) identify improvements needed to further enhance the state's effectiveness in collecting its receivables;
(d) contract with private or state agencies to collect past-due accounts;
(e) perform other appropriate and cost-effective coordinating work directly related to collection of state receivables;
(f) obtain access to records of any state agency that are necessary to the duties of the office by following the procedures and requirements of Section [63-2-206] 63G-2-206;
(g) collect interest and fees related to the collection of receivables under this chapter, and establish, by following the procedures and requirements of Section [63-38-3.2] 63J-1-303:
(i) a fee to cover the administrative costs of collection, on accounts administered by the office;
(ii) a late penalty fee that may not be more than 10% of the account receivable on accounts administered by the office;
(iii) an interest charge that is:
(A) the postjudgment interest rate established by Section 15-1-4 in judgments established by the courts; or
(B) not more than 2% above the prime rate as of July 1 of each fiscal year for accounts receivable for which no court judgment has been entered; and
(iv) fees to collect accounts receivable for higher education;
(h) collect reasonable attorney's fees and reasonable costs of collection that are related to the collection of receivables under this chapter;
(i) make rules that allow accounts receivable to be collected over a reasonable period of time and under certain conditions with credit cards;
(j) file a satisfaction of judgment in the district court by following the procedures and requirements of the Utah Rules of Civil Procedure;
(k) ensure that judgments for which the office is the judgment creditor are renewed, as necessary; and
(l) notwithstanding Section [63-2-206] 63G-2-206, share records obtained under Subsection (4)(f) with private sector vendors under contract with the state to assist state agencies in collecting debts owed to the state agencies without changing the classification of any private, controlled, or protected record into a public record.
(5) The office shall ensure that:
(a) a record obtained by the office or a private sector vendor as referred to in Subsection (4)(l):
(i) is used only for the limited purpose of collecting accounts receivable; and
(ii) is subject to federal, state, and local agency records restrictions; and
(b) any person employed by, or formerly employed by, the office or a private sector vendor as referred to in Subsection (4)(l) is subject to:
(i) the same duty of confidentiality with respect to the record imposed by law on officers and employees of the state agency from which the record was obtained; and
(ii) any civil or criminal penalties imposed by law for violations of lawful access to a private, controlled, or protected record.
(6) (a) The office shall collect accounts receivable ordered by the district court as a result of prosecution for a criminal offense that have been transferred to the office under Subsection 76-3-201.1(5)(h) or (8).
(b) The office may not assess the interest charge established by the office under Subsection (4) on an account receivable subject to the postjudgment interest rate established by Section 15-1-4.
(7) The office shall require state agencies to:
(a) transfer collection responsibilities to the office or its designee according to time limits established by the office;
(b) make annual progress towards implementing collection techniques and improved accounts receivable collections;
(c) use the state's accounts receivable system or develop systems that are adequate to properly account for and report their receivables;
(d) develop and implement internal policies and procedures that comply with the collections policies and guidelines established by the office;
(e) provide internal accounts receivable training to staff involved in their management and collection of receivables as a supplement to statewide training;
(f) bill for and make initial collection efforts of its receivables up to the time the accounts must be transferred; and
(g) submit quarterly receivable reports to the office that identify the age, collection status, and funding source of each receivable.
(8) The office shall use the information provided by the agencies and any additional information from the office's records to compile a one-page summary report of each agency.
(9) The summary shall include:
(a) the type of revenue that is owed to the agency;
(b) any attempted collection activity; and
(c) any costs incurred in the collection process.
(10) The office shall annually provide copies of each agency's summary to the governor and to the Legislature.
Section 1221. Section 63A-8-204 is amended to read:
63A-8-204
. Rulemaking authority -- Collection techniques.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office shall make rules:
(1) providing details, as necessary, for the distribution of debts collected in accordance with the priorities under Subsection 63A-8-301(3); and
(2) to govern collection techniques, which may include the use of:
(a) credit reporting bureaus;
(b) collection agencies;
(c) garnishments;
(d) liens;
(e) judgments; and
(f) administrative offsets.
Section 1222. Section 63A-9-401 is amended to read:
63A-9-401
. Division -- Duties.(1) The division shall:
(a) perform all administrative duties and functions related to management of state vehicles;
(b) coordinate all purchases of state vehicles;
(c) establish one or more fleet automation and information systems for state vehicles;
(d) make rules establishing requirements for:
(i) maintenance operations for state vehicles;
(ii) use requirements for state vehicles;
(iii) fleet safety and loss prevention programs;
(iv) preventative maintenance programs;
(v) procurement of state vehicles, including:
(A) vehicle standards;
(B) alternative fuel vehicle requirements;
(C) short-term lease programs;
(D) equipment installation; and
(E) warranty recovery programs;
(vi) fuel management programs;
(vii) cost management programs;
(viii) business and personal use practices, including commute standards;
(ix) cost recovery and billing procedures;
(x) disposal of state vehicles;
(xi) reassignment of state vehicles and reallocation of vehicles throughout the fleet;
(xii) standard use and rate structures for state vehicles; and
(xiii) insurance and risk management requirements;
(e) establish a parts inventory;
(f) create and administer a fuel dispensing services program that meets the requirements of Subsection (2);
(g) emphasize customer service when dealing with agencies and agency employees;
(h) conduct an annual audit of all state vehicles for compliance with division requirements;
(i) before charging a rate, fee, or other amount to an executive branch agency, or to a subscriber of services other than an executive branch agency:
(i) submit the proposed rates, fees, and cost analysis to the Rate Committee established in Section 63A-1-114; and
(ii) obtain the approval of the Legislature as required by Section [63-38-3.5] 63J-1-306; and
(j) conduct an annual market analysis of proposed rates and fees, which analysis shall include a comparison of the division's rates and fees with the fees of other public or private sector providers where comparable services and rates are reasonably available.
(2) The division shall operate a fuel dispensing services program in a manner that:
(a) reduces the risk of environmental damage and subsequent liability for leaks involving state-owned underground storage tanks;
(b) eliminates fuel site duplication and reduces overall costs associated with fuel dispensing;
(c) provides efficient fuel management and efficient and accurate accounting of fuel-related expenses;
(d) where practicable, privatizes portions of the state's fuel dispensing system;
(e) provides central planning for fuel contingencies;
(f) establishes fuel dispensing sites that meet geographical distribution needs and that reflect usage patterns;
(g) where practicable, uses alternative sources of energy; and
(h) provides safe, accessible fuel supplies in an emergency.
(3) The division shall:
(a) ensure that the state and each of its agencies comply with state and federal law and state and federal rules and regulations governing underground storage tanks;
(b) coordinate the installation of new state-owned underground storage tanks and the upgrading or retrofitting of existing underground storage tanks; and
(c) ensure that counties, municipalities, school districts, local districts, and special service districts subscribing to services provided by the division sign a contract that:
(i) establishes the duties and responsibilities of the parties;
(ii) establishes the cost for the services; and
(iii) defines the liability of the parties.
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the director of the Division of Fleet Operations:
(i) may make rules governing fuel dispensing; and
(ii) shall make rules establishing standards and procedures for purchasing the most economically appropriate size and type of vehicle for the purposes and driving conditions for which the vehicle will be used, including procedures for granting exceptions to the standards by the executive director of the Department of Administrative Services.
(b) Rules made under Subsection (4)(a)(ii):
(i) shall designate a standard vehicle size and type that shall be designated as the statewide standard vehicle for fleet expansion and vehicle replacement;
(ii) may designate different standard vehicle size and types based on defined categories of vehicle use;
(iii) may, when determining a standard vehicle size and type for a specific category of vehicle use, consider the following factors affecting the vehicle class:
(A) size requirements;
(B) economic savings;
(C) fuel efficiency;
(D) driving and use requirements;
(E) safety;
(F) maintenance requirements; and
(G) resale value; and
(iv) shall require agencies that request a vehicle size and type that is different from the standard vehicle size and type to:
(A) submit a written request for a nonstandard vehicle to the division that contains the following:
(I) the make and model of the vehicle requested, including acceptable alternate vehicle makes and models as applicable;
(II) the reasons justifying the need for a nonstandard vehicle size or type;
(III) the date of the request; and
(IV) the name and signature of the person making the request; and
(B) obtain the division's written approval for the nonstandard vehicle.
(5) (a) (i) Each state agency and each higher education institution shall subscribe to the fuel dispensing services provided by the division.
(ii) A state agency may not provide or subscribe to any other fuel dispensing services, systems, or products other than those provided by the division.
(b) Counties, municipalities, school districts, local districts, special service districts, and federal agencies may subscribe to the fuel dispensing services provided by the division if:
(i) the county or municipal legislative body, the school district, or the local district or special service district board recommends that the county, municipality, school district, local district, or special service district subscribe to the fuel dispensing services of the division; and
(ii) the division approves participation in the program by that government unit.
(6) The director, with the approval of the executive director, may delegate functions to institutions of higher education, by contract or other means authorized by law, if:
(a) the agency or institution of higher education has requested the authority;
(b) in the judgment of the director, the state agency or institution has the necessary resources and skills to perform the delegated responsibilities; and
(c) the delegation of authority is in the best interest of the state and the function delegated is accomplished according to provisions contained in law or rule.
Section 1223. Section 63A-9-801 is amended to read:
63A-9-801
. State surplus property program -- Definitions -- Administration.(1) As used in this section:
(a) "Agency" means:
(i) the Utah Departments of Administrative Services, Agriculture, Alcoholic Beverage Control, Commerce, Community and Culture, Corrections, Workforce Services, Health, Human Resource Management, Human Services, Insurance, Natural Resources, Public Safety, Technology Services, and Transportation and the Labor Commission;
(ii) the Utah Offices of the Auditor, Attorney General, Court Administrator, Crime Victim Reparations, Rehabilitation, and Treasurer;
(iii) the Public Service Commission and State Tax Commission;
(iv) the State Boards of Education, Pardons and Parole, and Regents;
(v) the Career Service Review Board;
(vi) other state agencies designated by the governor;
(vii) the legislative branch, the judicial branch, and the State Board of Regents; and
(viii) an institution of higher education, its president, and its board of trustees for purposes of Section 63A-9-802.
(b) "Division" means the Division of Fleet Operations.
(c) "Information technology equipment" means any equipment that is designed to electronically manipulate, store, or transfer any form of data.
(d) "Inventory property" means property in the possession of the division that is available for purchase by an agency or the public.
(e) "Judicial district" means the geographic districts established by Section 78-1-2.1.
(f) (i) "Surplus property" means property purchased by, seized by, or donated to, an agency that the agency wishes to dispose of.
(ii) "Surplus property" does not mean real property.
(g) "Transfer" means transfer of surplus property without cash consideration.
(2) (a) The division shall make rules establishing a state surplus property program that meets the requirements of this chapter by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) Those rules shall include:
(i) a requirement prohibiting the transfer of surplus property from one agency to another agency without written approval from the division;
(ii) procedures and requirements governing division administration requirements that an agency must follow;
(iii) requirements governing purchase priorities;
(iv) requirements governing accounting, reimbursement, and payment procedures;
(v) procedures for collecting bad debts;
(vi) requirements and procedures for disposing of firearms;
(vii) the elements of the rates or other charges assessed by the division for services and handling;
(viii) procedures governing the timing and location of public sales of inventory property; and
(ix) procedures governing the transfer of information technology equipment by state agencies directly to public schools.
(c) The division shall report all transfers of information technology equipment by state agencies to public schools to the Utah Technology Commission and to the Legislative Interim Education Committee at the end of each fiscal year.
(3) In creating and administering the program, the division shall:
(a) when conditions, inventory, and demand permit:
(i) establish facilities to store inventory property at geographically dispersed locations throughout the state; and
(ii) hold public sales of property at geographically dispersed locations throughout the state;
(b) establish, after consultation with the agency requesting the sale of surplus property, the price at which the surplus property shall be sold; and
(c) transfer proceeds arising from the sale of state surplus property to the agency requesting the sale in accordance with [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act, less an amount established by the division by rule to pay the costs of administering the surplus property program.
(4) Unless specifically exempted from this chapter by explicit reference to this chapter, each state agency shall dispose of and acquire surplus property only by participating in the division's program.
Section 1224. Section 63A-9-808 is amended to read:
63A-9-808
. Personal handheld electronic device -- Rulemaking on giving priority to state and local agencies in purchasing surplus property -- Rulemaking on the sale or use of a personal handheld electronic device.(1) As used in this section, "personal handheld electronic device":
(a) means an electronic device that is designed for handheld use and permits the user to store or access information, the primary value of which is specific to the user of the device; and
(b) includes a mobile phone, pocket personal computer, personal digital assistant, wireless, or similar device.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules:
(a) giving state and local agencies priority to purchase surplus property for a 30-day period except for personal handheld electronic devices under Subsection (2)(b); and
(b) allowing the sale of a personal handheld electronic device to a user who:
(i) is provided the device as part of the user's employment; and
(ii) subsequently makes a change in employment status including, departure, retirement, or transfer to another agency within state government.
Section 1225. Section 63A-11-107 is amended to read:
63A-11-107
. Records access.(1) (a) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, and except as provided in Subsection (1)(b), all records of a contracted parental defense attorney are protected and may not be released or made public upon subpoena, search warrant, discovery proceedings, or otherwise.
(b) All records of a contracted parental defense attorney are subject to legislative subpoena, under Title 36, Chapter 14, Legislative Subpoena Powers.
(2) Records released in accordance with Subsection (1)(b) shall be maintained as confidential by the Legislature. The professional legislative staff may, however, include summary data and nonidentifying information in its audits and reports to the Legislature.
Section 1226. Section 63A-11-202 is amended to read:
63A-11-202
. Contracted parental defense attorney.(1) With respect to child welfare cases, a contracted parental defense attorney shall:
(a) adequately prepare for and attend all court hearings, including initial and continued shelter hearings and mediations;
(b) fully advise the client of the nature of the proceedings and of the client's rights, communicate to the client any offers of settlement or compromise, and advise the client regarding the reasonably foreseeable consequences of any course of action in the proceedings;
(c) be reasonably available to consult with the client outside of court proceedings;
(d) where attendance of a parental defense attorney is reasonably needed, attend meetings regarding the client's case with representatives of one or more of the Division of Child and Family Services, the Office of the Attorney General, and the Office of the Guardian Ad Litem;
(e) represent the interest of the client at all stages of the proceedings before the trial court;
(f) participate in the training courses and otherwise maintain the standards described in Subsection (3).
(2) If the office enters into a contract with an attorney under Section 63A-11-105, the contract shall require that each attorney in the firm who will provide representation of parents in child welfare cases under the contract perform the duties described in Subsection (1).
(3) (a) Except as otherwise provided in Subsection (3)(b), a contracted parental defense attorney shall meet the standards developed by the director which may include:
(i) completion of a basic training course provided by the office;
(ii) experience in child welfare cases; and
(iii) participation each calendar year in continuing legal education courses providing no fewer than eight hours of instruction in child welfare law.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the director may, by rule, exempt from the requirements of Subsection (3)(a) an attorney who has equivalent training or adequate experience.
(4) Payment for the representation, costs, and expenses of the contracted parental defense attorney shall be made from the Child Welfare Parental Defense Fund as provided in Section 63A-11-203.
Section 1227. Section 63A-11-204 is amended to read:
63A-11-204
. Agreements for coverage by the Child Welfare Parental Defense Fund -- Eligibility -- County and state obligations -- Termination -- Revocation.(1) A county legislative body and the office may annually enter into a written agreement for the office to provide parental defense attorney services in the county out of the Child Welfare Parental Defense Fund.
(2) An agreement described in Subsection (1) shall provide that the county shall pay into the fund an amount defined by a formula established in rule by the office.
(3) (a) After the first year of operation of the fund, any county that elects to initiate participation in the fund, or reestablish participation in the fund after participation was terminated, shall be required to make an equity payment, in addition to the assessment provided in Subsection (2).
(b) The amount of the equity payment described in Subsection (3)(a) shall be determined by the office pursuant to rules established by the office under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) The agreement shall provide for revocation of the agreement for failure to pay assessments on the due date established by rule.
(5) Any county that elects to withdraw from participation in the fund, or whose participation in the fund is revoked due to failure to pay its assessments when due, shall forfeit any right to any previously paid assessments by the county or coverage from the fund.
Section 1228. Section 63A-12-101, which is renumbered from Section 63-2-901 is renumbered and amended to read:
Part 1. Archives and Records Service
[63-2-901]. 63A-12-101. Division of Archives and Records Service created -- Duties.
(1) There is created the Division of Archives and Records Service within the Department of Administrative Services.
(2) The state archives shall:
(a) administer the state's archives and records management programs, including storage of records, central microphotography programs, and quality control;
(b) apply fair, efficient, and economical management methods to the collection, creation, use, maintenance, retention, preservation, disclosure, and disposal of records and documents;
(c) establish standards, procedures, and techniques for the effective management and physical care of records;
(d) conduct surveys of office operations and recommend improvements in current records management practices, including the use of space, equipment, automation, and supplies used in creating, maintaining, storing, and servicing records;
(e) establish standards for the preparation of schedules providing for the retention of records of continuing value and for the prompt and orderly disposal of state records no longer possessing sufficient administrative, historical, legal, or fiscal value to warrant further retention;
(f) establish, maintain, and operate centralized microphotography lab facilities and quality control for the state;
(g) provide staff and support services to the records committee;
(h) develop training programs to assist records officers and other interested officers and employees of governmental entities to administer this chapter;
(i) provide access to public records deposited in the archives;
(j) administer and maintain the Utah Public Notice Website established under Section 63F-1-701;
(k) provide assistance to any governmental entity in administering this chapter; and
(l) prepare forms for use by all governmental entities for a person requesting access to a record.
(3) The state archives may:
(a) establish a report and directives management program; and
(b) establish a forms management program.
(4) The executive director of the Department of Administrative Services may direct the state archives to administer other functions or services consistent with this chapter.
Section 1229. Section 63A-12-102, which is renumbered from Section 63-2-902 is renumbered and amended to read:
[63-2-902
]. 63A-12-102. State archivist -- Duties.(1) With the approval of the governor, the executive director of the Department of Administrative Services shall appoint the state archivist to serve as director of the state archives. The state archivist shall be qualified by archival training, education, and experience.
(2) The state archivist is charged with custody of the following:
(a) the enrolled copy of the Utah constitution;
(b) the acts and resolutions passed by the Legislature;
(c) all records kept or deposited with the state archivist as provided by law;
(d) the journals of the Legislature and all bills, resolutions, memorials, petitions, and claims introduced in the Senate or the House of Representatives;
(e) Indian war records; and
(f) oaths of office of all state officials.
(3) (a) The state archivist is the official custodian of all noncurrent records of permanent or historic value that are not required by law to remain in the custody of the originating governmental entity.
(b) Upon the termination of any governmental entity, its records shall be transferred to the state archives.
Section 1230. Section 63A-12-103, which is renumbered from Section 63-2-903 is renumbered and amended to read:
[63-2-903
]. 63A-12-103. Duties of governmental entities.The chief administrative officer of each governmental entity shall:
(1) establish and maintain an active, continuing program for the economical and efficient management of the governmental entity's records as provided by this chapter;
(2) appoint one or more records officers who will be trained to work with the state archives in the care, maintenance, scheduling, disposal, classification, designation, access, and preservation of records;
(3) ensure that officers and employees of the governmental entity that receive or process records requests receive required training on the procedures and requirements of this chapter;
(4) make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity's activities;
(5) submit to the state archivist proposed schedules of records for final approval by the records committee;
(6) cooperate with the state archivist in conducting surveys made by the state archivist;
(7) comply with rules issued by the Department of Administrative Services as provided by Section [63-2-904] 63A-12-104;
(8) report to the state archives the designation of record series that it maintains;
(9) report to the state archives the classification of each record series that is classified; and
(10) establish and report to the state archives retention schedules for objects that the governmental entity determines are not defined as a record under Section [63-2-103] 63G-2-103, but that have historical or evidentiary value.
Section 1231. Section 63A-12-104, which is renumbered from Section 63-2-904 is renumbered and amended to read:
[63-2-904
]. 63A-12-104. Rulemaking authority.(1) The executive director of the Department of Administrative Services, with the recommendation of the state archivist, may make rules as provided by [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement provisions of this chapter dealing with procedures for the collection, storage, designation, classification, access, and management of records.
(2) A governmental entity that includes divisions, boards, departments, committees, commissions, or other subparts that fall within the definition of a governmental entity under this chapter, may, by rule, specify at which level the requirements specified in this chapter shall be undertaken.
Section 1232. Section 63A-12-105, which is renumbered from Section 63-2-905 is renumbered and amended to read:
[63-2-905
]. 63A-12-105. Records declared property of the state -- Disposition.(1) All records created or maintained by a governmental entity of the state are the property of the state and shall not be mutilated, destroyed, or otherwise damaged or disposed of, in whole or part, except as provided in this chapter.
(2) (a) Except as provided in Subsection (b), all records created or maintained by a political subdivision of the state are the property of the state and shall not be mutilated, destroyed, or otherwise damaged or disposed of, in whole or in part, except as provided in this chapter.
(b) Records which constitute a valuable intellectual property shall be the property of the political subdivision.
(c) The state archives may, upon request from a political subdivision, take custody of any record series of the political subdivision. A political subdivision which no longer wishes to maintain custody of a record which must be retained under the political subdivision's retention schedule or the state archive's retention schedule shall transfer it to the state archives for safekeeping and management.
(3) It is unlawful for a governmental entity or political subdivision to intentionally mutilate, destroy, or otherwise damage or dispose of a record series knowing that such mutilation, destruction, or damage is in contravention of the political subdivision's or the state archive's properly adopted retention schedule.
Section 1233. Section 63A-12-106, which is renumbered from Section 63-2-906 is renumbered and amended to read:
[63-2-906
]. 63A-12-106. Certified and microphotographed copies.(1) Upon demand, the state archives shall furnish certified copies of a record in its exclusive custody that is classified public or that is otherwise determined to be public under this chapter by the originating governmental entity, the records committee, or a court of law. When certified by the state archivist under the seal of the state archives, the copy has the same legal force and effect as if certified by the originating governmental entity.
(2) The state archives may microphotograph records when it determines that microphotography is an efficient and economical way to care, maintain, and preserve the record. A transcript, exemplification, or certified copy of a microphotograph has the same legal force and effect as the original. Upon review and approval of the microphotographed film by the state archivist, the source documents may be destroyed.
(3) The state archives may allow another governmental entity to microphotograph records in accordance with standards set by the state archives.
Section 1234. Section 63A-12-107, which is renumbered from Section 63-2-907 is renumbered and amended to read:
[63-2-907
]. 63A-12-107. Right to replevin.To secure the safety and preservation of records, the state archivist or his representative may examine all records. On behalf of the state archivist, the attorney general may replevin any records that are not adequately safeguarded.
Section 1235. Section 63A-12-108, which is renumbered from Section 63-2-908 is renumbered and amended to read:
[63-2-908
]. 63A-12-108. Inspection and summary of record series.The state archives shall provide for public inspection of the title and a summary description of each record series.
Section 1236. Section 63A-12-109, which is renumbered from Section 63-2-909 is renumbered and amended to read:
[63-2-909
]. 63A-12-109. Records made public after 75 years.(1) The classification of a record is not permanent and a record that was not classified public under this act shall become a public record when the justification for the original or any subsequent restrictive classification no longer exists. A record shall be presumed to be public 75 years after its creation, except that a record that contains information about an individual 21 years old or younger at the time of the record's creation shall be presumed to be public 100 years after its creation.
(2) Subsection (1) does not apply to records of unclaimed property held by the state treasurer in accordance with Title 67, Chapter 4a, Unclaimed Property Act.
Section 1237. Section 63B-1a-401 is amended to read:
63B-1a-401
. Status of bond records -- Compliance with Registered Public Obligations Act.(1) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(2) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act.
Section 1238. Section 63B-1b-101, which is renumbered from Section 63-65-1 is renumbered and amended to read:
CHAPTER 1b. STATE FINANCING CONSOLIDATION ACT
Part 1. General Provisions
[63-65-1]. 63B-1b-101. Title.
This chapter [shall be] is known as the "State Financing Consolidation Act."
Section 1239. Section 63B-1b-102, which is renumbered from Section 63-65-2 is renumbered and amended to read:
[63-65-2
]. 63B-1b-102. Definitions.As used in this chapter:
(1) "Agency bonds" means any bond, note, contract, or other evidence of indebtedness representing loans or grants made by an authorizing agency.
(2) "Authorized official" means the state treasurer or other person authorized by a bond document to perform the required action.
(3) "Authorizing agency" means the board, person, or unit with legal responsibility for administering and managing revolving loan funds.
(4) "Bond document" means:
(a) a resolution of the commission; or
(b) an indenture or other similar document authorized by the commission that authorizes and secures outstanding revenue bonds from time to time.
(5) "Commission" means the State Bonding Commission created in Section 63B-1-201.
(6) "Revenue bonds" means any special fund revenue bonds issued under this chapter.
(7) "Revolving Loan Funds" means:
(a) the Water Resources Conservation and Development Fund, created in Section 73-10-24;
(b) the Water Resources Construction Fund, created in Section 73-10-8;
(c) the Water Resources Cities Water Loan Fund, created in Section 73-10-22;
(d) the Clean Fuel Conversion Funds, created in Title 19, Chapter 1, Part 4, Clean Fuels and Vehicle Technology Program Act;
(e) the Water Development Security Fund and its subaccounts created in Section 73-10c-5;
(f) the Agriculture Resource Development Fund, created in Section 4-18-6;
(g) the Utah Rural Rehabilitation Fund, created in Section 4-19-4;
(h) the Permanent Community Impact Fund, created in Section 9-4-303;
(i) the Petroleum Storage Tank Loan Fund, created in Section 19-6-405.3; and
(j) the Transportation Infrastructure Loan Fund, created in Section 72-2-202.
Section 1240. Section 63B-1b-201, which is renumbered from Section 63-65-3 is renumbered and amended to read:
Part 2. Officers in State Treasurer's Office
[63-65-3]. 63B-1b-201. Investment officer -- Powers and duties.
(1) There is created within the Office of the State Treasurer an investment banking officer to advise, counsel, and render technical assistance to authorizing agencies in the management of state loan and grant programs.
(2) This officer shall:
(a) work cooperatively with the staff and boards of authorizing agencies as an advisor on technical financial aspects concerning loan and grant programs authorized by law;
(b) coordinate procedures for the closing of and assist authorizing agencies in closing all loans and grants of funds or other subsidy agreements;
(c) analyze, in conjunction with the appropriate authorizing agency, the financial feasibility and economic and capital efficiency of projects of applicants to authorizing agencies for loans and grants, review financing options, and make recommendations to each authorizing agency regarding terms of loans or grants and levels of state subsidy in accordance with the financial feasibility of the project and the efficiency of available state capital;
(d) coordinate and consolidate, to the extent possible, all financial and legal analysis of financing plans and closings of loans and grants made by each authorizing agency; and
(e) provide an annual report of his activities to the state treasurer, the governor, the Division of Finance, and the boards of each authorizing agency.
(3) The analysis under Subsection (2)(c) shall include consideration of the following criteria:
(a) a demonstration of need based on the applicant's overall financial profile, including overlapping debt, tax levies, user rates, fees, charges, assessments, and other revenue and obligations existing within the community as a whole;
(b) the ability of the applicant to obtain financing from other, preferably private, sources on terms and conditions reasonably affordable;
(c) the availability and advisability of financing methods such as loans, grants, interest buy down arrangements, bond insurance, loan or bond guarantees, or any other appropriate method;
(d) the economic and efficiency of capital advantages enuring to the authorizing agency if the financing plan is adopted;
(e) a demonstration of local public support for the financing plan; and
(f) availability of other funds and financing methods under law.
(4) Each authorizing agency shall consult with and cooperate with the officer and shall consider his recommendations before proceeding to fund a project, but the final decision as to the appropriate financing plan shall rest with the board of the authorizing agency according to their legal authority existing at the time.
Section 1241. Section 63B-1b-202, which is renumbered from Section 63-65-4 is renumbered and amended to read:
[63-65-4
]. 63B-1b-202. Custodial officer -- Powers and duties.(1) (a) There is created within the Division of Finance an officer responsible for the care, custody, safekeeping, collection, and accounting of all bonds, notes, contracts, trust documents, and other evidences of indebtedness:
(i) owned or administered by the state or any of its agencies; and
(ii) except as provided in Subsection (1)(b), relating to revolving loan funds.
(b) Notwithstanding Subsection (1)(a), the officer described in Subsection (1)(a) is not responsible for the care, custody, safekeeping, collection, and accounting of a bond, note, contract, trust document, or other evidence of indebtedness relating to the:
(i) Agriculture Resource Development Fund, created in Section 4-18-6;
(ii) Utah Rural Rehabilitation Fund, created in Section 4-19-4;
(iii) Petroleum Storage Tank Loan Fund, created in Section 19-6-405.3;
(iv) Olene Walker Housing Loan Fund, created in Section 9-4-702;
(v) Business Development for Disadvantaged Rural Communities Restricted Account, created in Section [63-38f-2003] 63M-1-2003; and
(vi) Brownfields Fund, created in Section 19-8-120.
(2) (a) Each authorizing agency shall deliver to this officer for the officer's care, custody, safekeeping, collection, and accounting all bonds, notes, contracts, trust documents, and other evidences of indebtedness:
(i) owned or administered by the state or any of its agencies; and
(ii) except as provided in Subsection (1)(b), relating to revolving loan funds.
(b) This officer shall:
(i) establish systems, programs, and facilities for the care, custody, safekeeping, collection, and accounting for the bonds, notes, contracts, trust documents, and other evidences of indebtedness submitted to the officer under this Subsection (2); and
(ii) shall make available updated reports to each authorizing agency as to the status of loans under their authority.
(3) The officer described in Section [63-65-3] 63B-1b-201 shall deliver to the officer described in Subsection (1)(a) for the care, custody, safekeeping, collection, and accounting by the officer described in Subsection (1)(a) of all bonds, notes, contracts, trust documents, and other evidences of indebtedness closed as provided in Subsection [63-65-3] 63B-1b-201(2)(b).
Section 1242. Section 63B-1b-301, which is renumbered from Section 63-65-5 is renumbered and amended to read:
Part 3. Transfer or Liquidation of Bonds
[63-65-5]. 63B-1b-301. State treasurer may sell, assign, or liquidate agency bonds -- Marketing plan required.
(1) One or more authorizing agencies may from time to time request the state treasurer to sell, assign, or liquidate agency bonds on behalf of the authorizing agencies as provided in Section [63-65-6] 63B-1b-302.
(2) (a) Agency bonds shall be sold, assigned, transferred, or liquidated by the state treasurer pursuant to a marketing plan provided by the state treasurer under Section [63-65-6] 63B-1b-302.
(b) The governor or the governor's designee and the appropriate authorizing agency shall approve the marketing plan, in writing.
Section 1243. Section 63B-1b-302, which is renumbered from Section 63-65-6 is renumbered and amended to read:
[63-65-6
]. 63B-1b-302. Marketing plan and related agreements -- Use of proceeds of liquidation of agency bonds -- Report to Division of Finance -- Special funds -- Limitation on liability.(1) (a) Before the liquidation of any agency bonds pursuant to the request of an authorizing agency as provided in Section [63-65-5] 63B-1b-301, the state treasurer shall provide a written marketing plan to the governor or the governor's designee and the appropriate authorizing agency or agencies for written approval.
(b) The marketing plan may provide for:
(i) the terms and conditions under which the agency bonds may be sold, assigned, or liquidated by the state treasurer;
(ii) the particular agency bonds to be sold, assigned, or liquidated, or a maximum par amount of agency bonds to be sold, assigned, or liquidated;
(iii) the price or a range of prices of the agency bonds to be sold, assigned, or liquidated, which may be at, above, or below par, as the state treasurer determines in the marketing plan;
(iv) the terms and conditions of agreements entered into by the state treasurer on behalf of the state with financial and other institutions for financial advisory services, trustee services, insurance, letters of credit, reimbursement agreements, tender agreements, put agreements, repurchase agreements, and indexing and tender agent agreements to facilitate the marketing plan or to secure or provide liquidity to support any agreement, obligation, or contract entered into by the state treasurer on behalf of the state in connection with the sale, assignment, or liquidation of the agency bonds and any repurchase, remarketing, or other liquidation of the agency bonds and any insurance, repurchase, remarketing, tender, put, letter of credit, or agreement, obligation, or contract entered in connection with them, including payment of fees, charges, or other amounts coming due under agreements entered into with financial or other institutions by the state treasurer, from the proceeds of any sale, assignment, or other liquidation of agency bonds, and from any investment earnings on such proceeds, and no other state money may be used for this purpose;
(v) the application of the proceeds received from the sale, assignment, or liquidation of agency bonds, and any investment earnings on them; and
(vi) all other details relating to the sale, assignment, or liquidation of agency bonds and any related, attached, or accompanying insurance, tender, put, repurchase, remarketing, letter of credit, or other agreement, obligation, or contract deemed necessary or appropriate by the state treasurer.
(c) The state treasurer, on behalf of the state, may enter into the agreements contemplated in the marketing plan.
(2) (a) After the payment of, or provision for payment of, the fees, charges, or other amounts pursuant to Subsection (1), the state treasurer shall deliver the proceeds of the sale, assignment, or other liquidation of agency bonds under this section to the appropriate authorizing agency to be applied as authorized by the law creating or authorizing the loan or grant program of the authorizing agency.
(b) (i) The marketing plan may provide that if any agreement, obligation, or contract entered into by the state treasurer on behalf of the state with respect to the sale, repurchase, remarketing, tender, put, assignment, or other liquidation of the agency bonds remains outstanding under the marketing plan, the proceeds, and investment earnings on them, may be pledged, escrowed, held in trust, or otherwise held in reserve by the state treasurer to secure these agreements, obligations, or contracts of the state treasurer entered into on behalf of the state.
(ii) Any obligations of the state treasurer entered into on behalf of the state under Subsection (2)(b)(i) shall be limited solely to those proceeds and the investment earnings on them.
(c) No holder or beneficiary of any put, tender, repurchase, remarketing, or other similar rights under such agreements, obligations, or contracts of the state treasurer entered into on behalf of the state has any rights against the state, the state treasurer or any state agency, or funds of the state, the state treasurer, or any state agency, other than those expressly set forth in the agreement or contract embodying those rights, consistent with the marketing plan and the limitation set forth in this Subsection (2).
(3) (a) (i) The state treasurer may establish more than one marketing plan under this section.
(ii) Agency bonds may be combined in any combination and sold, pledged, assigned, or otherwise liquidated in any amounts, at any time, and from time to time as provided in the applicable marketing plan.
(b) The state treasurer may, by order, set forth the sale price, form, manner of execution, payment, manner of sale, assignment, or other liquidation, and all details of agreements or contracts entered into in connection with them, including the application of any proceeds and the investment earnings on them, consistent with the marketing plan and this section.
(c) The state treasurer shall make a verified return to the Division of Finance immediately upon completion of each transaction of:
(i) the amount of agency bonds involved;
(ii) the amounts received in each transaction entered into under this section; and
(iii) a brief description of any pledge or other restriction on the proceeds of the transaction or the investment earnings on the proceeds.
(4) The state treasurer may:
(a) create any funds necessary to carry out the purposes of this section;
(b) invest all money held in those funds in accordance with Title 51, Chapter 7, State Money Management Act, and in accordance with any agreement of the state, pursuant to the marketing plan, with respect to the investment and application of the money; and
(c) invest money held in the funds in obligations of any state, territory, or possession of the United States, or of any of the political subdivisions of any state, territory, or possession of the United States, or of the District of Columbia, described in Section 103, Internal Revenue Code of 1986.
(5) The limitations contained in this section with respect to the liability of the state or its agencies may not be construed to limit or alter the obligations of political subdivisions on the bonds in the hands of the holders of them in any manner.
Section 1244. Section 63B-1b-401, which is renumbered from Section 63-65-7 is renumbered and amended to read:
Part 4. Issuance of Bonds
[63-65-7]. 63B-1b-401. Pledge of agency bonds to pay revenue bonds -- Contents of financing agreements -- Use of monies received by authorizing agencies.
(1) With the approval of the relevant authorizing agency, the State Bonding Commission may pledge, assign, or otherwise transfer any agency bonds, any monies payable on or with respect to them, any legally available monies or other security administered by an authorizing agency, or any combination of bonds, monies, or other security to provide for the payment of revenue bonds issued under Section [63-65-8] 63B-1b-402 and the payment of any amounts due under agreements and contracts described in Subsection [63-65-8] 63B-1b-402(9).
(2) (a) Before issuing revenue bonds under Section [63-65-8] 63B-1b-402, the commission shall enter into a financing agreement with the appropriate authorizing agency or agencies.
(b) This agreement shall specify:
(i) any agency bonds, monies, or other security to be pledged by the commission to provide for the payment of the revenue bonds;
(ii) the amount to be paid to the order of the authorizing agency or agencies for the agency bonds, monies, or other security; and
(iii) other matters that the commission considers necessary or appropriate.
(3) The amounts received by each authorizing agency from the proceeds of the revenue bonds, together with all amounts paid to the authorizing agencies pursuant to Subsection [63-65-8] 63B-1b-402(10), shall be applied by the authorizing agency as authorized by the law creating or authorizing the loan or grant program of the authorizing agency.
Section 1245. Section 63B-1b-402, which is renumbered from Section 63-65-8 is renumbered and amended to read:
[63-65-8
]. 63B-1b-402. Commission may authorize revenue bonds -- Contents of bond document -- Special and reserve funds -- Limitation on liability -- Restoration of monies in reserve funds -- Payment of bonds and other technical requirements -- Refunding -- Report to Division of Finance.(1) (a) In order to provide authorizing agencies with an alternative method of liquidating agency bonds and, by doing so, providing authorizing agencies with additional funds to further the purposes of authorizing agencies, the commission may authorize the issuance of revenue bonds from time to time by the state.
(b) These revenue bonds shall be payable solely from a special fund established by the state treasurer as provided in Subsection (4).
(c) Revenue bonds may be sold at public or private sale and may be issued in one or more series.
(2) Revenue bonds may be authorized, issued, and sold by the commission on behalf of the state at a time or times and in a manner set forth in a bond document that provides for:
(a) the terms and conditions of sale, including price, whether at, below or above face value;
(b) interest rates, including a variable rate;
(c) authorized denomination;
(d) maturity dates;
(e) form;
(f) manner of execution;
(g) manner of authentication;
(h) place and medium of payment;
(i) redemption terms;
(j) authorized signatures of public officials; and
(k) other provisions and details considered necessary or appropriate.
(3) To the extent set forth in the resolution, the proceeds of revenue bonds may be used for the purposes set forth in Subsection (1) and to:
(a) provide for any necessary or desirable reserve fund as provided for in Subsection (5); and
(b) pay fees, charges, and other amounts related to the issuance and sale of the revenue bonds.
(4) (a) As provided in the bond document, the principal of, premium, if any, and interest on, any issue of revenue bonds is payable solely from and secured by one or more special funds consisting of:
(i) the pledge and assignment of any agency bonds, including all amounts payable on or with respect to them, and other monies and security, as provided for in an agreement entered into under Subsection [63-65-7] 63B-1b-401(2);
(ii) amounts on deposit in the reserve fund, if any, established under Subsection (5);
(iii) amounts available pursuant to any security device or credit enhancement device that the commission authorizes for the purpose of improving the marketability of the revenue bonds; and
(iv) other amounts available and pledged by the commission to secure payment of that issue of revenue bonds.
(b) Owners of revenue bonds do not have recourse against the general funds or general credit of the state or its political subdivisions or agencies, but this limitation does not limit or alter the obligations of political subdivisions on agency bonds in any manner.
(c) Revenue bonds do not constitute nor give rise to a general obligation or liability of, or constitute a charge or lien against, the general credit or taxing power of the state or its political subdivisions or agencies, including any authorizing agency.
(d) Revenue bonds shall contain on their face a statement that:
(i) the revenue bonds are payable solely from the sources set forth in this Subsection (4) and specified in the bond document with respect to the revenue bonds;
(ii) neither the state nor any political subdivision of the state is obligated to pay the revenue bonds; and
(iii) neither the faith and credit nor the taxing power of the state or any of its political subdivisions is pledged to the payment of principal or redemption price of, or premium, if any, or interest on the revenue bonds.
(e) Revenue bonds do not constitute debt of the state within the meaning of Utah Constitution Article XIII, Sec. 5 (3) or Article XIV, Sec. 1.
(5) (a) The commission may establish a reserve fund with respect to any issue of revenue bonds.
(b) If a reserve fund is established, the bond document relating to that issue of revenue bonds shall specify:
(i) the minimum amount that is required to be on deposit in the reserve fund;
(ii) the amount of sale proceeds from the sale of that issue of revenue bonds that shall be deposited in the reserve fund; and
(iii) the manner in which any deficiency in the reserve fund shall be replenished.
(c) (i) On or before the first day of December of each year, the state treasurer shall certify to the governor and the director of the Division of Finance the amount, if any, that may be required to restore all reserve funds established to the minimum amount specified by the state treasurer with respect to each reserve fund.
(ii) The governor may request an appropriation from the Legislature equal to the certified amount in order to restore each reserve fund to the specified minimum amount.
(6) (a) (i) The commission may provide in the bond document that any signature of a public official authorized to sign revenue bonds may be by the facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the revenue bonds.
(ii) If all signatures of public officials on the revenue bonds are facsimile signatures, the bond document shall provide for a manual authenticating signature on the revenue bonds by or on behalf of a designated authenticating agent.
(iii) If an official ceases to hold office before delivery of the revenue bonds signed by that official, the signature or facsimile signature of the official is valid and sufficient for all purposes.
(b) A facsimile of the seal of the state may be imprinted, engraved, stamped, or otherwise placed on the revenue bonds.
(7) (a) The commission may provide in the bond document for the replacement of lost, destroyed, stolen, or mutilated revenue bonds or for the exchange of revenue bonds after issuance for revenue bonds of smaller or larger denominations.
(b) Revenue bonds in changed denominations shall:
(i) be exchanged for the original revenue bonds in the aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, be of the same series, mature on the same date, and be as nearly as practicable in the same form as the original revenue bonds.
(8) (a) (i) Revenue bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(ii) The commission may provide for the services and payment for the services of one or more financial institutions, other entities or persons, or nominees, within or outside the state, for:
(A) authentication;
(B) registration;
(C) transfer, including record, bookkeeping, or book entry functions;
(D) exchange; and
(E) payment.
(b) The records of ownership, registration, transfer, and exchange of the revenue bonds, and of persons to whom payment with respect to them is made, are classified as private or protected as defined in [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(c) The revenue bonds and any evidences of participation interests in the revenue bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 (a), Internal Revenue Code of 1986, or any comparable predecessor or successor provision, and applicable regulations.
(9) (a) The commission may authorize the execution and delivery of whatever agreements and contracts that the commission considers necessary and appropriate in connection with the issuance of revenue bonds.
(b) These agreements and contracts may include agreements and contracts with financial and other institutions for financial advisory services, trustee services, insurance, letters of credit, reimbursement agreements, tender agreements, put agreements, repurchase agreements, and indexing and tender agent agreements to:
(i) facilitate the sale of the revenue bonds; or
(ii) secure or provide liquidity to support any agreement, obligation, or contract entered into by an authorized officer on behalf of the state in connection with:
(A) the issuance and sale of the revenue bonds;
(B) any repurchase, remarketing, or other pledge of the revenue bonds; and
(C) any insurance, repurchase, remarketing, tender, put, letter of credit, or agreement, obligation, or contract entered into in connection with them, including payment of fees, charges, or other amounts coming due under agreements entered into with financial or other institutions on behalf of the state.
(10) When all revenue bonds of an issue have been paid, or provision for their payment has been made, there shall be transferred to the appropriate authorizing agency or agencies, in the amounts and in the manner that the commission considers fair and equitable, and to the extent not required to secure payment of the revenue bonds and related fees, charges, and other amounts:
(a) all amounts remaining on deposit in any reserve fund established with respect to the issue of revenue bonds; and
(b) all other amounts and all agency bonds held by the commission and any trustee and pledged to the payment of the revenue bonds.
(11) (a) The state treasurer or the commission may create any funds and accounts necessary to carry out the purposes of this section.
(b) (i) The state treasurer shall administer and maintain those funds and accounts.
(ii) The state treasurer may invest all monies held in those funds and accounts in accordance with Title 51, Chapter 7, State Money Management Act, and in accordance with the bond document or any other agreement entered into on behalf of the state as authorized by the bond document.
(iii) The commission may not approve the bond document or other agreement with respect to the investment and application of these monies unless the state treasurer has affirmatively approved any investment provisions contained in the bond document or other agreement.
(c) All income from the monies invested in a fund or account created under this Subsection (11) shall accrue to the benefit of the fund or account and shall be used for the purpose for which the fund or account was established.
(12) (a) The commission may authorize the issuance of refunding revenue bonds of the state in accordance with Title 11, Chapter 27, Utah Refunding Bond Act, for the purpose of refunding any revenue bonds.
(b) The state is considered a "public body" and the commission its "governing body" for purposes of that act.
(13) (a) Revenue bonds may not be issued under this section until an authorized official finds and certifies that all conditions precedent to the issuance of the revenue bond have been satisfied.
(b) A recital on any revenue bond of a finding and certification conclusively establishes the completion and satisfaction of all conditions of this section.
(14) Revenue bonds, interest paid on revenue bonds, and any income from revenue bonds is not taxable within this state for any purpose, except for the corporate franchise tax.
(15) (a) Revenue bonds are legal investments for all state trust funds, insurance companies, banks, trust companies, and the State School Fund.
(b) Revenue bonds may also be used as collateral to secure legal obligations.
(16) Immediately upon the issuance of each issue of revenue bonds, an authorized official shall make a verified return to the Division of Finance of:
(a) the aggregate principal amount of revenue bonds issued;
(b) the amount of proceeds of sale of revenue bonds received by the state;
(c) the amount paid to the authorizing agency or agencies for the agency bonds;
(d) the total amount of all fees and expenses relating to the issuance of the revenue bonds;
(e) the amount of sale proceeds of the revenue bonds used to pay fees and expenses; and
(f) the amount of sale proceeds of the revenue bonds deposited in the reserve fund established with respect to the issue of revenue bonds, if any.
Section 1246. Section 63B-1b-501, which is renumbered from Section 63-65-8.1 is renumbered and amended to read:
Part 5. Tax Status
[63-65-8.1]. 63B-1b-501. Tax status -- Exemption.
The revenue bonds issued under this chapter, any interest paid on the revenue bonds, and any income from the bonds is not taxable in Utah for any purpose, except for the corporate franchise tax.
Section 1247. Section 63B-1b-601, which is renumbered from Section 63-65-8.2 is renumbered and amended to read:
Part 6. Notice Requirements
[63-65-8.2]. 63B-1b-601. Publication of resolution or notice -- Limitation on actions to contest legality.
(1) The commission may either:
(a) publish once in a newspaper having general circulation in Utah any resolution adopted by it; or
(b) in lieu of publishing the entire resolution, publish a notice of revenue bonds to be issued, titled as such, containing:
(i) the purpose of the revenue bond issue;
(ii) the maximum principal amount that may be issued;
(iii) the maximum number of years over which the revenue bonds may mature;
(iv) the maximum interest rate that the revenue bonds may bear, if any;
(v) the maximum discount from par, expressed as a percentage of principal amount, at which the revenue bonds may be sold; and
(vi) a statement that a copy of the resolution or other bond document may be examined at the office of the state treasurer during regular business hours for at least 30 days after the publication of the notice.
(2) For 30 days after the date of publication, any interested person may contest:
(a) the legality of the resolution or other bond document;
(b) any of the revenue bonds authorized under it; or
(c) any of the provisions made for the repayment of the revenue bonds.
(3) After 30 days, a person may not, for any cause, contest:
(a) the legality of the resolution or other bond document;
(b) any of the revenue bonds authorized under the resolution or other bond document; or
(c) any of the provisions made for the security and repayment of the revenue bonds.
Section 1248. Section 63B-1b-701, which is renumbered from Section 63-65-9 is renumbered and amended to read:
Part 7. Payment of Expenses
[63-65-9]. 63B-1b-701. Payment of expenses.
(1) All expenses incurred by the state under this chapter may be paid:
(a) in the case of expenses incurred under Section [63-65-6] 63B-1b-302, from the proceeds of the liquidation of agency bonds; and
(b) in the case of expenses incurred under Section [63-65-8] 63B-1b-402, from the proceeds of sale of revenue bonds.
(2) (a) Any expenses incurred by the state under this chapter that are not paid from the proceeds of the liquidation of agency bonds or the issuance of state revenue bonds shall be paid from the revolving funds of the authorizing agencies.
(b) These expenses are not a charge to or an appropriation from the General Fund.
Section 1249. Section 63B-2-102 is amended to read:
63B-2-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $80,000,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
CAPITAL IMPROVEMENTS
1 Alterations, Repairs, and Improvements $8,413,900
TOTAL IMPROVEMENTS $8,413,900
CAPITAL FACILITIES CONSTRUCTION
ESTIMATED
OPERATIONS
AND
PROJECT PROJECT AMOUNT MAINTENANCE
PRIORITY DESCRIPTION FUNDED COSTS
1 Corrections - Northern Utah $2,729,700 $158,000
Community Corrections Center Phase II
2 University of Utah $10,200,000 $881,600
Marriot Library Phase II
3 Ogden Courts Building Phase II $12,096,000 $340,000
4 Utah National Guard - $397,800 $70,500
Southeast Utah Armory Phase II
5 Southern Utah University $7,004,400 $427,000
Library Phase II
6 Utah Valley Special Events $11,845,300 $536,900
Center Phase II
7 Salt Lake Community College $1,300,000 $0
- Land
8 Tax Commission Building $14,224,000 $812,000
9 Dixie College Business Building $2,823,300 $187,800
10 Salt Lake Community College $4,009,500 $257,600
South City 3rd Floor and Boiler
11 Public Education - $3,456,100 $124,800
Deaf and Blind Classrooms
TOTAL CONSTRUCTION $70,086,100
TOTAL IMPROVEMENTS AND $78,500,000
CONSTRUCTION
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1250. Section 63B-2-105 is amended to read:
63B-2-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1251. Section 63B-2-205 is amended to read:
63B-2-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1252. Section 63B-2-301 is amended to read:
63B-2-301
. Legislative intent -- Additional projects.It is the intent of the Legislature that:
(1) The Department of Employment Security use monies in the special administrative fund to plan, design, and construct a Davis County facility under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(2) The University of Utah may use donated funds to plan, design, and construct the Nora Eccles Harrison addition under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(3) The University of Utah may use hospital funds to plan, design, and construct the West Patient Services Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(4) The University of Utah may use federal funds to plan, design, and construct the Computational Science Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(5) The Board of Regents may issue revenue bonds to provide:
(a) $6,700,000 to plan, design, and construct single student housing at Utah State University under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206; and
(b) additional monies necessary to:
(i) pay costs incident to the issuance and sale of the bonds;
(ii) pay interest on the bonds that accrues during construction and acquisition of the project and for up to one year after construction is completed; and
(iii) fund any reserve requirements for the bonds.
(6) Utah State University may use federal funds to plan, design, and construct the Natural Resources Lab addition under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(7) Utah State University may use funds derived from property sales to plan, design, and construct emergency relocation facilities for the Farmington Botanical Gardens under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(8) Utah State University may use institutional funds to plan, design, and construct an institutional residence for the president under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(9) Weber State University may use discretionary funds to construct a remodel and expansion of the stores building and mail service facilities under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(10) Weber State University may use fees and auxiliary revenue to plan, design, and construct a remodel and expansion of the Shepherd Student Union Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(11) Southern Utah University may use donated funds to plan, design, and construct an alumni house under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(12) The College of Eastern Utah may use auxiliary revenues and other fees to:
(a) make lease or other payments;
(b) redeem revenue bonds or repay loans issued on behalf of the college; and
(c) plan, design, and construct a 200 person residence hall under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(13) The Sevier Valley Applied Technology Center may use private and Community Impact Board funds, if approved, to plan, design, and construct a performing arts/multi-use facility under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(14) Ogden City and Weber County may have offices and related space for their attorneys included in the Ogden Courts building if the city and county are able to provide upfront funding to cover all costs associated with the design and construction of that space. In addition, the city and county shall cover their proportionate share of all operations and maintenance costs of their facility, including future major repairs to the building.
(15) If the Legislature authorizes the Division of Facilities Construction and Management to enter into a lease purchase agreement for the Department of Human Services facility at 1385 South State Street in Salt Lake City or for the State Board of Education facility and adjacent space in Salt Lake City, or for both of those facilities, the State Building Ownership Authority, at the reasonable rates and amounts it may determine, and with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget, may seek out the most cost effective lease purchase plans available to the state and may, pursuant to [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, certificate out interests in, or obligations of the authority pertaining to:
(a) the lease purchase obligation; or
(b) lease rental payments under the lease purchase obligation.
(16) Salt Lake Community College may use donated funds to plan, design, and construct an amphitheater under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by him as authorized by Section 63A-5-206.
(17) For the Tax Commission building, that:
(a) All costs associated with the construction and furnishing of the Tax Commission building that are incurred before the issuance of the 1993 general obligation bonds be reimbursed by bond proceeds.
(b) The maximum amount of cost that may be reimbursed from the 1993 general obligation bond proceeds for the Tax Commission building and furnishings may not exceed $14,230,000.
(c) This intent statement for Subsection (17) constitutes a declaration of official intent under Section 1.103-18 of the U.S. Treasury Regulations.
Section 1253. Section 63B-3-102 is amended to read:
63B-3-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $64,600,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
CAPITAL IMPROVEMENTS
1 Alterations, Repairs, and Improvements $5,000,000
TOTAL IMPROVEMENTS $5,000,000
CAPITAL AND ECONOMIC DEVELOPMENT
ESTIMATED
OPERATIONS
AND
PROJECT PROJECT AMOUNT MAINTENANCE
PRIORITY DESCRIPTION FUNDED COSTS
1 University of Utah $13,811,500 $881,600
Marriott Library Phase III (Final)
2 Bridgerland Applied Technology Center $2,400,000 $0
Utah State University Space
3 Weber State University - $2,332,100 $9,600
Heat Plant
4 Department of Human Services $4,180,000 $400,000
- Division of Youth Corrections renamed
in 2003 to the Division of Juvenile
Justice Services
5 Snow College - $3,885,100 $224,500
Administrative Services/Student Center
6 Ogden Weber Applied $750,000 $0
Technology Center -
Metal Trades Building Design and
Equipment Purchase
7 Department of Corrections $1,237,100 $72,000
B-Block Remodel
8 Utah State University - $550,000 $0
Old Main Phase III Design
9 Department of Corrections - 144 bed $6,700,000 $168,800
Uintah Expansion
10 Southern Utah University $5,630,400 $314,200
Administrative Services/Student Center
11 Anasazi Museum $760,200 $8,500
12 Hill Air Force Base - $9,500,000 $0
Easements Purchase
13 Signetics Building Remodel $2,000,000 $0
14 Antelope Island Visitors Center $750,000 $30,000
15 State Fair Park - $150,000 $0
Master Study
16 Utah National Guard - Draper Land $380,800 $0
17 Davis Applied Technology Center - $325,000 $0
Design
18 Palisade State Park - Land $800,000 $0
and Park Development
19 Department of Human Services $80,000 $0
- Cedar City Land
20 Department of Human Services $163,400 $0
- Clearfield Land
21 Electronic technology, $2,500,000 $0
equipment, and hardware
TOTAL CAPITAL AND ECONOMIC DEVELOPMENT $58,885,600
TOTAL IMPROVEMENTS AND
CAPITAL AND ECONOMIC DEVELOPMENT $63,885,600
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1254. Section 63B-3-105 is amended to read:
63B-3-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1255. Section 63B-3-205 is amended to read:
63B-3-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1256. Section 63B-3-301 is amended to read:
63B-3-301
. Legislative intent -- Additional projects.(1) It is the intent of the Legislature that, for any lease purchase agreement that the Legislature may authorize the Division of Facilities Construction and Management to enter into during its 1994 Annual General Session, the State Building Ownership Authority, at the reasonable rates and amounts it may determine, and with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget, may seek out the most cost effective and prudent lease purchase plans available to the state and may, pursuant to [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, certificate out interests in, or obligations of the authority pertaining to:
(a) the lease purchase obligation; or
(b) lease rental payments under the lease purchase obligation.
(2) It is the intent of the Legislature that the Department of Transportation dispose of surplus real properties and use the proceeds from those properties to acquire or construct through the Division of Facilities Construction and Management a new District Two Complex.
(3) It is the intent of the Legislature that the State Building Board allocate funds from the Capital Improvement appropriation and donations to cover costs associated with the upgrade of the Governor's Residence that go beyond the restoration costs which can be covered by insurance proceeds.
(4) (a) It is the intent of the Legislature to authorize the State Building Ownership Authority under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, to issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $10,600,000 for the construction of a Natural Resources Building in Salt Lake City, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(c) It is the intent of the Legislature that the operating budget for the Department of Natural Resources not be increased to fund these lease payments.
(5) (a) It is the intent of the Legislature to authorize the State Building Ownership Authority under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, to issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $8,300,000 for the acquisition of the office buildings currently occupied by the Department of Environmental Quality and approximately 19 acres of additional vacant land at the Airport East Business Park in Salt Lake City, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(6) (a) It is the intent of the Legislature to authorize the State Building Ownership Authority under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, to issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $9,000,000 for the acquisition or construction of up to two field offices for the Department of Human Services in the southwestern portion of Salt Lake County, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(7) (a) It is the intent of the Legislature to authorize the State Building Ownership Authority under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, to issue or execute obligations or enter into or arrange for lease purchase agreements in which participation interests may be created, to provide up to $5,000,000 for the acquisition or construction of up to 13 stores for the Department of Alcoholic Beverage Control, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(c) It is the intent of the Legislature that the operating budget for the Department of Alcoholic Beverage Control not be increased to fund these lease payments.
(8) (a) It is the intent of the Legislature to authorize the State Building Ownership Authority under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, to issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $6,800,000 for the construction of a Prerelease and Parole Center for the Department of Corrections, containing a minimum of 300 beds, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(9) If S.B. 275, 1994 General Session, which authorizes funding for a Courts Complex in Salt Lake City, becomes law, it is the intent of the Legislature that:
(a) the Legislative Management Committee, the Interim Appropriation Subcommittees for General Government and Capital Facilities and Executive Offices, Courts, and Corrections, the Office of the Legislative Fiscal Analyst, the Governor's Office of Planning and Budget, and the State Building Board participate in a review of the proposed facility design for the Courts Complex no later than December 1994; and
(b) although this review will not affect the funding authorization issued by the 1994 Legislature, it is expected that Division of Facilities Construction and Management will give proper attention to concerns raised in these reviews and make appropriate design changes pursuant to the review.
(10) It is the intent of the Legislature that:
(a) the Division of Facilities Construction and Management, in cooperation with the Division of Youth Corrections renamed in 2003 to the Division of Juvenile Justice Services, develop a flexible use prototype facility for the Division of Youth Corrections renamed in 2003 to the Division of Juvenile Justice Services;
(b) the development process use existing prototype proposals unless it can be quantifiably demonstrated that the proposals cannot be used;
(c) the facility is designed so that with minor modifications, it can accommodate detention, observation and assessment, transition, and secure programs as needed at specific geographical locations;
(d) (i) funding as provided in the fiscal year 1995 bond authorization for the Division of Youth Corrections renamed in 2003 to the Division of Juvenile Justice Services is used to design and construct one facility and design the other;
(ii) the Division of Youth Corrections renamed in 2003 to the Division of Juvenile Justice Services shall:
(A) determine the location for the facility for which design and construction are fully funded; and
(B) in conjunction with the Division of Facilities Construction and Management, determine the best methodology for design and construction of the fully funded facility;
(e) the Division of Facilities Construction and Management submit the prototype as soon as possible to the Capital Facilities and Administrative Services Appropriation Subcommittee and Executive Offices, Criminal Justice, and Legislature Appropriation Subcommittee for review;
(f) the Division of Facilities Construction and Management issue a Request for Proposal for one of the facilities, with that facility designed and constructed entirely by the winning firm;
(g) the other facility be designed and constructed under the existing Division of Facilities Construction and Management process;
(h) that both facilities follow the program needs and specifications as identified by Division of Facilities Construction and Management and the Division of Youth Corrections renamed in 2003 to the Division of Juvenile Justice Services in the prototype; and
(i) the fully funded facility should be ready for occupancy by September 1, 1995.
(11) It is the intent of the Legislature that the fiscal year 1995 funding for the State Fair Park Master Study be used by the Division of Facilities Construction and Management to develop a master plan for the State Fair Park that:
(a) identifies capital facilities needs, capital improvement needs, building configuration, and other long term needs and uses of the State Fair Park and its buildings; and
(b) establishes priorities for development, estimated costs, and projected timetables.
(12) It is the intent of the Legislature that:
(a) the Division of Facilities Construction and Management, in cooperation with the Division of Parks and Recreation and surrounding counties, develop a master plan and general program for the phased development of Antelope Island;
(b) the master plan:
(i) establish priorities for development;
(ii) include estimated costs and projected time tables; and
(iii) include recommendations for funding methods and the allocation of responsibilities between the parties; and
(c) the results of the effort be reported to the Natural Resources Appropriations Subcommittee and Capital Facilities and Administrative Services Appropriation Subcommittee.
(13) It is the intent of the Legislature to authorize the University of Utah to use:
(a) bond reserves to plan, design, and construct the Kingsbury Hall renovation under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(b) donated and other nonappropriated funds to plan, design, and construct the Biology Research Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(14) It is the intent of the Legislature to authorize Utah State University to use:
(a) federal and other funds to plan, design, and construct the Bee Lab under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(b) donated and other nonappropriated funds to plan, design, and construct an Athletic Facility addition and renovation under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(c) donated and other nonappropriated funds to plan, design, and construct a renovation to the Nutrition and Food Science Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(d) federal and private funds to plan, design, and construct the Millville Research Facility under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(15) It is the intent of the Legislature to authorize Salt Lake Community College to use:
(a) institutional funds to plan, design, and construct a remodel to the Auto Trades Office and Learning Center under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(b) institutional funds to plan, design, and construct the relocation and expansion of a temporary maintenance compound under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(c) institutional funds to plan, design, and construct the Alder Amphitheater under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(16) It is the intent of the Legislature to authorize Southern Utah University to use:
(a) federal funds to plan, design, and construct a Community Services Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(b) donated and other nonappropriated funds to plan, design, and construct a stadium expansion under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(17) It is the intent of the Legislature to authorize the Department of Corrections to use donated funds to plan, design, and construct a Prison Chapel at the Central Utah Correctional Facility in Gunnison under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(18) If the Utah National Guard does not relocate in the Signetics Building, it is the intent of the Legislature to authorize the Guard to use federal funds and funds from Provo City to plan and design an Armory in Provo, Utah, under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(19) It is the intent of the Legislature that the Utah Department of Transportation use $250,000 of the fiscal year 1995 highway appropriation to fund an environmental study in Ogden, Utah of the 2600 North Corridor between Washington Boulevard and I-15.
(20) It is the intent of the Legislature that the Ogden-Weber Applied Technology Center use the monies appropriated for fiscal year 1995 to design the Metal Trades Building and purchase equipment for use in that building that could be used in metal trades or other programs in other Applied Technology Centers.
(21) It is the intent of the Legislature that the Bridgerland Applied Technology Center and the Ogden-Weber Applied Technology Center projects as designed in fiscal year 1995 be considered as the highest priority projects for construction funding in fiscal year 1996.
(22) It is the intent of the Legislature that:
(a) the Division of Facilities Construction and Management complete physical space utilization standards by June 30, 1995, for the use of technology education activities;
(b) these standards are to be developed with and approved by the State Office of Education, the Board of Regents, and the Utah State Building Board;
(c) these physical standards be used as the basis for:
(i) determining utilization of any technology space based on number of stations capable and occupied for any given hour of operation; and
(ii) requests for any new space or remodeling;
(d) the fiscal year 1995 projects at the Bridgerland Applied Technology Center and the Ogden-Weber Applied Technology Center are exempt from this process; and
(e) the design of the Davis Applied Technology Center take into account the utilization formulas established by the Division of Facilities Construction and Management.
(23) It is the intent of the Legislature that Utah Valley State College may use the monies from the bond allocated to the remodel of the Signetics building to relocate its technical education programs at other designated sites or facilities under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(24) It is the intent of the Legislature that the monies provided for the fiscal year 1995 project for the Bridgerland Applied Technology Center be used to design and construct the space associated with Utah State University and design the technology center portion of the project.
(25) It is the intent of the Legislature that the governor provide periodic reports on the expenditure of the funds provided for electronic technology, equipment, and hardware to the Information Technology Commission, the Capital Facilities and Administrative Services Appropriation Subcommittee, and the Legislative Management Committee.
Section 1257. Section 63B-4-102 is amended to read:
63B-4-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $45,300,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
CAPITAL IMPROVEMENTS
Alterations, Repairs, and Improvements $7,200,000
TOTAL IMPROVEMENTS $7,200,000
CAPITAL AND ECONOMIC DEVELOPMENT
PROJECT AMOUNT ESTIMATED
DESCRIPTION FUNDED OPERATIONS AND
MAINTENANCE
COSTS
Corrections - Uinta IVA $11,300,000 $212,800
Utah County Youth Correctional Facility $6,650,000 $245,000
Ogden Weber Applied Technology Center - $5,161,000 $176,000
Metal Trades
Project Reserve Fund $3,500,000 None
Weber State University - Browning Center $3,300,000 None
Remodel
Heber Wells Building Remodel $2,000,000 None
Higher Education Davis County - Land Purchase $1,600,000 None
National Guard -- Provo Armory $1,500,000 $128,000
Department of Natural Resources - Pioneer $900,000 $65,000
Trails Visitor Center
Higher Education Design Projects $800,000 Varies
depending
upon
projects
selected
Salt Lake Community College -
South Valley Planning $300,000 None
Division of Youth Corrections renamed in 2003
to the Division of Juvenile Justice
Services - Logan Land $120,000 None
Purchase
TOTAL CAPITAL AND ECONOMIC DEVELOPMENT $37,131,000
TOTAL IMPROVEMENTS AND
CAPITAL AND ECONOMIC DEVELOPMENT $44,331,000
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1258. Section 63B-4-105 is amended to read:
63B-4-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1259. Section 63B-4-201 is amended to read:
63B-4-201
. Legislative intent statements -- Capital facilities.(1) (a) It is the intent of the Legislature that the University of Utah use institutional and other funds to plan, design, and construct two campus child care centers under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(b) The university shall work with Salt Lake City and the surrounding neighborhood to ensure site compatibility for future recreational development by the city.
(2) It is the intent of the Legislature that the University of Utah use institutional funds to plan, design, and construct:
(a) the Union Parking structure under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(b) the stadium renovation under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(c) the Huntsman Cancer Institute under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(d) the Business Case Method Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(e) the Fine Arts Museum expansion under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(3) It is the intent of the Legislature that Utah State University use institutional funds to plan, design, and construct:
(a) a student health services facility under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(b) a women’s softball field under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director;
(c) an addition to the Nutrition and Food Services Building under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(d) a Human Resource Research Center under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(4) It is the intent of the Legislature that Weber State University use institutional funds to plan, design, and construct:
(a) a track renovation under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(b) the Dee Events Center offices under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(5) It is the intent of the Legislature that Southern Utah University use:
(a) institutional funds to plan, design, and construct an institutional residence under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director; and
(b) project revenues and other funds to plan, design, and construct the Shakespearean Festival support facilities under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(6) It is the intent of the Legislature that Dixie College use institutional funds to plan, design, and construct an institutional residence under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(7) It is the intent of the Legislature that the Division of Forestry, Fire and State Lands use federal and other funds to plan, design, and construct a wetlands enhancement facility under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(8) (a) As provided in Subsection 63A-5-209(2), the funds appropriated to the Project Reserve Fund may only be used for the award of contracts in excess of the construction budget if these funds are required to meet the intent of the project.
(b) It is the intent of the Legislature that:
(i) up to $2,000,000 of the amount may be used to award the construction contract for the Ogden Court Building; and
(ii) the need for any funds remaining as of December 31, 1995 be reviewed by the 1996 Legislature.
(9) (a) It is the intent of the Legislature that the State Building Ownership Authority, under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created to provide up to $539,700 for the purchase and demolition of the Keyston property and construction of parking facilities adjacent to the State Office of Education Building in Salt Lake City, with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(10) (a) It is the intent of the Legislature that the monies appropriated for Phase One of the Remodeling/Life Safety Upgrades of the Browning Fine Arts Center at Weber State University is to include design of full code compliance, life safety, space necessary to maintain required programs, and seismic upgrades.
(b) The design shall identify the full scope and cost of Phase Two of the remodeling for funding consideration in the fiscal year 1997 budget cycle.
(11) It is the intent of the Legislature that:
(a) the fiscal year 1996 appropriation for the Davis County Higher Education land purchase includes up to $250,000 for planning purposes;
(b) the Division of Facilities Construction and Management, the Board of Regents, and the assigned institution of higher education work jointly to ensure the following elements are part of the planning process:
(i) projections of student enrollment and programmatic needs for the next ten years;
(ii) review and make recommendations for better use of existing space, current technologies, public/private partnerships, and other alternatives as a means to reduce the need for new facilities and still accommodate the projected student needs; and
(iii) use of a master plan that includes issues of utilities, access, traffic circulation, drainage, rights of way, future developments, and other infrastructure items considered appropriate; and
(c) every effort is used to minimize expenditures for this part until a definitive decision has been made by BRACC relative to Hill Air Force Base.
(12) (a) It is the intent of the Legislature that the State Building Ownership Authority, under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $7,400,000 for the acquisition and improvement of the Human Services Building located at 120 North 200 West, Salt Lake City, Utah, with associated parking for the Department of Human Services together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(13) (a) It is the intent of the Legislature that the State Building Ownership Authority, under authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created to provide up to $63,218,600 for the construction of a Salt Lake Courts Complex together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) It is the intent of the Legislature that the authority seek out the most cost effective and prudent lease purchase plan available with technical assistance from the state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget.
(c) It is the intent of the Legislature that the Division of Facilities Construction and Management lease land to the State Building Ownership Authority for the construction of a Salt Lake Courts Complex.
(14) It is the intent of the Legislature that:
(a) the Board of Regents use the higher education design project monies to design no more than two higher education projects from among the following projects:
(i) College of Eastern Utah - Student Center;
(ii) Snow College - Noyes Building;
(iii) University of Utah - Gardner Hall;
(iv) Utah State University - Widtsoe Hall; or
(v) Southern Utah University - Physical Education Building; and
(b) the higher education institutions that receive approval from the Board of Regents to design projects under this chapter design those projects under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(15) It is the intent of the Legislature that:
(a) the Board of Regents may authorize the University of Utah to use institutional funds and donated funds to design Gardner Hall; and
(b) if authorized by the Board of Regents, the University of Utah may use institutional funds and donated funds to design Gardner Hall under the supervision of the director of the Division of Facilities Construction and Management unless supervisory authority is delegated by the director.
(16) It is the intent of the Legislature that the Division of Facilities Construction and Management use up to $250,000 of the capital improvement monies to fund the site improvements required at the San Juan campus of the College of Eastern Utah.
Section 1260. Section 63B-4-301 is amended to read:
63B-4-301
. Bonds for golf course at Wasatch Mountain State Park.(1) The State Building Ownership Authority under authority of Title 63, Chapter 9a, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $2,500,000 for a new nine-hole golf course at Wasatch Mountain State Park for the Division of Parks and Recreation, together with additional amounts necessary to:
(a) pay costs of issuance;
(b) pay capitalized interest; and
(c) fund any debt service reserve requirements.
(2) (a) The State Building Ownership Authority shall work cooperatively with the Division of Parks and Recreation to seek out the most cost effective and prudent lease purchase plan available.
(b) The state treasurer, the director of the Division of Finance, and the director of the Governor's Office of Planning and Budget shall provide technical assistance to accomplish the purpose specified in Subsection (2)(a).
Section 1261. Section 63B-5-102 is amended to read:
63B-5-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $32,000,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
CAPITAL IMPROVEMENTS
Alterations, Repairs, and Improvements $7,600,000
TOTAL IMPROVEMENTS $7,600,000
CAPITAL AND ECONOMIC DEVELOPMENT
ESTIMATED
OPERATIONS AND PROJECT AMOUNT MAINTENANCE
DESCRIPTION FUNDED COSTS
Corrections - Gunnison (192 Beds) $13,970,000 $210,000
University of Utah -- Gardner Hall $7,361,000 $203,900
Weber State University Davis Campus $771,000 None
-- Land Purchase
Department of Workforce Services Cedar City $148,000 None
-- Land Purchase
College of Eastern Utah Durrant School $400,000 None
-- Land Purchase
State Hospital - Forensic Design (200 beds) $750,000 $575,000
TOTAL CAPITAL AND ECONOMIC DEVELOPMENT $23,400,000
TOTAL IMPROVEMENTS AND
CAPITAL AND ECONOMIC DEVELOPMENT $31,000,000
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1262. Section 63B-5-105 is amended to read:
63B-5-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1263. Section 63B-6-102 is amended to read:
63B-6-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $57,000,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
CAPITAL AND ECONOMIC DEVELOPMENT
ESTIMATED
OPERATIONS
AMOUNT AND
PROJECT DESCRIPTION FUNDED MAINTENANCE
Youth Corrections - Carbon / Emery (18 beds) $2,298,100 $70,000
State Hospital - 100 bed Forensic Facility $13,800,700 $320,600
Utah State University - Widtsoe Hall $23,986,700 $750,200
Davis Applied Technology Center $6,344,900 $144,000
- Medical/Health Tech Addition
Southern Utah University -- Physical $1,100,000 $456,100
Education Building (Design)
Salt Lake Community College -- High $1,165,000 $718,500
Technology Building, 90th So. Campus (Design)
Department of Natural Resources - Antelope $3,600,000 None
Island Road
Youth Corrections $1,500,000 None
- Region 1 72 Secured Bed Facility
Department of Natural Resources - Dead Horse $1,350,000 $5,700
Point Visitors Center
TOTAL CAPITAL AND ECONOMIC $55,145,400
DEVELOPMENT
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1264. Section 63B-6-105 is amended to read:
63B-6-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1265. Section 63B-6-205 is amended to read:
63B-6-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1266. Section 63B-6-402 is amended to read:
63B-6-402
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $9,000,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the State Tax Commission to provide funds to pay all or part of the cost of the project described in this Subsection (2).
(b) These costs may include:
(i) the cost of acquisition, development, and conversion of computer hardware and software for motor vehicle fee systems and tax collection and accounting systems of the state;
(ii) interest estimated to accrue on these bonds during the period to be covered by that development and conversion, plus a period of six months following the completion of the development and conversion; and
(iii) all related engineering, consulting, and legal fees.
(c) For the State Tax Commission, proceeds shall be provided for the following:
PROJECT AMOUNT
DESCRIPTIONFUNDED
UTAX SYSTEMS $8,500,000
ACQUISITION AND DEVELOPMENT
(3) The commission, by resolution may decline to issue bonds if the project could be construed to violate state law or federal law or regulation.
(4) (a) For this project, for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the project be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) The State Tax Commission may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the State Tax Commission does not bind future Legislatures to fund projects initiated from this authorization.
Section 1267. Section 63B-6-405 is amended to read:
63B-6-405
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1268. Section 63B-6-501 is amended to read:
63B-6-501
. Revenue bond authorizations.(1) (a) It is the intent of the Legislature that:
(i) the State Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit and income and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping a renovation and expansion of the Robert L. Rice Stadium; and
(ii) Olympic funds, University funds, and activity revenues be used as the primary revenue sources for repayment of any obligation created under the authority of this Subsection (1).
(b) The bonds or other evidences of indebtedness authorized may provide up to $50,000,000 together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(2) (a) The State Building Ownership Authority, under authority of Title 63, Chapter 9a, State Building Ownership Authority Act, may issue or execute obligations or enter into or arrange for a lease purchase agreement in which participation interests may be created to provide up to $350,000 for the remodeling and completion of the Wasatch Mountain State Park Clubhouse for the Division of Parks and Recreation, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) The State Building Ownership Authority shall work cooperatively with the Division of Parks and Recreation to seek out the most cost effective and prudent lease purchase plan available.
(c) It is the intent of the Legislature that park revenues be used as the primary revenue sources for repayment of any obligation created under authority of this Subsection (2).
(3) It is the intent of the Legislature that:
(a) the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $6,000,000 for the construction, or acquisition, or both, of liquor stores, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service requirements; and
(b) liquor control funds be used as the primary revenue source for the repayment of any obligation created under authority of this Subsection (3).
Section 1269. Section 63B-7-102 is amended to read:
63B-7-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $33,600,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
PROJECT AMOUNT ESTIMATED
DESCRIPTION FUNDED OPERATIONS AND MAINTENANCE
Southern Utah University $4,600,000 $0
Land Purchase
Salt Lake Community College $3,980,700 $507,900
High Tech Center -
Jordan Campus
Children's Special Health Care $755,400 $247,600
Needs Clinic
Youth Corrections - 2 @ 32 beds $419,500 $276,000
(Vernal / Logan)
Corrections - Gunnison 288 bed $8,425,600 $0
and Lagoon Expansion
University of Utah - $445,500 $101,700
Cowles Building
Utah Valley State College - $1,166,300 $391,000
Technical Building
Sevier Valley Applied Technology $3,014,300 $443,300
Center - Shop Expansion
Division of Parks and Recreation $1,000,000 $22,700
Statewide Restrooms
Murray Highway Patrol Office $2,300,000 $81,000
Department of Workforce $2,780,000 $128,100
Services - Davis County
Employment Center
State Hospital - Rampton II $1,600,000 $462,000
Courts - 4th District $1,368,000 $0
Land - Provo
Dixie College - Land $1,000,000 $0
TOTAL CAPITAL AND $32,855,300
ECONOMIC DEVELOPMENT
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1270. Section 63B-7-105 is amended to read:
63B-7-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1271. Section 63B-7-205 is amended to read:
63B-7-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1272. Section 63B-7-402 is amended to read:
63B-7-402
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $16,500,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the State Tax Commission to provide funds to pay all or part of the cost of the project described in this Subsection (2).
(b) These costs may include:
(i) the cost of acquisition, development, and conversion of computer hardware and software for motor vehicle fee systems and tax collection and accounting systems of the state;
(ii) interest estimated to accrue on these bonds during the period to be covered by that development and conversion, plus a period of six months following the completion of the development and conversion; and
(iii) all related engineering, consulting, and legal fees.
(c) For the State Tax Commission, proceeds shall be provided for the following:
PROJECT AMOUNT
DESCRIPTION FUNDED
UTAX SYSTEMS $15,650,000
ACQUISITION AND DEVELOPMENT
(3) The commission, by resolution may decline to issue bonds if the project could be construed to violate state law or federal law or regulation.
(4) (a) For this project, for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the project be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) The State Tax Commission may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the State Tax Commission does not bind future Legislatures to fund projects initiated from this authorization.
Section 1273. Section 63B-7-405 is amended to read:
63B-7-405
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1274. Section 63B-7-501 is amended to read:
63B-7-501
. Revenue bond authorizations.(1) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $1,568,600 for the construction of a Utah Correctional Industries Facility at the Central Utah Correctional Facility at Gunnison, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service requirements.
(b) The State Building Ownership Authority shall work cooperatively with the Department of Corrections to seek out the most cost effective and prudent lease purchase plan available.
(c) It is the intent of the Legislature that program revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (1).
(2) It is the intent of the Legislature that:
(a) the State Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit, income, and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping student housing;
(b) University funds and housing rental revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (2); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (2) may provide up to $86,000,000 together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(3) It is the intent of the Legislature that:
(a) the State Board of Regents on behalf of the University of Utah issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit, income, and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping a Health Sciences Parking Structure;
(b) University funds and parking revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (3); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (3) may provide up to $12,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(4) It is the intent of the Legislature that:
(a) the State Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit and income and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping a Southwest Campus Parking Structure;
(b) University funds and parking revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (4); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (4) may provide up to $7,200,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(5) It is the intent of the Legislature that:
(a) the State Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit and income and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping an expansion of the Eccles Broadcast Center;
(b) University funds and service revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (5); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (5) may provide up to $5,100,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(6) It is the intent of the Legislature that:
(a) the State Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit and income and revenues of the University of Utah, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, equipping, and remodeling facilities for perinatal services, adult critical care services, clinical training and support, and upgrade of the University Hospital Rehabilitation Unit, and for purchase of the University Neuropsychiatric Institute and Summit Health Center in Park West;
(b) University Hospital revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (6); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (6) may provide up to $23,300,000 together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(7) It is the intent of the Legislature that:
(a) the State Board of Regents, on behalf of Weber State University, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Weber State University to borrow money on the credit and income and revenues of Weber State University, other than appropriations of the Legislature, to finance the cost of constructing, furnishing, and equipping student housing;
(b) University funds and housing rental revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (7); and
(c) the bonds or other evidences of indebtedness authorized by this Subsection (7) may provide up to $19,000,000 together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(8) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $1,100,000 for the construction of surplus property facilities for the Division of Fleet Operations, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) The State Building Ownership Authority shall work cooperatively with the Department of Administrative Services to seek out the most cost effective and prudent lease purchase plan available.
(c) It is the intent of the Legislature that Internal Service Fund revenues be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (8).
(9) (a) Contingent upon the state of Utah receiving a perfected security interest in accordance with Senate Joint Resolution 14, 1998 Annual General Session, the State Building Ownership Authority, under authority of Title 63, Chapter 9a, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $25,000,000 for the cost of constructing, furnishing, and equipping housing facilities at the University of Utah, together with additional amounts necessary to:
(i) pay costs of issuance;
(ii) pay capitalized interest; and
(iii) fund any debt service reserve requirements.
(b) The State Building Ownership Authority and the University of Utah may enter into real estate arrangements and security arrangements that are:
(i) necessary to accomplish the purposes of this Subsection (9); and
(ii) not inconsistent with the requirements of Senate Joint Resolution 14, 1998 Annual General Session.
(10) In order to achieve a debt service savings, it is the intent of the Legislature that the State Building Ownership Authority, under authority of Title 63, Chapter 9a, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide sufficient funding to exercise the state's option to purchase the Youth Corrections Facility in Salt Lake County currently financed by Salt Lake County.
Section 1275. Section 63B-7-503 is amended to read:
63B-7-503
. Highway revenue bond authorization.It is the intent of the Legislature that:
(1) the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations to provide up to $10,000,000 for the acquisition of real property or any interests in real property for state, county, or municipal transportation corridors as provided in Section 72-2-117; and
(2) revenues of the Transportation Corridor Preservation Revolving Loan Fund be used as the primary revenue source for the repayment of any obligation created under authority of this section.
Section 1276. Section 63B-8-102 is amended to read:
63B-8-102
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $48,500,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
PROJECT AMOUNT ESTIMATED
DESCRIPTION FUNDED OPERATIONS AND
MAINTENANCE
Southern Utah University - $2,493,200 $447,744
Physical Education Building
Utah Valley State College - $29,000,000 $721,875
Information Sciences Building
University of Utah - $7,268,500 $140,217
Cowles Building Renovation
Vernal District Court $4,539,500 $149,989
Salt Lake Community College - $4,200,000 $281,784
Applied Education Center
TOTAL CAPITAL AND $47,501,200
ECONOMIC DEVELOPMENT
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1277. Section 63B-8-105 is amended to read:
63B-8-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1278. Section 63B-8-205 is amended to read:
63B-8-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1279. Section 63B-8-402 is amended to read:
63B-8-402
. Maximum amount -- Projects authorized.(1) The total amount of bonds issued under this part may not exceed $7,400,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the project listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
PROJECT AMOUNT ESTIMATED
DESCRIPTION FUNDED OPERATIONS AND
MAINTENANCE
State Hospital - Rampton II $7,000,000 $462,000
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1280. Section 63B-8-405 is amended to read:
63B-8-405
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may by resolution adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations are made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1281. Section 63B-8-501 is amended to read:
63B-8-501
. Revenue bond authorizations.(1) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $2,510,000 for the acquisition of the Department of Human Services Office in Brigham City, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that amounts representing existing budgets for rent for the Department of Human Services be used as the primary revenue source for the Department of Human Services to pay the state for repayment of any obligation created under authority of this Subsection (1).
(2) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $6,518,000 for the construction of an office building to house the Department of Corrections and the Board of Pardons and Parole Administration, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that amounts representing existing budgets for rent for the Department of Corrections and the Board of Pardons and Parole Administration be used as the primary revenue source for the Department of Corrections and the Board of Pardons and Parole Administration to pay the state for repayment of any obligation created under authority of this Subsection (2).
Section 1282. Section 63B-9-102 is amended to read:
63B-9-102
. State Building Ownership Authority revenue bond authorizations.(1) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $10,500,000 for the construction of a multipurpose building for the state fair park, together with additional amounts necessary to:
(a) pay costs of issuance;
(b) pay capitalized interest; and
(c) fund any debt service reserve requirements.
(2) The State Building Ownership Authority shall work cooperatively with the board of directors of the Utah State Fair Corporation to seek out the most effective and prudent lease purchase plan available.
Section 1283. Section 63B-9-103 is amended to read:
63B-9-103
. Other capital facility authorizations and intent language.(1) It is the intent of the Legislature that:
(a) Utah State University use institutional funds to plan, design, and construct a renovation and expansion of the Edith Bowen School under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may request state funds for operations and maintenance to the extent that the university is able to demonstrate to the Board of Regents that the facility meets approved academic and training purposes under Board of Regents policy R710.
(2) It is the intent of the Legislature that:
(a) the University of Utah use institutional funds to plan, design, and construct a College of Science Math Center under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may request state funds for operations and maintenance to the extent that the university is able to demonstrate to the Board of Regents that the facility meets approved academic and training purposes under Board of Regents policy R710.
(3) It is the intent of the Legislature that:
(a) the University of Utah use institutional funds to plan, design, and construct a Burbidge Athletics and Academics Building under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may not request state funds for operations and maintenance.
(4) It is the intent of the Legislature that:
(a) the University of Utah use institutional funds to plan, design, and construct an expansion to the bookstore under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may not request state funds for operations and maintenance.
(5) It is the intent of the Legislature that:
(a) the University of Utah use institutional funds to plan, design, and construct a Health Sciences/Basic Sciences Building under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may request state funds for operations and maintenance to the extent that the university is able to demonstrate to the Board of Regents that the facility meets approved academic and training purposes under Board of Regents policy R710.
(6) It is the intent of the Legislature that:
(a) Weber State University use institutional funds to plan, design, and construct an expansion to the stadium under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may not request state funds for operations and maintenance.
(7) It is the intent of the Legislature that:
(a) Utah Valley State College use institutional funds to plan, design, and construct a baseball stadium under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the college may not request state funds for operations and maintenance.
(8) It is the intent of the Legislature that:
(a) Southern Utah University use institutional funds to plan, design, and construct a weight training room under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated;
(b) no state funds be used for any portion of this project; and
(c) the university may not request state funds for operations and maintenance.
(9) It is the intent of the Legislature that:
(a) Snow College may lease land at the Snow College Richfield campus to a private developer for the construction and operation of student housing;
(b) the oversight and inspection of the construction comply with Section 63A-5-206;
(c) no state funds be used for any portion of this project; and
(d) the college may not request state funds for operations and maintenance.
(10) It is the intent of the Legislature that:
(a) Salt Lake Community College may lease land at the Jordan campus to Jordan School District for the construction and operation of an Applied Technology Education Center;
(b) the oversight and inspection of the construction comply with Section 63A-5-206;
(c) no state funds be used for any portion of this project; and
(d) the college may not request state funds for operations and maintenance.
(11) It is the intent of the Legislature that:
(a) the Department of Transportation exchange its maintenance station at Kimball Junction for property located near Highway 40 in Summit County; and
(b) the Department of Transportation use federal funds, rent paid by the Salt Lake Organizing Committee for the use of the maintenance station, and any net proceeds resulting from the exchange of property to construct a replacement facility under the direction of the director of the Division of Facilities Construction and Management unless supervisory authority has been delegated.
(12) It is the intent of the Legislature that:
(a) the Department of Transportation sell surplus property in Utah County;
(b) the Department of Transportation use funds from that sale to remodel existing space and add an addition to the Region 3 Complex; and
(c) the project cost not exceed the funds received through sale of property.
(13) It is the intent of the Legislature that the Department of Workforce Services use proceeds from property sales to purchase additional property adjacent to its state-owned facility in Logan.
(14) (a) It is the intent of the Legislature that, because only partial funding is provided for the Heat Plant/Infrastructure Project at Utah State University, the balance necessary to complete this project be addressed by future Legislatures, either through appropriations or through the issuance of bonds.
(b) (i) In compliance with Section 63A-5-207, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(ii) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(c) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund the Heat Plant/Infrastructure Project at Utah State University.
Section 1284. Section 63B-9-205 is amended to read:
63B-9-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1285. Section 63B-10-105 is amended to read:
63B-10-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148(f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1286. Section 63B-10-301 is amended to read:
63B-10-301
. Revenue bond authorizations.(1) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $8,281,000 for the construction of an expansion of the Department of Alcoholic Beverage Control warehouse together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that enhanced revenues of the Department of Alcoholic Beverage Control be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (1).
(2) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $957,100 for the acquisition of a site and construction of a store in the western part of Salt Lake County for the Department of Alcoholic Beverage Control together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that enhanced revenues of the Department of Alcoholic Beverage Control be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (2).
(3) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $1,497,700 for the acquisition of a site and construction of a store in the southern part of Salt Lake County for the Department of Alcoholic Beverage Control together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that enhanced revenues of the Department of Alcoholic Beverage Control be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (3).
(4) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $100,000,000 for the acquisition and construction of a cancer clinical research hospital facility adjacent to the University of Utah Medical Center, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) The State Building Ownership Authority shall work cooperatively with the Division of Facilities Construction and Management and the University of Utah to seek out the most cost effective and prudent lease purchase plan available.
(c) It is the intent of the Legislature that the University of Utah lease land to the State Building Ownership Authority for the construction of a cancer clinical research hospital facility adjacent to the University of Utah Medical Center.
(d) The anticipated revenue sources for repayment of any obligation created under authority of this section are:
(i) the institutional funds of the University of Utah, including the University's annual distribution of tobacco settlement funds from the state; and
(ii) donations from the Huntsman Cancer Foundation and other donors.
(e) By September 1 of each year of the existence of this revenue bond, the University of Utah shall give an annual report regarding the status of the bond and the bond payments to the Legislative Fiscal Analyst. This report shall be reviewed by the Higher Education Appropriations Subcommittee and the Capital Facilities Appropriation Subcommittee.
(5) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit, revenues, and reserves of the University of Utah, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping an expansion of the University Hospital;
(b) University Hospital revenues be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $25,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(6) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of Salt Lake Community College, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Salt Lake Community College to borrow money on the credit, revenues, and reserves of Salt Lake Community College, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping the remodel of the cafeteria and expansion of the Student Center;
(b) student fees be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $6,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(7) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of Dixie College, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Dixie College to borrow money on the credit, revenues, and reserves of Dixie College, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping an expansion of the Gardner Student Center;
(b) student fees be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $1,500,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
Section 1287. Section 63B-10-302 is amended to read:
63B-10-302
. Other revenue bond authorizations.(1) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations to provide up to $12,000,000 for the construction of a 36-hole golf course at Soldier Hollow in the Wasatch Mountain State Park, including necessary facilities such as a clubhouse, restroom facilities, and maintenance facilities, together with additional amounts necessary to:
(a) pay costs of issuance;
(b) pay capitalized interest; and
(c) fund any debt service reserve requirements.
(2) The State Building Ownership Authority shall work cooperatively with the Division of Parks and Recreation in the design and construction of the golf course at Soldier Hollow.
Section 1288. Section 63B-11-105 is amended to read:
63B-11-105
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1289. Section 63B-11-202 is amended to read:
63B-11-202
. Maximum amount -- Projects authorized.(1) (a) The total amount of bonds issued under this part may not exceed $21,250,000.
(b) When Utah State University certifies to the commission that the university has obtained reliable commitments, convertible to cash, of $5,000,000 or more in nonstate funds to construct an addition to the new engineering building and demolish the existing engineering classroom building, the commission may issue and sell general obligation bonds in a total amount not to exceed $6,100,000.
(c) When the University of Utah certifies to the commission that the university has obtained reliable commitments, convertible to cash, of $13,000,000 or more in nonstate funds to construct a new engineering building, the commission may issue and sell general obligation bonds in a total amount not to exceed $15,150,000.
(2) (a) Proceeds from the issuance of bonds shall be provided to the division to provide funds to pay all or part of the cost of acquiring and constructing the projects listed in this Subsection (2).
(b) These costs may include the cost of acquiring land, interests in land, easements and rights-of-way, improving sites, and acquiring, constructing, equipping, and furnishing facilities and all structures, roads, parking facilities, utilities, and improvements necessary, incidental, or convenient to the facilities, interest estimated to accrue on these bonds during the period to be covered by construction of the projects plus a period of six months after the end of the construction period, and all related engineering, architectural, and legal fees.
(c) For the division, proceeds shall be provided for the following:
PROJECT AMOUNT ESTIMATED OPERATING
DESCRIPTION FUNDED AND MAINTENANCE COSTS
1. Utah State $5,943,500 $425,000
University
Engineering Building
Renovation
2. University of $15,000,000 $489,000
Utah New
Engineering Building
COSTS OF ISSUANCE $306,500
TOTAL CAPITAL AND ECONOMIC DEVELOPMENT $21,250,000
(d) For purposes of this section, operations and maintenance costs:
(i) are estimates only;
(ii) may include any operations and maintenance costs already funded in existing agency budgets; and
(iii) are not commitments by this Legislature or future Legislatures to fund those operations and maintenance costs.
(3) (a) The amounts funded as listed in Subsection (2) are estimates only and do not constitute a limitation on the amount that may be expended for any project.
(b) The board may revise these estimates and redistribute the amount estimated for a project among the projects authorized.
(c) The commission, by resolution and in consultation with the board, may delete one or more projects from this list if the inclusion of that project or those projects in the list could be construed to violate state law or federal law or regulation.
(4) (a) The division may enter into agreements related to these projects before the receipt of proceeds of bonds issued under this chapter.
(b) The division shall make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund.
(c) The division shall reimburse the Capital Projects Fund upon receipt of the proceeds of bonds issued under this chapter.
(d) The commission may, by resolution, make any statement of intent relating to that reimbursement that is necessary or desirable to comply with federal tax law.
(5) (a) For those projects for which only partial funding is provided in Subsection (2), it is the intent of the Legislature that the balance necessary to complete the projects be addressed by future Legislatures, either through appropriations or through the issuance or sale of bonds.
(b) For those phased projects, the division may enter into contracts for amounts not to exceed the anticipated full project funding but may not allow work to be performed on those contracts in excess of the funding already authorized by the Legislature.
(c) Those contracts shall contain a provision for termination of the contract for the convenience of the state as required by Section [63-56-601] 63G-6-601.
(d) It is also the intent of the Legislature that this authorization to the division does not bind future Legislatures to fund projects initiated from this authorization.
Section 1290. Section 63B-11-205 is amended to read:
63B-11-205
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302 or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1291. Section 63B-11-305 is amended to read:
63B-11-305
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148(f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1292. Section 63B-11-505 is amended to read:
63B-11-505
. Terms and conditions of sale -- Plan of financing -- Signatures -- Replacement -- Registration -- Federal rebate.(1) In the issuance of bonds, the commission may determine by resolution:
(a) the manner of sale, including public or private sale;
(b) the terms and conditions of sale, including price, whether at, below, or above face value;
(c) denominations;
(d) form;
(e) manner of execution;
(f) manner of authentication;
(g) place and medium of purchase;
(h) redemption terms; and
(i) other provisions and details it considers appropriate.
(2) The commission may, by resolution, adopt a plan of financing, which may include terms and conditions of arrangements entered into by the commission on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the bonds, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the commission.
(3) (a) Any signature of a public official authorized by resolution of the commission to sign the bonds may be a facsimile signature of that official imprinted, engraved, stamped, or otherwise placed on the bonds.
(b) If all signatures of public officials on the bonds are facsimile signatures, provision shall be made for a manual authenticating signature on the bonds by or on behalf of a designated authentication agent.
(c) If an official ceases to hold office before delivery of the bonds signed by that official, the signature or facsimile signature of the official is nevertheless valid for all purposes.
(d) A facsimile of the state seal may be imprinted, engraved, stamped, or otherwise placed on the bonds.
(4) (a) The commission may enact resolutions providing for the replacement of lost, destroyed, or mutilated bonds, or for the exchange of bonds after issuance for bonds of smaller or larger denominations.
(b) Bonds in changed denominations shall:
(i) be exchanged for the original bonds in like aggregate principal amounts and in a manner that prevents the duplication of interest; and
(ii) bear interest at the same rate, mature on the same date, and be as nearly as practicable in the form of the original bonds.
(5) (a) Bonds may be registered as to both principal and interest or may be in a book entry form under which the right to principal and interest may be transferred only through a book entry.
(b) The commission may provide for the services and payment for the services of one or more financial institutions or other entities or persons, or nominees, within or outside the state, for the authentication, registration, transfer, including record, bookkeeping, or book entry functions, exchange, and payment of the bonds.
(c) The records of ownership, registration, transfer, and exchange of the bonds, and of persons to whom payment with respect to the obligations is made, are private records as provided in Section [63-2-302] 63G-2-302, or protected records as provided in Section [63-2-304] 63G-2-305.
(d) The bonds and any evidences of participation interest in the bonds may be issued, executed, authenticated, registered, transferred, exchanged, and otherwise made to comply with Title 15, Chapter 7, Registered Public Obligations Act, or any other act of the Legislature relating to the registration of obligations enacted to meet the requirements of Section 149 of the Internal Revenue Code of 1986, as amended, or any successor to it, and applicable regulations.
(6) The commission may:
(a) by resolution, provide for payment to the United States of whatever amounts are necessary to comply with Section 148 (f) of the Internal Revenue Code of 1986, as amended; and
(b) enter into agreements with financial and other institutions and attorneys to provide for:
(i) the calculation, holding, and payment of those amounts; and
(ii) payment from any legally available source of fees, charges, or other amounts coming due under any agreements entered into by the commission.
Section 1293. Section 63B-11-701 is amended to read:
63B-11-701
. Revenue bond authorizations.(1) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of the University of Utah, issue, sell, and deliver revenue bonds or other evidences of indebtedness of the University of Utah to borrow money on the credit, revenues, and reserves of the University of Utah, other than appropriations of the Legislature, to refinance the cost of acquiring, constructing, furnishing, and equipping the East-Campus Central Plant and related energy improvements;
(b) savings in heating and cooling costs be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $33,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(2) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of Utah State University, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Utah State University to borrow money on the credit, revenues, and reserves of Utah State University, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping research and office facilities at its Research Park;
(b) revenues from research activities, the Utah State University Research Foundation, and other institutional funds be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $19,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(3) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of Southern Utah University, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Southern Utah University to borrow money on the credit, revenues, and reserves of Southern Utah University, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping a Student Living and Learning Facility;
(b) student housing and other auxiliary revenues and student building fees be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $9,000,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(4) It is the intent of the Legislature that:
(a) the Board of Regents, on behalf of Snow College, issue, sell, and deliver revenue bonds or other evidences of indebtedness of Snow College to borrow money on the credit, revenues, and reserves of Snow College, other than appropriations of the Legislature, to finance the cost of acquiring, constructing, furnishing, and equipping a Multi-Event Center in Richfield;
(b) usage fees and other operating revenues be used as the primary revenue source for repayment of any obligation created under authority of this section; and
(c) the bonds or other evidences of indebtedness authorized by this section may provide up to $2,500,000, together with other amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(5) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $1,836,000 for the acquisition of a site and construction of a store in Tooele for the Department of Alcoholic Beverage Control, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
Section 1294. Section 63B-12-201 is amended to read:
63B-12-201
. Revenue bond authorizations.(1) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, may issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $14,099,000 for the construction of a state courthouse in the City of West Jordan together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is the intent of the Legislature that, before entering into the obligations authorized by this Subsection (1), the State Building Ownership Authority shall confirm that the projected amount of fees in the Courts Complex Fund, Fund 106, along with other funds in existing budgets of the courts are adequate to cover the repayment of any obligation created under authority of this Subsection (1).
(c) It is further the intent of the Legislature that when Sandy City has entered into a binding agreement with the Division of Facilities Construction and Management to purchase the existing Sandy Courthouse at an amount that will provide sale proceeds, net of any rent that may be charged to the courts for occupying the Sandy Courthouse during construction of the new courthouse, of not less than $4,500,000, those proceeds may be used to include replacement space for the district court in the new courthouse.
(2) (a) It is the intent of the Legislature that the State Building Ownership Authority, under the authority of [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, issue or execute obligations, or enter into or arrange for a lease purchase agreement in which participation interests may be created, to provide up to $1,242,000 for the construction of a driver license office in West Valley City, together with additional amounts necessary to pay costs of issuance, pay capitalized interest, and fund any debt service reserve requirements.
(b) It is further the intent of the Legislature that fees for driver licenses be used as the primary revenue source for repayment of any obligation created under authority of this Subsection (2).
Section 1295. Section 63C-4-101 is amended to read:
63C-4-101
. Creation of Constitutional Defense Council -- Membership -- Vacancies -- Reports -- Per diem and funding.(1) There is created the Constitutional Defense Council.
(2) (a) The defense council shall consist of the following 11 members:
(i) the governor, who shall serve as chair of the council;
(ii) the president of the Senate or his designee;
(iii) the speaker of the House or his designee;
(iv) the minority leader of the Senate or his designee;
(v) the minority leader of the House or his designee;
(vi) the attorney general or his designee;
(vii) one citizen member appointed by the governor; and
(viii) four elected county commissioners, county council members, or county executives from different counties who are selected by the Utah Association of Counties.
(b) The council shall select a vice-chair from its members.
(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term in the same manner as the original appointment.
(4) (a) (i) Except as provided in Subsection (4)(a)(ii), the defense council shall meet at least monthly or more frequently as needed.
(ii) The defense council need not meet monthly if the chair, after polling the members, determines that a majority of the members do not wish to meet.
(b) The governor or any six members of the council may call a meeting of the council.
(c) Before calling a meeting, the governor or council members shall solicit items for the agenda from other members of the council.
(d) (i) The Constitutional Defense Council shall require that any entity that receives monies from the Constitutional Defense Restricted Account provide financial reports and litigation reports to the Council.
(ii) Nothing in this Subsection (4)(d) prohibits the council from closing a meeting under Title 52, Chapter 4, Open and Public Meetings Act, or prohibits the council from complying with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(e) A majority of the membership on the defense council is required for a quorum to conduct council business. A majority vote of the quorum is required for any action taken by the defense council.
(5) The Office of the Attorney General shall provide staff to the defense council.
(6) (a) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(b) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
(7) (a) The council shall be funded from the Constitutional Defense Restricted Account created in Section 63C-4-103.
(b) Monies appropriated for or received by the council may be expended by the governor in consultation with the council.
Section 1296. Section 63C-4-102 is amended to read:
63C-4-102
. Duties.(1) The Constitutional Defense Council is a council to assist the governor and the Legislature on the following types of issues:
(a) the constitutionality of unfunded federal mandates;
(b) when making recommendations to challenge the federal mandates and regulations described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those federal mandates or regulations;
(c) legal and policy issues surrounding state and local government rights under R.S. 2477;
(d) legal issues relating to the rights of the School and Institutional Trust Lands Administration and its beneficiaries; and
(e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
(i) federal court rulings that hinder the management of the state's prison system and place undue financial hardship on the state's taxpayers;
(ii) federal laws or regulations that reduce or negate water rights or the rights of owners of private property, or the rights and interest of state and local governments, including sovereignty interests and the power to provide for the health, safety, and welfare, and promote the prosperity of their inhabitants;
(iii) conflicting federal regulations or policies in land management on federal land;
(iv) federal intervention that would damage the state's mining, timber, and ranching industries;
(v) the authority of the Environmental Protection Agency and Congress to mandate local air quality standards and penalties; and
(vi) other issues that are relevant to Subsections (1)(a) through (e).
(2) The council chair may require the attorney general or a designee to provide testimony on potential legal actions that would enhance the state's sovereignty or authority on issues affecting Utah and the well-being of its citizens.
(3) The council chair may direct the attorney general to initiate and prosecute any action that the council determines will further its purposes.
(4) (a) Subject to the provisions of this section, the council may select and employ attorneys to implement the purposes and duties of the council.
(b) The council chair may, in consultation with the council, direct any council attorney in any manner considered appropriate by the attorney general to best serve the purposes of the council.
(c) The attorney general shall negotiate a contract for services with any attorney selected and approved for employment under this section.
(5) The council chair shall, only with the concurrence of the council, review and approve all claims for payments for legal services that are submitted to the council.
(6) Within five business days' notice, the council chair may, with the concurrence of the council, order the attorney general or an attorney employed by the council to cease work to be charged to the fund.
(7) (a) At least 20 calendar days before the state submits comments on the draft environmental impact statement or environmental assessment for a proposed land management plan of any federal land management agency, the governor shall make those documents available to:
(i) members of the council; and
(ii) any county executive, county council member, or county commissioner of a county that is covered by the management plan and that has established formal cooperating agency status with the relevant federal land management agency regarding the proposed plan.
(b) (i) Council members or local government officials receiving the documents may make recommendations to the governor or the governor's designee concerning changes to the documents before they are submitted to the federal land management agency.
(ii) Council members or local government officials shall submit recommendations to the governor or the governor's designee no later than ten calendar days after receiving the documents under Subsection (7)(a).
(c) Documents transmitted or received under this Subsection (7) are drafts and are protected records pursuant to Subsection [63-2-304] 63G-2-305(22).
(8) The council shall submit a report on December 1 of each year to the speaker of the House of Representatives and the president of the Senate that summarizes the council's activities.
Section 1297. Section 63C-4-103 is amended to read:
63C-4-103
. Creation of Constitutional Defense Restricted Account -- Sources of funds -- Uses of funds -- Reports.(1) There is created a restricted account within the General Fund known as the Constitutional Defense Restricted Account.
(2) The account consists of monies from the following revenue sources:
(a) monies deposited to the account as required by Section 53C-3-203;
(b) voluntary contributions;
(c) monies received by the Constitutional Defense Council from other state agencies; and
(d) appropriations made by the Legislature.
(3) Funds in the account shall be nonlapsing.
(4) The account balance may not exceed $2,000,000.
(5) The Legislature may annually appropriate monies from the Constitutional Defense Restricted Account to one or more of the following:
(a) the Constitutional Defense Council to carry out its duties in Section 63C-4-102;
(b) the Public Lands Policy Coordinating Office to carry out its duties in Section [63-38d-603] 63J-4-603;
(c) the Public Lands Policy Coordinating Council to carry out its duties in Section [63-38d-605] 63J-4-605;
(d) the Office of the Governor, to be used only for the purpose of asserting, defending, or litigating state and local government rights under R.S. 2477, in accordance with a plan developed and approved as provided in Section 63C-4-104;
(e) a county or association of counties to assist counties, consistent with the purposes of the council, in pursuing issues affecting the counties; or
(f) the Office of the Attorney General, to be used only for public lands counsel and assistance and litigation to the state or local governments including asserting, defending, or litigating state and local government rights under R.S. 2477 in accordance with a plan developed and approved as provided in Section 63C-4-104.
(6) (a) The Constitutional Defense Council shall require that any entity that receives monies from the Constitutional Defense Restricted Account provide financial reports and litigation reports to the Council.
(b) Nothing in this Subsection (6) prohibits the council from closing a meeting under Title 52, Chapter 4, Open and Public Meetings Act, or prohibits the council from complying with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 1298. Section 63C-7-210 is amended to read:
63C-7-210
. Exemption from certain acts.(1) The Utah Communications Agency Network is exempt from:
(a) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(b) Title 63A, Utah Administrative Services Code, except as provided in Section 63A-4-205.5;
(c) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(d) [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act; and
(e) Title 67, Chapter 19, Utah State Personnel Management Act.
(2) The board shall adopt budgetary procedures, accounting, procurement, and personnel policies substantially similar to those from which they have been exempted in Subsection (1).
Section 1299. Section 63C-8-105 is amended to read:
63C-8-105
. Powers of council.The council may:
(1) conduct surveys, with the assistance of the Division of Occupational and Professional Licensing within the Department of Commerce, to assess and meet changing market and education needs;
(2) notwithstanding the provisions of Subsection 35A-4-312(3), receive information obtained by the Division of Workforce Information and Payment Services under the provisions of Section 35A-4-312 for purposes consistent with the council's duties as identified under Section 63C-8-104, including identifying changes in the medical and health care workforce numbers, types, and geographic distribution;
(3) appoint advisory committees of broad representation on interdisciplinary clinical education, workforce mix planning and projections, funding mechanisms, and other topics as is necessary;
(4) use federal monies for necessary administrative expenses to carry out its duties and powers as permitted by federal law;
(5) distribute program monies in accordance with Subsection 63C-8-104(7); and
(6) as is necessary to carry out its duties under Section 63C-8-104:
(a) hire employees; and
(b) adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 1300. Section 63C-8-106 is amended to read:
63C-8-106
. Rural residency training program.(1) For purposes of this section:
(a) "Physician" means:
(i) a person licensed to practice medicine under Title 58 Chapter 67, Utah Medical Practice Act or Title 58, Chapter 68, Utah Osteopathic Medical Practice Act; and
(ii) a person licensed to practice dentistry under Title 58, Chapter 69, Dentist and Dental Hygienist Practice Act.
(b) "Rural residency training program" means an accredited clinical training program as defined in Section 63C-8-101 which places a physician into a rural county for a part or all of the physician's clinical training.
(2) (a) Subject to appropriations from the Legislature, the council shall establish a pilot program to place physicians into rural residency training programs.
(b) The pilot program shall begin July 1, 2005 and sunset July 1, 2015, in accordance with Section [63-55-263] 63I-1-263.
(3) (a) The council shall report to the Legislature's Health and Human Services Interim Committee concerning the implementation of the pilot program and the success of the program in increasing the retention or recruitment of physicians in rural counties in the state.
(b) The report required by this Subsection (3) shall be made by November 30 of each year.
Section 1301. Section 63C-9-301 is amended to read:
63C-9-301
. Board powers -- Subcommittees.(1) The board shall:
(a) except as provided in Subsection (2), exercise complete jurisdiction and stewardship over capitol hill facilities, capitol hill grounds, and the capitol hill complex;
(b) preserve, maintain, and restore the capitol hill complex, capitol hill facilities, capitol hill grounds, and their contents;
(c) before October 1 of each year, review and approve the executive director's annual budget request for submittal to the governor and Legislature;
(d) by October 1 of each year, prepare and submit a recommended budget request for the upcoming fiscal year for the capitol hill complex to:
(i) the governor, through the Governor's Office of Planning and Budget; and
(ii) the Legislature's appropriations subcommittee responsible for capitol hill facilities, through the Office of Legislative Fiscal Analyst;
(e) review and approve the executive director's:
(i) annual work plan;
(ii) long-range master plan for the capitol hill complex, capitol hill facilities, and capitol hill grounds; and
(iii) furnishings plan for placement and care of objects under the care of the board;
(f) approve all changes to the buildings and their grounds, including:
(i) restoration, remodeling, and rehabilitation projects;
(ii) usual maintenance program; and
(iii) any transfers or loans of objects under the board's care;
(g) define and identify all significant aspects of the capitol hill complex, capitol hill facilities, and capitol hill grounds, after consultation with the:
(i) Division of Facilities Construction and Management;
(ii) State Library Division;
(iii) Division of Archives and Records Service;
(iv) Division of State History;
(v) Office of Museum Services; and
(vi) Arts Council;
(h) inventory, define, and identify all significant contents of the buildings and all state-owned items of historical significance that were at one time in the buildings, after consultation with the:
(i) Division of Facilities Construction and Management;
(ii) State Library Division;
(iii) Division of Archives and Records Service;
(iv) Division of State History;
(v) Office of Museum Services; and
(vi) Arts Council;
(i) maintain archives relating to the construction and development of the buildings, the contents of the buildings and their grounds, including documents such as plans, specifications, photographs, purchase orders, and other related documents, the original copies of which shall be maintained by the Division of Archives and Records Service;
(j) comply with federal and state laws related to program and facility accessibility; and
(k) establish procedures for receiving, hearing, and deciding complaints or other issues raised about the capitol hill complex, capitol hill facilities, and capitol hill grounds, or their use.
(2) Notwithstanding Subsection (1)(a), the supervision and control of the legislative area, as defined in Section 36-5-1, is reserved to the Legislature.
(3) (a) The board shall make rules to govern, administer, and regulate the capitol hill complex, capitol hill facilities, and capitol hill grounds by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) A person who violates a rule adopted by the board under the authority of this Subsection (3) is subject to a civil penalty not to exceed $2,500 for each violation, plus the amount of any actual damages, expenses, and costs related to the violation of the rule that are incurred by the state.
(c) The board may take any other legal action allowed by law.
(d) If any violation of a rule adopted by the board is also an offense under Title 76, Utah Criminal Code, the violation is subject to the civil penalty, damages, expenses, and costs allowed under this Subsection (3) in addition to any criminal prosecution.
(e) The board may not apply this section or rules adopted under the authority of this section in a manner that violates a person's rights under the Utah Constitution or the First Amendment to the United States Constitution, including the right of persons to peaceably assemble.
(f) The board shall send proposed rules under this section to the legislative general counsel and the governor's general counsel for review and comment before the board adopts the rules.
(4) The board is exempt from the requirements of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, but shall adopt procurement rules substantially similar to the requirements of that chapter.
(5) (a) The board may:
(i) establish subcommittees made up of board members and members of the public to assist and support the executive director in accomplishing the executive director's duties;
(ii) establish fees for the use of capitol hill facilities and capitol hill grounds;
(iii) assign and allocate specific duties and responsibilities to any other state agency, if the other agency agrees to perform the duty or accept the responsibility;
(iv) contract with another state agency to provide services;
(v) delegate by specific motion of the board any authority granted to it by this section to the executive director;
(vi) in conjunction with Salt Lake City, expend monies to improve or maintain public property contiguous to East Capitol Boulevard and capitol hill;
(vii) provide wireless Internet service to the public without a fee in any capitol hill facility; and
(viii) when necessary, consult with the:
(A) Division of Facilities Construction and Management;
(B) State Library Division;
(C) Division of Archives and Records Service;
(D) Division of State History;
(E) Office of Museum Services; and
(F) Arts Council.
(b) The board's provision of wireless Internet service under Subsection (5)(a)(vii) shall be discontinued in the legislative area if the president of the Senate and the speaker of the House of Representatives each submit a signed letter to the board indicating that the service is disruptive to the legislative process and is to be discontinued.
(c) If a budget subcommittee is established by the board, the following shall serve as ex officio, nonvoting members of the budget subcommittee:
(i) the legislative fiscal analyst, or the analyst's designee, who shall be from the Office of Legislative Fiscal Analyst; and
(ii) the director of the Governor's Office of Planning and Budget, or the director's designee, who shall be from the Governor's Office of Planning and Budget.
(d) If a preservation and maintenance subcommittee is established by the board, the board may, by majority vote, appoint one or each of the following to serve on the subcommittee as voting members of the subcommittee:
(i) an architect, who shall be selected from a list of three architects submitted by the American Institute of Architects; or
(ii) an engineer, who shall be selected from a list of three engineers submitted by the American Civil Engineers Council.
(e) If the board establishes any subcommittees, the board may, by majority vote, appoint up to two people who are not members of the board to serve, at the will of the board, as nonvoting members of a subcommittee.
(f) Members of each subcommittee shall, at the first meeting of each calendar year, select one individual to act as chair of the subcommittee for a one-year term.
(6) (a) The board, and the employees of the board, may not move the office of the governor, lieutenant governor, president of the Senate, speaker of the House of Representatives, or a member of the Legislature from the State Capitol Building unless the removal is approved by:
(i) the governor, in the case of the governor's office;
(ii) the lieutenant governor, in the case of the lieutenant governor's office;
(iii) the president of the Senate, in the case of the president's office or the office of a member of the Senate; or
(iv) the speaker of the House of Representatives, in the case of the speaker's office or the office of a member of the House.
(b) The board and the employees of the board have no control over the furniture, furnishings, and decorative objects in the offices of the governor, lieutenant governor, or the members of the Legislature except as necessary to inventory or conserve items of historical significance owned by the state.
(c) The board and the employees of the board have no control over records and documents produced by or in the custody of a state agency, official, or employee having an office in a building on the capitol hill complex.
(d) Except for items identified by the board as having historical significance, and except as provided in Subsection (6)(b), the board and the employees of the board have no control over moveable furnishings and equipment in the custody of a state agency, official, or employee having an office in a building on the capitol hill complex.
Section 1302. Section 63C-11-202 is amended to read:
63C-11-202
. Powers and duties of authority.(1) The authority shall:
(a) hire an executive director, who shall serve as staff to the authority;
(b) oversee and make any necessary rules concerning the Pete Suazo Utah Athletic Commission created in Section 63C-11-303; and
(c) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary for the administration of this chapter.
(2) The authority may:
(a) hire employees to carry out its duties as budgetary constraints allow;
(b) solicit and accept contributions of moneys, services, and facilities from any other sources, public or private, and shall use these funds for coordinating the promotion and enhancement of sporting opportunities in Utah; and
(c) contract with an existing not-for-profit organization for the purpose of sports development throughout the state, including:
(i) branding, advertising, and marketing;
(ii) sports tourism promotion, including attracting and developing sporting events;
(iii) coordinating with any other entity the promotion or enhancement of sporting opportunities in Utah;
(iv) partnering with existing entities for Olympic-related sports development;
(v) coordinating with the Division of Parks and Recreation to establish a destination golf program to promote golf-related tourism; and
(vi) coordinating with existing entities the recruitment and relocation of the United States Olympic Committee National Governing Bodies and other organizations governing sports.
(3) The authority may not perform any of the functions listed in Subsections (2)(c)(i) through (vi).
(4) (a) The not-for-profit organization contracted with in Subsection (1):
(i) shall have at least five years' experience in the promotion, development, and marketing of sports events and sports tourism;
(ii) shall represent all geographic areas of the state; and
(iii) may not have a financial or ownership interest in any sports venue.
(b) Development of sports under the contract entered into under Subsection (1) shall include:
(i) summer and winter sports;
(ii) amateur and professional sports; and
(iii) participatory and spectator sports.
Section 1303. Section 63C-11-302 is amended to read:
63C-11-302
. Definitions.As used in this part:
(1) "Bodily injury" is as defined in Section 76-1-601.
(2) "Boxing" means the sport of attack and defense using the fist, which is covered by an approved boxing glove.
(3) (a) "Club fighting" means any contest of unarmed combat, whether admission is charged or not, where:
(i) the rules of the contest are not approved by the commission;
(ii) a licensed physician or osteopath is not in attendance;
(iii) an HIV negative test regarding each contestant not less than 180 days before the contest has not been provided to the commission;
(iv) the contest is not conducted in accordance with commission rules; or
(v) the contestants are not matched by the weight standards described in Section 63C-11-324.
(b) "Club fighting" does not include sparring if:
(i) it is conducted for training purposes;
(ii) no tickets are sold to spectators;
(iii) no concessions are available for spectators;
(iv) protective clothing, including protective headgear, a mouthguard, and a protective cup, is worn; and
(v) for boxing, 16 ounce boxing gloves are worn.
(4) "Commission" means the Pete Suazo Utah Athletic Commission created in this part.
(5) "Contest" means a live match, performance, or exhibition involving two or more persons engaged in unarmed combat.
(6) "Contestant" means an individual who participates in a contest.
(7) "Designated commission member" means a member of the commission designated to:
(a) attend and supervise a particular contest; and
(b) act on the behalf of the commission at a contest venue.
(8) "Elimination boxing contest" means a contest where:
(a) a number of contestants participate in a tournament;
(b) the duration is not more than 48 hours; and
(c) the loser of each contest is eliminated from further competition.
(9) "Exhibition" means an engagement in which the participants show or display their skills without necessarily striving to win.
(10) "Judge" means an individual qualified by training or experience to:
(a) rate the performance of contestants;
(b) score a contest; and
(c) determine with other judges whether there is a winner of the contest or whether the contestants performed equally, resulting in a draw.
(11) "Licensee" means an individual licensed by the commission to act as a:
(a) contestant;
(b) judge;
(c) manager;
(d) promoter;
(e) referee; or
(f) second.
(12) "Manager" means an individual who represents a contestant for the purposes of:
(a) obtaining a contest for a contestant;
(b) negotiating terms and conditions of the contract under which the contestant will engage in a contest; or
(c) arranging for a second for the contestant at a contest.
(13) "Promoter" means a person who engages in producing or staging contests and promotions.
(14) "Promotion" means a single contest or a combination of contests that:
(a) occur during the same time and at the same location; and
(b) is produced or staged by a promoter.
(15) "Purse" means any money, prize, remuneration, or any other valuable consideration a contestant receives or may receive for participation in a contest.
(16) "Referee" means an individual qualified by training or experience to act as the official attending a contest at the point of contact between contestants for the purpose of:
(a) enforcing the rules relating to the contest;
(b) stopping the contest in the event the health, safety, and welfare of a contestant or any other person in attendance at the contest is in jeopardy; and
(c) to act as a judge if so designated by the commission.
(17) "Round" means one of a number of individual time periods that, taken together, constitute a contest during which contestants are engaged in a form of unarmed combat.
(18) "Second" means an individual who attends a contestant at the site of the contest before, during, and after the contest in accordance with contest rules.
(19) "Secretary" means the secretary of the Pete Suazo Utah Athletic Commission.
(20) "Serious bodily injury" is as defined in Section 76-1-601.
(21) "Total gross receipts" means the amount of the face value of all tickets sold to a particular contest plus any sums received as consideration for holding the contest at a particular location.
(22) "Ultimate fighting" means a live contest, whether or not an admission fee is charged, in which:
(a) contest rules permit contestants to use a combination of boxing, kicking, wrestling, hitting, punching, or other combative contact techniques;
(b) contest rules incorporate a formalized system of combative techniques against which a contestant's performance is judged to determine the prevailing contestant;
(c) contest rules divide nonchampionship contests into three equal and specified rounds of no more than five minutes per round with a rest period of one minute between each round;
(d) contest rules divide championship contests into five equal and specified rounds of no more than five minutes per round with a rest period of one minute between each round; and
(e) contest rules prohibit contestants from:
(i) using anything that is not part of the human body, except for boxing gloves, to intentionally inflict serious bodily injury upon an opponent through direct contact or the expulsion of a projectile;
(ii) striking a person who demonstrates an inability to protect himself from the advances of an opponent;
(iii) biting; or
(iv) direct, intentional, and forceful strikes to the eyes, groin area, adam's apple area of the neck, and temple area of the head.
(23) (a) "Unarmed combat" means boxing or any other form of competition in which a blow is usually struck which may reasonably be expected to inflict bodily injury.
(b) "Unarmed combat" does not include a competition or exhibition between participants in which the participants engage in simulated combat for entertainment purposes.
(24) "Unlawful conduct" means organizing, promoting, or participating in a contest which involves contestants that are not licensed under this part.
(25) "Unprofessional conduct" means:
(a) entering into a contract for a contest in bad faith;
(b) participating in any sham or fake contest;
(c) participating in a contest pursuant to a collusive understanding or agreement in which the contestant competes in or terminates the contest in a manner that is not based upon honest competition or the honest exhibition of the skill of the contestant;
(d) engaging in an act or conduct that is detrimental to a contest, including any foul or unsportsmanlike conduct in connection with a contest;
(e) failing to comply with any limitation, restriction, or condition placed on a license;
(f) striking of a downed opponent by a contestant while the contestant remains on the contestant's feet unless the commission, following a hearing conducted under Subsection 63C-11-316(3) and before the contest, has exempted the contest and each contestant from this Subsection (25)(f);
(g) after entering the ring or contest area, penetrating an area within four feet of an opponent by a contestant, manager or second before the commencement of the contest; or
(h) as further defined by rules made by the commission under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(26) "White-collar contest" means a contest conducted at a training facility where no alcohol is served in which:
(a) for boxing:
(i) neither contestant is or has been a licensed contestant in any state or an amateur registered with USA Boxing, Inc.;
(ii) no cash prize, or other prize valued at greater than $35, is awarded;
(iii) protective clothing, including protective headgear, a mouthguard, a protective cup, and for a female contestant a chestguard, is worn;
(iv) 16 ounce boxing gloves are worn;
(v) the contest is no longer than three rounds of no longer than three minutes each;
(vi) no winner is declared; and
(vii) the contestants do not compete in a cage; and
(b) for ultimate fighting:
(i) neither contestant is or has been a licensed contestant in any state or an amateur registered with USA Boxing, Inc.;
(ii) no cash prize, or other prize valued at greater than $35, is awarded;
(iii) protective clothing, including a protective mouthguard and a protective cup, is worn;
(iv) elbow strikes are not allowed;
(v) a contestant is not allowed to stand and strike a downed opponent;
(vi) a closed-hand blow to the head is not allowed while either contestant is on the ground;
(vii) the contest is no longer than three rounds of no longer than three minutes each; and
(viii) no winner is declared.
Section 1304. Section 63C-11-304 is amended to read:
63C-11-304
. Commission powers and duties.(1) The commission shall:
(a) purchase and use a seal;
(b) adopt rules for the administration of this part in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(c) prepare all forms of contracts between sponsors, licensees, promoters, and contestants; and
(d) hold hearings relating to matters under its jurisdiction, including violations of this part or rules promulgated under this part.
(2) The commission may subpoena witnesses, take evidence, and require the production of books, papers, documents, records, contracts, recordings, tapes, correspondence, or other information relevant to an investigation if the commission or its designee considers it necessary.
Section 1305. Section 63C-11-308 is amended to read:
63C-11-308
. Licensing.(1) A license is required for a person to act as or to represent that the person is a:
(a) promoter;
(b) manager;
(c) contestant;
(d) second;
(e) referee; or
(f) judge.
(2) The commission shall issue to a person who qualifies under this part a license in the classifications of:
(a) promoter;
(b) manager;
(c) contestant;
(d) second;
(e) referee; or
(f) judge.
(3) All moneys collected pursuant to this section and Sections 63C-11-312, 63C-11-315, 63C-11-318, and 63C-11-321 shall be deposited in the General Fund.
(4) Each applicant for licensure as a promoter shall:
(a) submit an application in a form prescribed by the commission;
(b) pay the fee determined by the commission under Section [63-38-3.2] 63J-1-303;
(c) provide to the commission evidence of financial responsibility, which shall include financial statements and other information that the commission may reasonably require to determine that the applicant or licensee is able to competently perform as and meet the obligations of a promoter in this state;
(d) produce information, documentation, and assurances as may be required to establish by a preponderance of the evidence the applicant's reputation for good character, honesty, integrity, and responsibility, which shall include information, documentation, and assurances that the applicant:
(i) has not been convicted of a crime in any jurisdiction which the commission determines by the nature of the crime and circumstances surrounding the crime should disqualify the applicant from licensure in the public interest;
(ii) is not engaging in illegal gambling with respect to sporting events or gambling with respect to the promotions the applicant is promoting;
(iii) has not been found in a criminal or civil proceeding to have engaged in or attempted to engage in any fraud or misrepresentation in connection with a contest or any other sporting event; and
(iv) has not been found in a criminal or civil proceeding to have violated or attempted to violate any law with respect to a contest in any jurisdiction or any law, rule, or order relating to the regulation of contests in this state or any other jurisdiction;
(e) acknowledge in writing to the commission receipt, understanding, and intent to comply with this part and the rules made under this part; and
(f) if requested by the commission or the secretary, meet with the commission or the secretary to examine the applicant's qualifications for licensure.
(5) Each applicant for licensure as a contestant shall:
(a) be not less than 18 years of age at the time the application is submitted to the commission;
(b) submit an application in a form prescribed by the commission;
(c) pay the fee established by the commission under Section [63-38-3.2] 63J-1-303;
(d) provide a certificate of physical examination, dated not more than 60 days prior to the date of application for license, in a form provided by the commission, completed by a licensed physician and surgeon certifying that the applicant is free from any physical or mental condition that indicates the applicant should not engage in activity as a contestant;
(e) provide the commission with an accurate history of all matches that the applicant has engaged in since becoming a contestant, including information on whether the applicant won or lost each contest, and the matches in which there was a knockout or technical knockout;
(f) produce information, documentation, and assurances as may be required to establish by a preponderance of the evidence the applicant's reputation for good character, honesty, integrity, and responsibility, which shall include information, documentation, and assurances that the applicant:
(i) has not been convicted of a crime in any jurisdiction which the commission determines by the nature of the crime and circumstances surrounding that crime should disqualify the applicant from licensure in the public interest;
(ii) is not engaging in illegal gambling with respect to sporting events or gambling with respect to a contest in which the applicant will participate;
(iii) has not been found in a criminal or civil proceeding to have engaged in or attempted to have engaged in any fraud or misrepresentation in connection with a contest or any other sporting event; and
(iv) has not been found in a criminal or civil proceeding to have violated or attempted to violate any law with respect to contests in any jurisdiction or any law, rule, or order relating to the regulation of contests in this state or any other jurisdiction;
(g) acknowledge in writing to the commission receipt, understanding, and intent to comply with this part and the rules made under this part; and
(h) if requested by the commission or the secretary, meet with the commission or the secretary to examine the applicant's qualifications for licensure.
(6) Each applicant for licensure as a manager or second shall:
(a) submit an application in a form prescribed by the commission;
(b) pay a fee determined by the commission under Section [63-38-3.2] 63J-1-303;
(c) produce information, documentation, and assurances as may be required to establish by a preponderance of the evidence the applicant's reputation for good character, honesty, integrity, and responsibility, which shall include information, documentation, and assurances that the applicant:
(i) has not been convicted of a crime in any jurisdiction which the commission determines by the nature of the crime and circumstances surrounding that crime should disqualify the applicant from licensure in the public interest;
(ii) is not engaging in illegal gambling with respect to sporting events or gambling with respect to a contest in which the applicant is participating;
(iii) has not been found in a criminal or civil proceeding to have engaged in or attempted to have engaged in any fraud or misrepresentation in connection with a contest or any other sporting event; and
(iv) has not been found in a criminal or civil proceeding to have violated or attempted to violate any law with respect to a contest in any jurisdiction or any law, rule, or order relating to the regulation of contests in this state or any other jurisdiction;
(d) acknowledge in writing to the commission receipt, understanding, and intent to comply with this part and the rules made under this part; and
(e) if requested by the commission or secretary, meet with the commission or the secretary to examine the applicant's qualifications for licensure.
(7) Each applicant for licensure as a referee or judge shall:
(a) submit an application in a form prescribed by the commission;
(b) pay a fee determined by the commission under Section [63-38-3.2] 63J-1-303;
(c) produce information, documentation, and assurances as may be required to establish by a preponderance of the evidence the applicant's reputation for good character, honesty, integrity, and responsibility, which shall include information, documentation, and assurances that the applicant:
(i) has not been convicted of a crime in any jurisdiction which the commission determines by the nature of the crime and circumstances surrounding the crime should disqualify the applicant from licensure in the public interest;
(ii) is not engaging in illegal gambling with respect to sporting events or gambling with respect to a contest in which the applicant is participating;
(iii) has not been found in a criminal or civil proceeding to have engaged in or attempted to have engaged in any fraud or misrepresentation in connection with a contest or any other sporting event; and
(iv) has not been found in a criminal or civil proceeding to have violated or attempted to violate any law with respect to contests in any jurisdiction or any law, rule, or order relating to the regulation of contests in this state or any other jurisdiction;
(d) acknowledge in writing to the commission receipt, understanding, and intent to comply with this part and the rules made under this part;
(e) provide evidence satisfactory to the commission that the applicant is qualified by training and experience to competently act as a referee or judge in a contest; and
(f) if requested by the commission or the secretary, meet with the commission or the secretary to examine the applicant's qualifications for licensure.
(8) (a) A licensee serves at the pleasure, and under the direction, of the commission while participating in any way at a contest.
(b) A licensee's license may be suspended, or a fine imposed, if the licensee does not follow the commission's direction at an event or contest.
Section 1306. Section 63C-11-310 is amended to read:
63C-11-310
. Grounds for denial of license -- Disciplinary proceedings -- Reinstatement.(1) The commission shall refuse to issue a license to an applicant and shall refuse to renew or shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a licensee who does not meet the qualifications for licensure under this part.
(2) The commission may refuse to issue a license to an applicant and may refuse to renew or may revoke, suspend, restrict, place on probation, issue a public or private reprimand to, or otherwise act upon the license of any licensee if:
(a) the applicant or licensee has engaged in unlawful or unprofessional conduct, as defined by statute or rule under this part;
(b) the applicant or licensee has been determined to be mentally incompetent for any reason by a court of competent jurisdiction; or
(c) the applicant or licensee is unable to practice the occupation or profession with reasonable skill and safety because of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material, or as a result of any other mental or physical condition, when the licensee's condition demonstrates a threat or potential threat to the public health, safety, or welfare.
(3) Any licensee whose license under this part has been suspended, revoked, or restricted may apply for reinstatement of the license at reasonable intervals and upon compliance with any conditions imposed upon the licensee by statute, rule, or terms of the license suspension, revocation, or restriction.
(4) The commission may issue cease and desist orders:
(a) to a licensee or applicant who may be disciplined under Subsection (1) or (2); and
(b) to any person who otherwise violates this part or any rules adopted under this part.
(5) (a) The commission may impose an administrative fine for acts of unprofessional or unlawful conduct under this part.
(b) An administrative fine under this Subsection (5) may not exceed $2,500 for each separate act of unprofessional or unlawful conduct.
(c) The commission shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in any action to impose an administrative fine under this part.
(d) The imposition of a fine under this Subsection (5) does not affect any other action the commission or department may take concerning a license issued under this part.
(6) (a) The commission may not take disciplinary action against any person for unlawful or unprofessional conduct under this part, unless the commission initiates an adjudicative proceeding regarding the conduct within four years after the conduct is reported to the commission, except under Subsection (6)(b).
(b) The commission may not take disciplinary action against any person for unlawful or unprofessional conduct more than ten years after the occurrence of the conduct, unless the proceeding is in response to a civil or criminal judgment or settlement and the proceeding is initiated within one year following the judgment or settlement.
(7) (a) Notwithstanding [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the following may immediately suspend the license of a licensee at such time and for such period that the following believes is necessary to protect the health, safety, and welfare of the licensee, another licensee, or the public:
(i) the commission;
(ii) a designated commission member; or
(iii) if a designated commission member is not present, the secretary.
(b) The commission shall establish by rule appropriate procedures to invoke the suspension and to provide a suspended licensee a right to a hearing before the commission with respect to the suspension within a reasonable time after the suspension.
Section 1307. Section 63C-11-311 is amended to read:
63C-11-311
. Additional fees for license of promoter -- Dedicated credits -- Promotion of contests -- Annual exemption of showcase event.(1) In addition to the payment of any other fees and money due under this part, every promoter shall pay a license fee determined by the commission, which may be:
(a) (i) $100 for a contest or event occurring in a venue of fewer than 200 seats;
(ii) $200 for a contest or event occurring in a venue of at least 200 but fewer than 500 seats;
(iii) $300 for a contest or event occurring in a venue of at least 500 seats but fewer than 1,000 seats;
(iv) $400 for a contest or event occurring in a venue of at least 1,000 seats but fewer than 3,000 seats; or
(v) $600 for a contest or event occurring in a venue of at least 3,000 seats; and
(b) 3% of total gross receipts from the sale, lease, or other exploitation of broadcasting, television, and motion picture rights for each contest or exhibition.
(2) (a) One-half of license fees collected under Subsection (1)(a) from professional boxing contests or exhibitions shall be deposited in the General Fund.
(b) One-half of license fees collected under Subsection (1)(a) from professional boxing contests or exhibitions shall be retained by the commission as a dedicated credit to be used by the commission to award grants to organizations that promote amateur boxing in the state.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall adopt rules:
(a) governing the manner in which applications for grants under Subsection (2) may be submitted to the commission; and
(b) establishing standards for awarding grants under Subsection (2) to organizations which promote amateur boxing in the state.
(4) (a) For the purpose of creating a greater interest in contests in the state, the commission may exempt from the payment of license fees under this section one contest or exhibition in each calendar year, intended as a showcase event.
(b) The commission shall select the contest or exhibition to be exempted based on factors which include:
(i) attraction of the optimum number of spectators;
(ii) costs of promoting and producing the contest or exhibition;
(iii) ticket pricing;
(iv) committed promotions and advertising of the contest or exhibition;
(v) rankings and quality of the contestants; and
(vi) committed television and other media coverage of the contest or exhibition.
Section 1308. Section 63C-11-315 is amended to read:
63C-11-315
. Approval to hold contest or promotion -- Bond required.(1) An application to hold a contest or multiple contests as part of a single promotion shall be made by a licensed promoter to the commission on forms provided by the commission.
(2) The application shall be accompanied by a contest fee determined by the commission under Section [63-38-3.2] 63J-1-303.
(3) (a) The commission may approve or deny approval to hold a contest or promotion permitted under this part.
(b) Provisional approval under Subsection (3)(a) shall be granted upon a determination by the commission that:
(i) the promoter of the contest or promotion is properly licensed;
(ii) a bond meeting the requirements of Subsection (6) has been posted by the promoter of the contest or promotion; and
(iii) the contest or promotion will be held in accordance with this part and rules made under this part.
(4) (a) Final approval to hold a contest or promotion may not be granted unless the commission receives not less than seven days before the day of the contest with ten or more rounds:
(i) proof of a negative HIV test performed not more than 180 days before the day of the contest for each contestant;
(ii) a copy of each contestant's federal identification card;
(iii) a copy of a signed contract between each contestant and the promoter for the contest;
(iv) a statement specifying the maximum number of rounds of the contest;
(v) a statement specifying the site, date, and time of weigh-in; and
(vi) the name of the physician selected from among a list of registered and commission-approved ringside physicians who shall act as ringside physician for the contest.
(b) Notwithstanding Subsection (4)(a), the commission may approve a contest or promotion if the requirements under Subsection (4)(a) are not met because of unforseen circumstances beyond the promoter's control.
(5) Final approval for a contest under ten rounds in duration may be granted as determined by the commission after receiving the materials identified in Subsection (4) at a time determined by the commission.
(6) An applicant shall post a surety bond or cashier's check with the commission in the greater of $10,000 or the amount of the purse, providing for forfeiture and disbursement of the proceeds if the applicant fails to comply with:
(a) the requirements of this part; or
(b) rules made under this part relating to the promotion or conduct of the contest or promotion.
Section 1309. Section 63C-11-316 is amended to read:
63C-11-316
. Rules for the conduct of contests.(1) The commission shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the conduct of contests in the state.
(2) The rules shall include:
(a) authority for:
(i) stopping contests; and
(ii) impounding purses with respect to contests when there is a question with respect to the contest, contestants, or any other licensee associated with the contest; and
(b) reasonable and necessary provisions to ensure that all obligations of a promoter with respect to any promotion or contest are paid in accordance with agreements made by the promoter.
(3) (a) The commission may, in its discretion, exempt a contest and each contestant from the definition of unprofessional conduct found in Subsection 63C-11-302(25)(f) after:
(i) a promoter requests the exemption; and
(ii) the commission considers relevant factors, including:
(A) the experience of the contestants;
(B) the win and loss records of each contestant;
(C) each contestant's level of training; and
(D) any other evidence relevant to the contestants' professionalism and the ability to safely conduct the contest.
(b) The commission's hearing of a request for an exemption under this Subsection (3) is an informal adjudicative proceeding under Section [63-46b-4] 63G-4-202.
(c) The commission's decision to grant or deny a request for an exemption under this Subsection (3) is not subject to agency review under Section [63-46b-12] 63G-4-301.
Section 1310. Section 63C-11-317 is amended to read:
63C-11-317
. Medical examinations and drug tests.(1) The commission shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for medical examinations and drug testing of contestants, including provisions under which contestants shall:
(a) produce evidence based upon competent laboratory examination that they are HIV negative as a condition of participating as a contestant in any contest;
(b) be subject to random drug testing before or after participation in a contest, and sanctions, including barring participation in a contest or withholding a percentage of any purse, that shall be placed against a contestant testing positive for alcohol or any other drug that in the opinion of the commission is inconsistent with the safe and competent participation of that contestant in a contest;
(c) be subject to a medical examination by the ringside physician not more than 30 hours before the contest to identify any physical ailment or communicable disease that, in the opinion of the commission or designated commission member, are inconsistent with the safe and competent participation of that contestant in the contest; and
(d) be subject to medical testing for communicable diseases as considered necessary by the commission to protect the health, safety, and welfare of the licensees and the public.
(2) (a) Medical information concerning a contestant shall be provided by the contestant or medical professional or laboratory.
(b) A promoter or manager may not provide to or receive from the commission medical information concerning a contestant.
Section 1311. Section 63C-11-318 is amended to read:
63C-11-318
. Contests.(1) Except as provided in Section 63C-11-325, a licensee may not participate in:
(a) a boxing contest as a contestant if that person has participated in another boxing contest as a contestant within 30 days before the proposed boxing contest; or
(b) an ultimate fighting contest as a contestant if that person has participated in another ultimate fighting contest as a contestant within six days before the proposed ultimate fighting contest.
(2) Subsection (1) applies regardless of where the previous boxing contest occurred.
(3) During the period of time beginning 60 minutes before the beginning of a contest, the promoter shall demonstrate the promoter's compliance with the commission's security requirements to all commission members present at the contest.
(4) The commission shall establish fees in accordance with Section [63-38-3.2] 63J-1-303 to be paid by a promoter for the conduct of each contest or event composed of multiple contests conducted under this part.
Section 1312. Section 63D-2-103 is amended to read:
63D-2-103
. Collection of personally identifiable information.(1) A governmental entity may not collect personally identifiable information related to a user of the governmental entity's governmental website unless the governmental entity has taken reasonable steps to ensure that on the day on which the personally identifiable information is collected the governmental entity's governmental website complies with Subsection (2).
(2) A governmental website shall contain a privacy policy statement that discloses:
(a) (i) the identity of the governmental website operator; and
(ii) how the governmental website operator may be contacted:
(A) by telephone; or
(B) electronically;
(b) the personally identifiable information collected by the governmental entity;
(c) a summary of how the personally identifiable information is used by:
(i) the governmental entity; or
(ii) the governmental website operator;
(d) the practices of the following related to disclosure of personally identifiable information collected:
(i) the governmental entity; or
(ii) the governmental website operator;
(e) the procedures, if any, by which a user of a governmental entity may request:
(i) access to the user's personally identifiable information; and
(ii) access to correct the user's personally identifiable information; and
(f) without compromising the integrity of the security measures, a general description of the security measures in place to protect a user's personally identifiable information from unintended disclosure.
(3) (a) Personally identifiable information is not a classification of records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) Access to government records is governed by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 1313. Section 63E-1-102 is amended to read:
63E-1-102
. Definitions.As used in this title:
(1) "Authorizing statute" means the statute creating an entity as an independent entity.
(2) "Committee" means the Retirement and Independent Entities Committee created in Section 63E-1-201.
(3) "Independent corporation" means a corporation incorporated in accordance with Chapter 2, Independent Corporations Act.
(4) (a) "Independent entity" means an entity having a public purpose relating to the state or its citizens that is individually created by the state or is given by the state the right to exist and conduct its affairs as an:
(i) independent state agency; or
(ii) independent corporation.
(b) "Independent entity" includes the:
(i) Dairy Commission created in Title 4, Chapter 22, Dairy Promotion Act;
(ii) Heber Valley Railroad Authority created in Title 9, Chapter 3, Part 3, Heber Valley Historic Railroad Authority;
(iii) Utah Science Center Authority created in Title 9, Chapter 3, Part 4, Utah Science Center Authority;
(iv) Utah Housing Corporation created in Title 9, Chapter 4, Part 9, Utah Housing Corporation Act;
(v) Utah State Fair Corporation created in Title 9, Chapter 4, Part 11, Utah State Fair Corporation Act;
(vi) Workers' Compensation Fund created in Title 31A, Chapter 33, Workers' Compensation Fund;
(vii) Utah State Retirement Office created in Title 49, Chapter 11, Utah State Retirement Systems Administration;
(viii) School and Institutional Trust Lands Administration created in Title 53C, Chapter 1, Part 2, School and Institutional Trust Lands Administration;
(ix) Utah Communications Agency Network created in Title 63C, Chapter 7, Utah Communications Agency Network Act; and
(x) Utah Capital Investment Corporation created in [Title 63, Chapter 38f] Title 63M, Chapter 1, Part 12, Utah Venture Capital Enhancement Act.
(c) Notwithstanding this Subsection (4), "independent entity" does not include:
(i) the Public Service Commission of Utah created in Section 54-1-1;
(ii) an institution within the state system of higher education;
(iii) a city, county, or town;
(iv) a local school district;
(v) a local district under Title 17B, Limited Purpose Local Government Entities - Local Districts; or
(vi) a special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act.
(5) "Independent state agency" means an entity that is created by the state, but is independent of the governor's direct supervisory control.
(6) "Monies held in trust" means monies maintained for the benefit of:
(a) one or more private individuals, including public employees;
(b) one or more public or private entities; or
(c) the owners of a quasi-public corporation.
(7) "Public corporation" means an artificial person, public in ownership, individually created by the state as a body politic and corporate for the administration of a public purpose relating to the state or its citizens.
(8) "Quasi-public corporation" means an artificial person, private in ownership, individually created as a corporation by the state which has accepted from the state the grant of a franchise or contract involving the performance of a public purpose relating to the state or its citizens.
Section 1314. Section 63E-2-109 is amended to read:
63E-2-109
. State statutes.(1) Except as specifically modified in its authorizing statute, each independent corporation shall be exempt from the statutes governing state agencies, including:
(a) Title 51, Chapter 5, Funds Consolidation Act;
(b) Title 51, Chapter 7, State Money Management Act;
(c) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(d) [Title 63, Chapter 38a] Title 63J, Chapter 2, Revenue Procedures and Control Act;
(e) [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(f) [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(g) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(h) Title 63A, Utah Administrative Services Code; and
(i) Title 67, Chapter 19, Utah Personnel Management Act.
(2) Except as specifically modified in its authorizing statute, each independent corporation shall be subject to:
(a) Title 52, Chapter 4, Open and Public Meetings Act; and
(b) [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(3) Each independent corporation board may adopt its own policies and procedures governing its:
(a) funds management;
(b) audits; and
(c) personnel.
Section 1315. Section 63F-1-103 is amended to read:
63F-1-103
. Department of Technology Services.(1) There is created within state government the Department of Technology Services which has all of the policymaking functions, regulatory and enforcement powers, rights, duties, and responsibilities outlined in this title.
(2) In accordance with Subsection [63-38-3.5] 63J-1-306(7), the department has authority to operate as an internal service fund agency as provided in Section [63-38-3.5] 63J-1-306.
Section 1316. Section 63F-1-204 is amended to read:
63F-1-204
. Agency information technology plans.(1) (a) By July 1 of each year, each executive branch agency shall submit an agency information technology plan to the chief information officer at the department level, unless the governor or the chief information officer request an information technology plan be submitted by a subunit of a department, or by an executive branch agency other than a department.
(b) The information technology plans required by this section shall be in the form and level of detail required by the chief information officer, by administrative rule adopted in accordance with Section 63F-1-206, and shall include, at least:
(i) the information technology objectives of the agency;
(ii) any performance measures used by the agency for implementing the agency's information technology objectives;
(iii) any planned expenditures related to information technology;
(iv) the agency's need for appropriations for information technology;
(v) how the agency's development of information technology coordinates with other state and local governmental entities;
(vi) any efforts the agency has taken to develop public and private partnerships to accomplish the information technology objectives of the agency; and
(vii) the efforts the executive branch agency has taken to conduct transactions electronically in compliance with Section 46-4-503.
(2) (a) Except as provided in Subsection (2)(b), an agency information technology plan described in Subsection (1) shall comply with the executive branch strategic plan established in accordance with Section 63F-1-203.
(b) If the executive branch agency submitting the agency information technology plan justifies the need to depart from the executive branch strategic plan, an agency information technology plan may depart from the executive branch strategic plan to the extent approved by the chief information officer.
(3) (a) On receipt of a state agency information technology plan, the chief information officer shall forward a complete copy of the agency information technology plan to the Division of Enterprise Technology created in Section 63F-1-401 and the Division of Integrated Technology created in Section 63F-1-501.
(b) The divisions shall provide the chief information officer a written analysis of each agency plan submitted in accordance with Sections 63F-1-404 and 63F-1-504.
(4) (a) The chief information officer shall review each agency plan to determine:
(i) (A) whether the agency plan complies with the executive branch strategic plan and state information architecture; or
(B) to the extent that the agency plan does not comply with the executive branch strategic plan or state information architecture, whether the executive branch entity is justified in departing from the executive branch strategic plan, or state information architecture; and
(ii) whether the agency plan meets the information technology and other needs of:
(A) the executive branch agency submitting the plan; and
(B) the state.
(b) In conducting the review required by Subsection (4)(a), the chief information officer shall consider the analysis submitted by the divisions under Subsection (3).
(5) After the chief information officer conducts the review described in Subsection (4) of an agency information technology plan, the chief information officer may:
(a) approve the agency information technology plan;
(b) disapprove the agency information technology plan; or
(c) recommend modifications to the agency information technology plan.
(6) An executive branch agency or the department may not submit a request for appropriation related to information technology or an information technology system to the governor in accordance with Section [63-38-2] 63J-1-201 until after the executive branch agency's information technology plan is approved by the chief information officer.
Section 1317. Section 63F-1-205 is amended to read:
63F-1-205
. Approval of acquisitions of information technology.(1) (a) In accordance with Subsection (2), the chief information officer shall approve the acquisition by an executive branch agency of:
(i) information technology equipment;
(ii) telecommunications equipment;
(iii) software;
(iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
(v) data acquisition.
(b) The chief information officer may negotiate the purchase, lease, or rental of private or public information technology or telecommunication services or facilities in accordance with this section.
(c) Where practical, efficient, and economically beneficial, the chief information officer shall use existing private and public information technology or telecommunication resources.
(2) Before negotiating a purchase, lease, or rental under Subsection (1) for an amount that exceeds the value established by the chief information officer by rule in accordance with Section 63F-1-206, the chief information officer shall:
(a) conduct an analysis of the needs of executive branch agencies and subscribers of services and the ability of the proposed information technology or telecommunications services or supplies to meet those needs; and
(b) for purchases, leases, or rentals not covered by an existing statewide contract, provide in writing to the chief procurement officer in the Division of Purchasing and General Services that:
(i) the analysis required in Subsection (2)(a) was completed; and
(ii) based on the analysis, the proposed purchase, lease, rental, or master contract of services, products, or supplies is practical, efficient, and economically beneficial to the state and the executive branch agency or subscriber of services.
(3) In approving an acquisition described in Subsections (1) and (2), the chief information officer shall:
(a) establish by administrative rule, in accordance with Section 63F-1-206, standards under which an agency must obtain approval from the chief information officer before acquiring the items listed in Subsections (1) and (2);
(b) for those acquisitions requiring approval, determine whether the acquisition is in compliance with:
(i) the executive branch strategic plan;
(ii) the applicable agency information technology plan;
(iii) the budget for the executive branch agency or department as adopted by the Legislature; and
(iv) [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code; and
(c) in accordance with Section 63F-1-207, require coordination of acquisitions between two or more executive branch agencies if it is in the best interests of the state.
(4) (a) Each executive branch agency shall provide the chief information officer with complete access to all information technology records, documents, and reports:
(i) at the request of the chief information officer; and
(ii) related to the executive branch agency's acquisition of any item listed in Subsection (1).
(b) Beginning July 1, 2006 and in accordance with administrative rules established by the department under Section 63F-1-206, no new technology projects may be initiated by an executive branch agency or the department unless the technology project is described in a formal project plan and the business case analysis has been approved by the chief information officer and agency head. The project plan and business case analysis required by this Subsection (4) shall be in the form required by the chief information officer, and shall include:
(i) a statement of work to be done and existing work to be modified or displaced;
(ii) total cost of system development and conversion effort, including system analysis and programming costs, establishment of master files, testing, documentation, special equipment cost and all other costs, including overhead;
(iii) savings or added operating costs that will result after conversion;
(iv) other advantages or reasons that justify the work;
(v) source of funding of the work, including ongoing costs;
(vi) consistency with budget submissions and planning components of budgets; and
(vii) whether the work is within the scope of projects or initiatives envisioned when the current fiscal year budget was approved.
(5) (a) The chief information officer and the Division of Purchasing and General Services shall work cooperatively to establish procedures under which the chief information officer shall monitor and approve acquisitions as provided in this section.
(b) The procedures established under this section shall include at least the written certification required by Subsection [63-56-204] 63G-6-204(8).
Section 1318. Section 63F-1-206 is amended to read:
63F-1-206
. Rulemaking -- Policies.(1) (a) Except as provided in Subsection (2), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the chief information officer shall make rules that:
(i) provide standards that impose requirements on executive branch agencies that:
(A) are related to the security of the statewide area network; and
(B) establish standards for when an agency must obtain approval before obtaining items listed in Subsection 63F-1-205(1);
(ii) specify the detail and format required in an agency information technology plan submitted in accordance with Section 63F-1-204;
(iii) provide for standards related to the privacy policies of websites operated by or on behalf of an executive branch agency;
(iv) provide for the acquisition, licensing, and sale of computer software;
(v) specify the requirements for the project plan and business case analysis required by Section 63F-1-205;
(vi) provide for project oversight of agency technology projects when required by Section 63F-1-205;
(vii) establish, in accordance with Subsection 63F-1-205(2), the implementation of the needs assessment for information technology purchases; and
(viii) establish telecommunications standards and specifications in accordance with Section 63F-1-404.
(b) The rulemaking authority in this Subsection (1) is in addition to any other rulemaking authority granted by this title.
(2) (a) Notwithstanding [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and subject to Subsection (2)(b), the chief information officer may adopt a policy that outlines procedures to be followed by the chief information officer in facilitating the implementation of this title by executive branch agencies if the policy:
(i) is consistent with the executive branch strategic plan; and
(ii) is not required to be made by rule under Subsection (1) or Section [63-46a-3] 63G-3-201.
(b) (i) A policy adopted by the chief information officer under Subsection (2)(a) may not take effect until 30 days after the day on which the chief information officer submits the policy to:
(A) the governor; and
(B) all cabinet level officials.
(ii) During the 30-day period described in Subsection (2)(b)(i), cabinet level officials may review and comment on a policy submitted under Subsection (2)(b)(i).
(3) (a) Notwithstanding Subsection (1) or (2) or [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, without following the procedures of Subsection (1) or (2), the chief information officer may adopt a security procedure to be followed by executive branch agencies to protect the statewide area network if:
(i) broad communication of the security procedure would create a significant potential for increasing the vulnerability of the statewide area network to breach or attack; and
(ii) after consultation with the chief information officer, the governor agrees that broad communication of the security procedure would create a significant potential increase in the vulnerability of the statewide area network to breach or attack.
(b) A security procedure described in Subsection (3)(a) is classified as a protected record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(c) The chief information officer shall provide a copy of the security procedure as a protected record to:
(i) the chief justice of the Utah Supreme Court for the judicial branch;
(ii) the speaker of the House of Representatives and the president of the Senate for the legislative branch;
(iii) the chair of the Board of Regents; and
(iv) the chair of the State Board of Education.
Section 1319. Section 63F-1-207 is amended to read:
63F-1-207
. Coordination within the executive branch -- Cooperation with other branches.(1) In accordance with the executive branch strategic plan and the requirements of this title, the chief information officer shall coordinate the development of information technology systems between two or more executive branch agencies subject to:
(a) the budget approved by the Legislature; and
(b) [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
(2) In addition to the coordination described in Subsection (1), the chief information officer shall promote cooperation regarding information technology in a manner consistent with the interbranch coordination plan created in accordance with Section 63F-1-201.
Section 1320. Section 63F-1-209 is amended to read:
63F-1-209
. Delegation of department staff to executive branch agencies -- Prohibition against executive branch agency information technology staff.(1) (a) The chief information officer shall assign department staff to serve an agency in-house if the chief information officer and the executive branch agency director jointly determine it is appropriate to provide information technology services to:
(i) the agency's unique mission critical functions and applications;
(ii) the agency's participation in and use of statewide enterprise architecture under the Division of Enterprise Technology; and
(iii) the agency's use of coordinated technology services with other agencies that share similar characteristics with the agency under the Division of Integrated Technology.
(b) (i) An agency may request the chief information officer to assign in-house staff support from the department.
(ii) The chief information officer shall respond to the agency's request for in-house staff support in accordance with Subsection (1)(a).
(c) The department shall enter into service agreements with an agency when department staff is assigned in-house to the agency under the provisions of this section.
(d) An agency that receives in-house staff support assigned from the department under the provision of this section is responsible for paying the rates charged by the department for that staff as established under Section 63F-1-301.
(2) (a) After July 1, 2006, an executive branch agency may not create a full-time equivalent position or part-time position, or request an appropriation to fund a full-time equivalent position or part-time position under the provisions of Section [63-38-2] 63J-1-201 for the purpose of providing information technology services to the agency unless:
(i) the chief information officer has approved a delegation under Section 63F-1-208; and
(ii) the Division of Agency Services conducts an audit under Section 63F-1-604 and finds that the delegation of information technology services to the agency meets the requirements of Section 63F-1-208.
(b) The prohibition against a request for appropriation under Subsection (2)(a) does not apply to a request for appropriation needed to pay rates imposed under Subsection (1)(d).
Section 1321. Section 63F-1-301 is amended to read:
63F-1-301
. Cost based services -- Fees -- Rate committee.(1) The chief information officer shall:
(a) at the lowest practical cost, manage the delivery of efficient and cost-effective information technology and telecommunication services for:
(i) all executive branch agencies; and
(ii) entities that subscribe to the services in accordance with Section 63F-1-303; and
(b) provide priority service to public safety agencies.
(2) (a) In accordance with this Subsection (2), the chief information officer shall prescribe a schedule of fees for all services rendered by the department to:
(i) an executive branch entity; or
(ii) an entity that subscribes to services rendered by the department in accordance with Section 63F-1-303.
(b) Each fee included in the schedule of fees required by Subsection (2)(a):
(i) shall be equitable;
(ii) should be based upon a zero based, full cost accounting of activities necessary to provide each service for which a fee is established; and
(iii) for each service multiplied by the projected consumption of the service recovers no more or less than the full cost of each service.
(c) Before charging a fee for its services to an executive branch agency or to a subscriber of services other than an executive branch agency, the chief information officer shall:
(i) submit the proposed rates, fees, and cost analysis to the Rate Committee established in Section 63F-1-302; and
(ii) obtain the approval of the Legislature as required by Section [63-38-3.5] 63J-1-306.
(d) The chief information officer shall conduct a market analysis by July 1, 2006, and periodically thereafter, of proposed rates and fees, which analysis shall include a comparison of the department's rates with the fees of other public or private sector providers where comparable services and rates are reasonably available.
Section 1322. Section 63F-1-302 is amended to read:
63F-1-302
. Information Technology Rate Committee -- Membership -- Duties.(1) (a) There is created an Information Technology Rate Committee which shall consist of:
(i) the director of the Governor's Office of Planning and Budget, or a designee;
(ii) the executive directors, or their designee, of three executive branch agencies that use services and pay rates to one of the department internal service funds, appointed by the governor for a two-year term;
(iii) the director of the Division of Finance, or a designee; and
(iv) the chief information officer.
(b) (i) The director of the Division of Finance shall serve as chair of the committee.
(ii) Members of the committee who are state government employees and who do not receive salary, per diem, or expenses from their agency for their service on the committee shall receive no compensation, benefits, per diem, or expenses for the member's service on the committee.
(c) The department shall provide staff services to the committee.
(2) (a) Any internal service funds managed by the department shall submit to the committee a proposed rate and fee schedule for services rendered by the department to an executive branch agency or an entity that subscribes to services rendered by the department.
(b) The committee shall:
(i) conduct meetings in accordance with Title 52, Chapter 4, Open and Public Meetings Act;
(ii) review the proposed rate and fee schedule and determine if the proposed fee is based on cost recovery as required by Subsection 63F-1-301(2)(b);
(iii) review the proposed rate and fee schedules and may approve, increase, or decrease the rate and fee;
(iv) recommend a proposed rate and fee schedule for each internal service fund to:
(A) the Governor's Office of Planning and Budget; and
(B) the Office of Legislative Fiscal Analyst for review by the Legislature in accordance with Section [63-38-3.5] 63J-1-306, which requires the Legislature to approve the internal service fund agency's rates, fees, and budget in an appropriations act; and
(v) in accordance with Section [63-38-3.5] 63J-1-306, review and approve, increase or decrease an interim rate, fee, or amount when an internal service fund agency begins a new service or introduces a new product between annual general sessions of the Legislature, which rate, fee, or amount shall be submitted to the Legislature at the next annual general session.
(c) The committee may in accordance with Subsection [63-38-3.5] 63J-1-306(4) decrease a rate, fee, or amount that has been approved by the Legislature.
Section 1323. Section 63F-1-509 is amended to read:
63F-1-509
. Statewide Global Positioning Reference Network created -- Advisory committee.(1) (a) There is created the Statewide Global Positioning Reference Network to improve the quality of geographic information system data and the productivity, efficiency, and cost-effectiveness of government services.
(b) The network shall provide a system of permanently mounted, fully networked, global positioning system base stations that will provide real time radio navigation and establish a standard statewide coordinate reference system.
(c) The center shall administer the network.
(2) (a) There is created the Global Positioning Systems Advisory Committee to advise the center on implementing and maintaining the network.
(b) The committee membership shall consist of:
(i) the center manager or the manager's designee;
(ii) a representative from the Department of Transportation created by Section 72-1-201 designated by the executive director appointed under Section 72-1-202;
(iii) the chief information officer or the chief information officer's designee;
(iv) a representative from the Utah Association of County Surveyors; and
(v) a representative from the Utah Council of Land Surveyors.
(c) The representative from the center shall be the chair of the committee.
(d) The committee shall meet upon the call of the chair or a majority of the committee members.
(e) The committee chair shall give reasonable notice to each member prior to any meeting.
(f) Three members shall constitute a quorum for the transaction of business.
(g) The center shall provide staff support to the committee.
(h) Committee members who are state government employees shall receive no additional compensation for their work on the committee.
(i) Committee members who are not state government employees shall receive no compensation or expenses for their work on the committee.
(j) The committee shall recommend rules to the chief information officer for adoption under Subsection (3).
(3) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the chief information officer shall make, in consultation with the committee, rules providing for operating policies and procedures for the network.
(b) The rules shall consider:
(i) network development that serves a public purpose;
(ii) increased productivity and efficiency for state agencies; and
(iii) costs and longevity of the network.
Section 1324. Section 63G-1-101 is enacted to read:
TITLE 63G. GENERAL GOVERNMENT
CHAPTER 1. STATE SYMBOLS AND DESIGNATIONS
Part 1. General Provisions
63G-1-101. Title.
(1) This title is known as "General Government."
(2) This chapter is known as "State Symbols and Designations."
Section 1325. Section 63G-1-201, which is renumbered from Section 63-13-1.5 is renumbered and amended to read:
Part 2. State Language
[63-13-1.5]. 63G-1-201. Official state language.
(1) English is declared to be the official language of Utah.
(2) As the official language of this State, the English language is the sole language of the government, except as otherwise provided in this section.
(3) Except as provided in Subsection (4), all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English.
(4) Languages other than English may be used when required:
(a) by the United States Constitution, the Utah State Constitution, federal law, or federal regulation;
(b) by law enforcement or public health and safety needs;
(c) by public and higher education systems according to rules made by the State Board of Education and the State Board of Regents to comply with Subsection (5);
(d) in judicial proceedings, when necessary to insure that justice is served;
(e) to promote and encourage tourism and economic development, including the hosting of international events such as the Olympics; and
(f) by libraries to:
(i) collect and promote foreign language materials; and
(ii) provide foreign language services and activities.
(5) The State Board of Education and the State Board of Regents shall make rules governing the use of foreign languages in the public and higher education systems that promote the following principles:
(a) non-English speaking children and adults should become able to read, write, and understand English as quickly as possible;
(b) foreign language instruction should be encouraged;
(c) formal and informal programs in English as a Second Language should be initiated, continued, and expanded; and
(d) public schools should establish communication with non-English speaking parents of children within their systems, using a means designed to maximize understanding when necessary, while encouraging those parents who do not speak English to become more proficient in English.
(6) Unless exempted by Subsection (4), all state funds appropriated or designated for the printing or translation of materials or the provision of services or information in a language other than English shall be returned to the General Fund.
(a) Each state agency that has state funds appropriated or designated for the printing or translation of materials or the provision of services or information in a language other than English shall:
(i) notify the Division of Finance that those monies exist and the amount of those monies; and
(ii) return those monies to the Division of Finance.
(b) The Division of Finance shall account for those monies and inform the Legislature of the existence and amount of those monies at the beginning of the Legislature's annual general session.
(c) The Legislature may appropriate any monies received under this section to the State School Board for use in English as a Second Language programs.
(7) Nothing in this section affects the ability of government employees, private businesses, non-profit organizations, or private individuals to exercise their rights under:
(a) the First Amendment of the United States Constitution; and
(b) Utah Constitution, Article 1, Sections 1 and 15.
(8) If any provision of this section, or the application of any such provision to any person or circumstance, is held invalid, the remainder of this act shall be given effect without the invalid provision or application.
Section 1326. Section 63G-1-301, which is renumbered from Section 63-13-2 is renumbered and amended to read:
Part 3. State Holidays
[63-13-2]. 63G-1-301. Legal holidays -- Personal preference day -- Governor authorized to declare additional days.
(1) (a) The following-named days are legal holidays in this state:
(i) every Sunday;
(ii) January 1, called New Year's Day;
(iii) the third Monday of January, called Dr. Martin Luther King, Jr. Day;
(iv) the third Monday of February, called Washington and Lincoln Day;
(v) the last Monday of May, called Memorial Day;
(vi) July 4, called Independence Day;
(vii) July 24, called Pioneer Day;
(viii) the first Monday of September, called Labor Day;
(ix) the second Monday of October, called Columbus Day;
(x) November 11, called Veterans' Day;
(xi) the fourth Thursday of November, called Thanksgiving Day;
(xii) December 25, called Christmas; and
(xiii) all days which may be set apart by the President of the United States, or the governor of this state by proclamation as days of fast or thanksgiving.
(b) If any of the holidays under Subsection (1)(a), except the first mentioned, namely Sunday, falls on Sunday, then the following Monday shall be the holiday.
(c) If any of the holidays under Subsection (1)(a) falls on Saturday the preceding Friday shall be the holiday.
(d) Each employee may select one additional day, called Personal Preference Day, to be scheduled pursuant to rules adopted by the Department of Human Resource Management.
(2) (a) Whenever in his opinion extraordinary conditions exist justifying the action, the governor may:
(i) declare, by proclamation, legal holidays in addition to those holidays under Subsection (1); and
(ii) limit the holidays to certain classes of business and activities to be designated by him.
(b) A holiday may not extend for a longer period than 60 consecutive days.
(c) Any holiday may be renewed for one or more periods not exceeding 30 days each as the governor may consider necessary, and any holiday may, by like proclamation, be terminated before the expiration of the period for which it was declared.
Section 1327. Section 63G-1-401, which is renumbered from Section 63-13-5.6 is renumbered and amended to read:
Part 4. State Commemorative Periods
[63-13-5.6]. 63G-1-401. Commemorative periods.
(1) The following days shall be commemorated yearly:
(a) Bill of Rights Day, on December 15;
(b) Constitution Day, on September 17;
(c) Yellow Ribbon Day, on the third Monday in May, in honor of men and women who are serving or have served in the U.S. armed forces around the world in defense of freedom;
(d) POW/MIA Recognition Day, on the third Friday in September; and
(e) Indigenous People Day, the Monday immediately preceding Thanksgiving.
(2) The Department of Veterans' Affairs shall coordinate activities, special programs, and promotional information to heighten public awareness and involvement relating to Subsections (1)(c) and (d).
(3) The month of November shall be commemorated yearly as American Indian Heritage Month.
(4) The first full week of May shall be commemorated yearly as State Water Week to recognize the importance of water conservation, quality, and supply in the state.
Section 1328. Section 63G-1-501, which is renumbered from Section 63-13-5 is renumbered and amended to read:
Part 5. State Flag
[63-13-5]. 63G-1-501. State flag.
The state flag of Utah shall be a flag of blue field, fringed, with gold borders, with the following device worked in natural colors on the center of the blue field:
The center a shield; above the shield and thereon an American eagle with outstretched wings; the top of the shield pierced with six arrows arranged crosswise; upon the shield under the arrows the word "Industry," and below the word "Industry" on the center of the shield, a beehive; on each side of the beehive, growing sego lilies; below the beehive and near the bottom of the shield, the word "Utah," and below the word "Utah" and on the bottom of the shield, the figures "1847"; with the appearance of being back of the shield there shall be two American flags on flagstaffs placed crosswise with the flag so draped that they will project beyond each side of the shield, the heads of the flagstaffs appearing in front of the eagle's wings and the bottom of each staff appearing over the face of the draped flag below the shield; below the shield and flags and upon the blue field, the figures "1896"; around the entire design, a narrow circle in gold.
Section 1329. Section 63G-1-601, which is renumbered from Section 63-13-5.5 is renumbered and amended to read:
Part 6. State Symbols
[63-13-5.5]. 63G-1-601. State symbols.
(1) Utah's state animal is the elk.
(2) Utah's state bird is the sea gull.
(3) Utah's state centennial astronomical symbol is the Beehive Cluster located in the constellation of Cancer the Crab.
(4) Utah's state centennial star is Dubhe, one of the seven bright stars composing the Big Dipper in the constellation Ursa Major.
(5) Utah's state centennial tartan, which honors the first Scots known to have been in Utah and those Utahns of Scottish heritage, shall have a pattern or repeating-half-sett of white-2, blue-6, red-6, blue-4, red-6, green-18, red-6, and white-4 to represent the tartan worn anciently by the Logan and Skene clans, with the addition of a white stripe.
(6) Utah's state cooking pot is the dutch oven.
(7) Utah's state emblem is the beehive.
(8) Utah's state fish is the Bonneville cutthroat trout.
(9) Utah's state flower is the sego lily.
(10) Utah's state folk dance is the square dance, the folk dance that is called, cued, or prompted to the dancers and includes squares, rounds, clogging, contra, line, and heritage dances.
(11) Utah's state fossil is the Allosaurus.
(12) Utah's state fruit is the cherry.
(13) Utah's state vegetable is the Spanish sweet onion.
(14) Utah's historic state vegetable is the sugar beet.
(15) Utah's state gem is topaz, as is prominently found in the Thomas Mountain Range in Juab County, Utah.
(16) Utah's state grass is Indian rice grass.
(17) Utah's state hymn is "Utah We Love Thee" by Evan Stephens.
(18) Utah's state insect is the honeybee.
(19) Utah's state mineral is copper.
(20) Utah's state motto is "Industry."
(21) Utah's state railroad museum is Ogden Union Station.
(22) Utah's state rock is coal.
(23) Utah's state song is "Utah This is the Place" by Sam and Gary Francis.
(24) Utah's state tree is the blue spruce.
Section 1330. Section 63G-2-101, which is renumbered from Section 63-2-101 is renumbered and amended to read:
CHAPTER 2. GOVERNMENT RECORDS ACCESS AND MANAGEMENT ACT
Part 1. General Provisions
[63-2-101]. 63G-2-101. Title.
This chapter is known as the "Government Records Access and Management Act."
Section 1331. Section 63G-2-102, which is renumbered from Section 63-2-102 is renumbered and amended to read:
[63-2-102
]. 63G-2-102. Legislative intent.(1) In enacting this act, the Legislature recognizes two constitutional rights:
(a) the public's right of access to information concerning the conduct of the public's business; and
(b) the right of privacy in relation to personal data gathered by governmental entities.
(2) The Legislature also recognizes a public policy interest in allowing a government to restrict access to certain records, as specified in this chapter, for the public good.
(3) It is the intent of the Legislature to:
(a) promote the public's right of easy and reasonable access to unrestricted public records;
(b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public's interest in access;
(c) prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided in this chapter;
(d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices;
(e) favor public access when, in the application of this act, countervailing interests are of equal weight; and
(f) establish fair and reasonable records management practices.
Section 1332. Section 63G-2-103, which is renumbered from Section 63-2-103 is renumbered and amended to read:
[63-2-103
]. 63G-2-103. Definitions.As used in this chapter:
(1) "Audit" means:
(a) a systematic examination of financial, management, program, and related records for the purpose of determining the fair presentation of financial statements, adequacy of internal controls, or compliance with laws and regulations; or
(b) a systematic examination of program procedures and operations for the purpose of determining their effectiveness, economy, efficiency, and compliance with statutes and regulations.
(2) "Chronological logs" mean the regular and customary summary records of law enforcement agencies and other public safety agencies that show:
(a) the time and general nature of police, fire, and paramedic calls made to the agency;
(b) and any arrests or jail bookings made by the agency.
(3) "Classification," "classify," and their derivative forms mean determining whether a record series, record, or information within a record is public, private, controlled, protected, or exempt from disclosure under Subsection [63-2-201] 63G-2-201(3)(b).
(4) (a) "Computer program" means:
(i) a series of instructions or statements that permit the functioning of a computer system in a manner designed to provide storage, retrieval, and manipulation of data from the computer system; and
(ii) any associated documentation and source material that explain how to operate the computer program.
(b) "Computer program" does not mean:
(i) the original data, including numbers, text, voice, graphics, and images;
(ii) analysis, compilation, and other manipulated forms of the original data produced by use of the program; or
(iii) the mathematical or statistical formulas, excluding the underlying mathematical algorithms contained in the program, that would be used if the manipulated forms of the original data were to be produced manually.
(5) (a) "Contractor" means:
(i) any person who contracts with a governmental entity to provide goods or services directly to a governmental entity; or
(ii) any private, nonprofit organization that receives funds from a governmental entity.
(b) "Contractor" does not mean a private provider.
(6) "Controlled record" means a record containing data on individuals that is controlled as provided by Section [63-2-303] 63G-2-304.
(7) "Designation," "designate," and their derivative forms mean indicating, based on a governmental entity's familiarity with a record series or based on a governmental entity's review of a reasonable sample of a record series, the primary classification that a majority of records in a record series would be given if classified and the classification that other records typically present in the record series would be given if classified.
(8) "Elected official" means each person elected to a state office, county office, municipal office, school board or school district office, local district office, or special service district office, but does not include judges.
(9) "Explosive" means a chemical compound, device, or mixture:
(a) commonly used or intended for the purpose of producing an explosion; and
(b) that contains oxidizing or combustive units or other ingredients in proportions, quantities, or packing so that:
(i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the compound or mixture may cause a sudden generation of highly heated gases; and
(ii) the resultant gaseous pressures are capable of:
(A) producing destructive effects on contiguous objects; or
(B) causing death or serious bodily injury.
(10) "Government audit agency" means any governmental entity that conducts an audit.
(11) (a) "Governmental entity" means:
(i) executive department agencies of the state, the offices of the governor, lieutenant governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole, the Board of Examiners, the National Guard, the Career Service Review Board, the State Board of Education, the State Board of Regents, and the State Archives;
(ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative committees, except any political party, group, caucus, or rules or sifting committee of the Legislature;
(iii) courts, the Judicial Council, the Office of the Court Administrator, and similar administrative units in the judicial branch;
(iv) any state-funded institution of higher education or public education; or
(v) any political subdivision of the state, but, if a political subdivision has adopted an ordinance or a policy relating to information practices pursuant to Section [63-2-701] 63G-2-701, this chapter shall apply to the political subdivision to the extent specified in Section [63-2-701] 63G-2-701 or as specified in any other section of this chapter that specifically refers to political subdivisions.
(b) "Governmental entity" also means every office, agency, board, bureau, committee, department, advisory board, or commission of an entity listed in Subsection (11)(a) that is funded or established by the government to carry out the public's business.
(12) "Gross compensation" means every form of remuneration payable for a given period to an individual for services provided including salaries, commissions, vacation pay, severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any similar benefit received from the individual's employer.
(13) "Individual" means a human being.
(14) (a) "Initial contact report" means an initial written or recorded report, however titled, prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to either a public complaint about or the discovery of an apparent violation of law, which report may describe:
(i) the date, time, location, and nature of the complaint, the incident, or offense;
(ii) names of victims;
(iii) the nature or general scope of the agency's initial actions taken in response to the incident;
(iv) the general nature of any injuries or estimate of damages sustained in the incident;
(v) the name, address, and other identifying information about any person arrested or charged in connection with the incident; or
(vi) the identity of the public safety personnel, except undercover personnel, or prosecuting attorney involved in responding to the initial incident.
(b) Initial contact reports do not include follow-up or investigative reports prepared after the initial contact report. However, if the information specified in Subsection (14)(a) appears in follow-up or investigative reports, it may only be treated confidentially if it is private, controlled, protected, or exempt from disclosure under Subsection [63-2-201] 63G-2-201(3)(b).
(15) "Legislative body" means the Legislature.
(16) "Notice of compliance" means a statement confirming that a governmental entity has complied with a records committee order.
(17) "Person" means:
(a) an individual;
(b) a nonprofit or profit corporation;
(c) a partnership;
(d) a sole proprietorship;
(e) other type of business organization; or
(f) any combination acting in concert with one another.
(18) "Private provider" means any person who contracts with a governmental entity to provide services directly to the public.
(19) "Private record" means a record containing data on individuals that is private as provided by Section [63-2-302] 63G-2-302.
(20) "Protected record" means a record that is classified protected as provided by Section [63-2-304] 63G-2-305.
(21) "Public record" means a record that is not private, controlled, or protected and that is not exempt from disclosure as provided in Subsection [63-2-201] 63G-2-201(3)(b).
(22) (a) "Record" means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics:
(i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.
(b) "Record" does not mean:
(i) a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee's or officer's private capacity;
(ii) a temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working;
(iii) material that is legally owned by an individual in the individual's private capacity;
(iv) material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision;
(v) proprietary software;
(vi) junk mail or a commercial publication received by a governmental entity or an official or employee of a governmental entity;
(vii) a book that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public;
(viii) material that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public, regardless of physical form or characteristics of the material;
(ix) a daily calendar or other personal note prepared by the originator for the originator's personal use or for the personal use of an individual for whom the originator is working;
(x) a computer program that is developed or purchased by or for any governmental entity for its own use;
(xi) a note or internal memorandum prepared as part of the deliberative process by:
(A) a member of the judiciary;
(B) an administrative law judge;
(C) a member of the Board of Pardons and Parole; or
(D) a member of any other body charged by law with performing a quasi-judicial function; or
(xii) a telephone number or similar code used to access a mobile communication device that is used by an employee or officer of a governmental entity, provided that the employee or officer of the governmental entity has designated at least one business telephone number that is a public record as provided in Section [63-2-301] 63G-2-301.
(23) "Record series" means a group of records that may be treated as a unit for purposes of designation, description, management, or disposition.
(24) "Records committee" means the State Records Committee created in Section [63-2-501] 63G-2-501.
(25) "Records officer" means the individual appointed by the chief administrative officer of each governmental entity, or the political subdivision to work with state archives in the care, maintenance, scheduling, designation, classification, disposal, and preservation of records.
(26) "Schedule," "scheduling," and their derivative forms mean the process of specifying the length of time each record series should be retained by a governmental entity for administrative, legal, fiscal, or historical purposes and when each record series should be transferred to the state archives or destroyed.
(27) "Sponsored research" means research, training, and other sponsored activities as defined by the federal Executive Office of the President, Office of Management and Budget:
(a) conducted:
(i) by an institution within the state system of higher education defined in Section 53B-1-102; and
(ii) through an office responsible for sponsored projects or programs; and
(b) funded or otherwise supported by an external:
(i) person that is not created or controlled by the institution within the state system of higher education; or
(ii) federal, state, or local governmental entity.
(28) "State archives" means the Division of Archives and Records Service created in Section [63-2-901] 63A-12-101.
(29) "State archivist" means the director of the state archives.
(30) "Summary data" means statistical records and compilations that contain data derived from private, controlled, or protected information but that do not disclose private, controlled, or protected information.
Section 1333. Section 63G-2-104, which is renumbered from Section 63-2-104 is renumbered and amended to read:
[63-2-104
]. 63G-2-104. Administrative Procedures Act not applicable.[Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, does not apply to this chapter except as provided in Section [63-2-603] 63G-2-603.
Section 1334. Section 63G-2-105, which is renumbered from Section 63-2-105 is renumbered and amended to read:
[63-2-105
]. 63G-2-105. Confidentiality agreements.If a governmental entity or political subdivision receives a request for a record that is subject to a confidentiality agreement executed before April 1, 1992, the law in effect at the time the agreement was executed, including late judicial interpretations of the law, shall govern access to the record, unless all parties to the confidentiality agreement agree in writing to be governed by the provisions of this chapter.
Section 1335. Section 63G-2-106, which is renumbered from Section 63-2-106 is renumbered and amended to read:
[63-2-106
]. 63G-2-106. Records of security measures.The records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to this chapter. These records include:
(1) security plans;
(2) security codes and combinations, and passwords;
(3) passes and keys;
(4) security procedures; and
(5) building and public works designs, to the extent that the records or information relate to the ongoing security measures of a public entity.
Section 1336. Section 63G-2-107, which is renumbered from Section 63-2-107 is renumbered and amended to read:
[63-2-107
]. 63G-2-107. Disclosure of records subject to federal law.Notwithstanding the provisions of Subsections [63-2-201] 63G-2-201(6)(a) and (b), this chapter does not apply to a record containing protected health information as defined in 45 C.F.R., Part 164, Standards for Privacy of Individually Identifiable Health Information, if the record is:
(1) controlled or maintained by a governmental entity; and
(2) governed by 45 C.F.R., Parts 160 and 164, Standards for Privacy of Individually Identifiable Health Information.
Section 1337. Section 63G-2-201, which is renumbered from Section 63-2-201 is renumbered and amended to read:
Part 2. Access to Records
[63-2-201]. 63G-2-201. Right to inspect records and receive copies of records.
(1) Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Sections [63-2-203] 63G-2-203 and [63-2-204] 63G-2-204.
(2) A record is public unless otherwise expressly provided by statute.
(3) The following records are not public:
(a) a record that is private, controlled, or protected under Sections [63-2-302] 63G-2-302, [63-2-302.5] 63G-2-303, [63-2-303] 63G-2-304, and [63-2-304] 63G-2-305; and
(b) a record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds.
(4) Only a record specified in Section [63-2-302] 63G-2-302, [63-2-302.5] 63G-2-303, [63-2-303] 63G-2-304, or [63-2-304] 63G-2-305 may be classified private, controlled, or protected.
(5) (a) A governmental entity may not disclose a record that is private, controlled, or protected to any person except as provided in Subsection (5)(b), Subsection (5)(c), Section [63-2-202] 63G-2-202, [63-2-206] 63G-2-206, or [63-2-302.5] 63G-2-303.
(b) A governmental entity may disclose a record that is private under Subsection [63-2-302] 63G-2-302(2) or protected under Section [63-2-304] 63G-2-305 to persons other than those specified in Section [63-2-202] 63G-2-202 or [63-2-206] 63G-2-206 if the head of a governmental entity, or a designee, determines that:
(i) there is no interest in restricting access to the record; or
(ii) the interests favoring access outweighs the interest favoring restriction of access.
(c) In addition to the disclosure under Subsection (5)(b), a governmental entity may disclose a record that is protected under Subsection [63-2-304] 63G-2-305(51) if:
(i) the head of the governmental entity, or a designee, determines that the disclosure:
(A) is mutually beneficial to:
(I) the subject of the record;
(II) the governmental entity; and
(III) the public; and
(B) serves a public purpose related to:
(I) public safety; or
(II) consumer protection; and
(ii) the person who receives the record from the governmental entity agrees not to use or allow the use of the record for advertising or solicitation purposes.
(6) (a) The disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, including a record for which access is governed or limited as a condition of participation in a state or federal program or for receiving state or federal funds, is governed by the specific provisions of that statute, rule, or regulation.
(b) This chapter applies to records described in Subsection (6)(a) insofar as this chapter is not inconsistent with the statute, rule, or regulation.
(7) A governmental entity shall provide a person with a certified copy of a record if:
(a) the person requesting the record has a right to inspect it;
(b) the person identifies the record with reasonable specificity; and
(c) the person pays the lawful fees.
(8) (a) In response to a request, a governmental entity is not required to:
(i) create a record;
(ii) compile, format, manipulate, package, summarize, or tailor information;
(iii) provide a record in a particular format, medium, or program not currently maintained by the governmental entity;
(iv) fulfill a person's records request if the request unreasonably duplicates prior records requests from that person; or
(v) fill a person's records request if:
(A) the record requested is accessible in the identical physical form and content in a public publication or product produced by the governmental entity receiving the request;
(B) the governmental entity provides the person requesting the record with the public publication or product; and
(C) the governmental entity specifies where the record can be found in the public publication or product.
(b) Upon request, a governmental entity may provide a record in a particular form under Subsection (8)(a)(ii) or (iii) if:
(i) the governmental entity determines it is able to do so without unreasonably interfering with the governmental entity's duties and responsibilities; and
(ii) the requester agrees to pay the governmental entity for providing the record in the requested form in accordance with Section [63-2-203] 63G-2-203.
(9) (a) A governmental entity may allow a person requesting more than 50 pages of records to copy the records if:
(i) the records are contained in files that do not contain records that are exempt from disclosure, or the records may be segregated to remove private, protected, or controlled information from disclosure; and
(ii) the governmental entity provides reasonable safeguards to protect the public from the potential for loss of a public record.
(b) When the requirements of Subsection (9)(a) are met, the governmental entity may:
(i) provide the requester with the facilities for copying the requested records and require that the requester make the copies; or
(ii) allow the requester to provide the requester's own copying facilities and personnel to make the copies at the governmental entity's offices and waive the fees for copying the records.
(10) (a) A governmental entity that owns an intellectual property right and that offers the intellectual property right for sale or license may control by ordinance or policy the duplication and distribution of the material based on terms the governmental entity considers to be in the public interest.
(b) Nothing in this chapter shall be construed to limit or impair the rights or protections granted to the governmental entity under federal copyright or patent law as a result of its ownership of the intellectual property right.
(11) A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under this chapter.
(12) A governmental entity may provide access to an electronic copy of a record in lieu of providing access to its paper equivalent.
Section 1338. Section 63G-2-202, which is renumbered from Section 63-2-202 is renumbered and amended to read:
[63-2-202
]. 63G-2-202. Access to private, controlled, and protected documents.(1) Upon request, a governmental entity shall disclose a private record to:
(a) the subject of the record;
(b) the parent or legal guardian of an unemancipated minor who is the subject of the record;
(c) the legal guardian of a legally incapacitated individual who is the subject of the record;
(d) any other individual who:
(i) has a power of attorney from the subject of the record;
(ii) submits a notarized release from the subject of the record or his legal representative dated no more than 90 days before the date the request is made; or
(iii) if the record is a medical record described in Subsection [63-2-302] 63G-2-302(1)(b), is a health care provider, as defined in Section 26-33a-102, if releasing the record or information in the record is consistent with normal professional practice and medical ethics; or
(e) any person to whom the record must be provided pursuant to:
(i) court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14.
(2) (a) Upon request, a governmental entity shall disclose a controlled record to:
(i) a physician, psychologist, certified social worker, insurance provider or producer, or a government public health agency upon submission of:
(A) a release from the subject of the record that is dated no more than 90 days prior to the date the request is made; and
(B) a signed acknowledgment of the terms of disclosure of controlled information as provided by Subsection (2)(b); and
(ii) any person to whom the record must be disclosed pursuant to:
(A) a court order as provided in Subsection (7); or
(B) a legislative subpoena as provided in Title 36, Chapter 14.
(b) A person who receives a record from a governmental entity in accordance with Subsection (2)(a)(i) may not disclose controlled information from that record to any person, including the subject of the record.
(3) If there is more than one subject of a private or controlled record, the portion of the record that pertains to another subject shall be segregated from the portion that the requester is entitled to inspect.
(4) Upon request, a governmental entity shall disclose a protected record to:
(a) the person who submitted the record;
(b) any other individual who:
(i) has a power of attorney from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification; or
(ii) submits a notarized release from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification or from their legal representatives dated no more than 90 days prior to the date the request is made;
(c) any person to whom the record must be provided pursuant to:
(i) a court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14; or
(d) the owner of a mobile home park, subject to the conditions of Subsection 41-1a-116(5).
(5) A governmental entity may disclose a private, controlled, or protected record to another governmental entity, political subdivision, another state, the United States, or a foreign government only as provided by Section [63-2-206] 63G-2-206.
(6) Before releasing a private, controlled, or protected record, the governmental entity shall obtain evidence of the requester's identity.
(7) A governmental entity shall disclose a record pursuant to the terms of a court order signed by a judge from a court of competent jurisdiction, provided that:
(a) the record deals with a matter in controversy over which the court has jurisdiction;
(b) the court has considered the merits of the request for access to the record; and
(c) the court has considered and, where appropriate, limited the requester's use and further disclosure of the record in order to protect:
(i) privacy interests in the case of private or controlled records;
(ii) business confidentiality interests in the case of records protected under Subsection [63-2-304] 63G-2-305(1), (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records;
(d) to the extent the record is properly classified private, controlled, or protected, the interests favoring access, considering limitations thereon, outweigh the interests favoring restriction of access; and
(e) where access is restricted by a rule, statute, or regulation referred to in Subsection [63-2-201] 63G-2-201(3)(b), the court has authority independent of this chapter to order disclosure.
(8) (a) A governmental entity may disclose or authorize disclosure of private or controlled records for research purposes if the governmental entity:
(i) determines that the research purpose cannot reasonably be accomplished without use or disclosure of the information to the researcher in individually identifiable form;
(ii) determines that:
(A) the proposed research is bona fide; and
(B) the value of the research outweighs the infringement upon personal privacy;
(iii) (A) requires the researcher to assure the integrity, confidentiality, and security of the records; and
(B) requires the removal or destruction of the individual identifiers associated with the records as soon as the purpose of the research project has been accomplished;
(iv) prohibits the researcher from:
(A) disclosing the record in individually identifiable form, except as provided in Subsection (8)(b); or
(B) using the record for purposes other than the research approved by the governmental entity; and
(v) secures from the researcher a written statement of the researcher's understanding of and agreement to the conditions of this Subsection (8) and the researcher's understanding that violation of the terms of this Subsection (8) may subject the researcher to criminal prosecution under Section [63-2-801] 63G-2-801.
(b) A researcher may disclose a record in individually identifiable form if the record is disclosed for the purpose of auditing or evaluating the research program and no subsequent use or disclosure of the record in individually identifiable form will be made by the auditor or evaluator except as provided by this section.
(c) A governmental entity may require indemnification as a condition of permitting research under this Subsection (8).
(9) (a) Under Subsections [63-2-201] 63G-2-201(5)(b) and [63-2-401] 63G-2-401(6), a governmental entity may disclose to persons other than those specified in this section records that are:
(i) private under Section [63-2-302] 63G-2-302; or
(ii) protected under Section [63-2-304] 63G-2-305 subject to Section [63-2-308] 63G-2-309 if a claim for business confidentiality has been made under Section [63-2-308] 63G-2-309.
(b) Under Subsection [63-2-403] 63G-2-403(11)(b), the records committee may require the disclosure to persons other than those specified in this section of records that are:
(i) private under Section [63-2-302] 63G-2-302;
(ii) controlled under Section [63-2-303] 63G-2-304; or
(iii) protected under Section [63-2-304] 63G-2-305 subject to Section [63-2-308] 63G-2-309 if a claim for business confidentiality has been made under Section [63-2-308] 63G-2-309.
(c) Under Subsection [63-2-404] 63G-2-404(8), the court may require the disclosure of records that are private under Section [63-2-302] 63G-2-302, controlled under Section [63-2-303] 63G-2-304, or protected under Section [63-2-304] 63G-2-305 to persons other than those specified in this section.
Section 1339. Section 63G-2-203, which is renumbered from Section 63-2-203 is renumbered and amended to read:
[63-2-203
]. 63G-2-203. Fees.(1) A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record. This fee shall be approved by the governmental entity's executive officer.
(2) (a) When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs under this section may include the following:
(i) the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person's request;
(ii) the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request; and
(iii) in the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users, and the administrative costs as set forth in Subsections (2)(a)(i) and (ii).
(b) An hourly charge under Subsection (2)(a) may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request.
(c) Notwithstanding Subsections (2)(a) and (b), no charge may be made for the first quarter hour of staff time.
(3) (a) Fees shall be established as provided in this Subsection (3).
(b) A governmental entity with fees established by the Legislature:
(i) shall establish the fees defined in Subsection (2), or other actual costs associated with this section through the budget process; and
(ii) may use the procedures of Section [63-38-3.2] 63J-1-303 to set fees until the Legislature establishes fees through the budget process.
(c) Political subdivisions shall establish fees by ordinance or written formal policy adopted by the governing body.
(d) The judiciary shall establish fees by rules of the judicial council.
(4) A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that:
(a) releasing the record primarily benefits the public rather than a person;
(b) the individual requesting the record is the subject of the record, or an individual specified in Subsection [63-2-202] 63G-2-202(1) or (2); or
(c) the requester's legal rights are directly implicated by the information in the record, and the requester is impecunious.
(5) A governmental entity may not charge a fee for:
(a) reviewing a record to determine whether it is subject to disclosure, except as permitted by Subsection (2)(a)(ii); or
(b) inspecting a record.
(6) (a) A person who believes that there has been an unreasonable denial of a fee waiver under Subsection (4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Section [63-2-205] 63G-2-205.
(b) The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied.
(7) (a) All fees received under this section by a governmental entity subject to Subsection (3)(b) shall be retained by the governmental entity as a dedicated credit.
(b) Those funds shall be used to recover the actual cost and expenses incurred by the governmental entity in providing the requested record or record series.
(8) (a) A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if:
(i) fees are expected to exceed $50; or
(ii) the requester has not paid fees from previous requests.
(b) Any prepaid amount in excess of fees due shall be returned to the requester.
(9) This section does not alter, repeal, or reduce fees established by other statutes or legislative acts.
(10) (a) Notwithstanding Subsection (3)(c), fees for voter registration records shall be set as provided in this Subsection (10).
(b) The lieutenant governor shall:
(i) after consultation with county clerks, establish uniform fees for voter registration and voter history records that meet the requirements of this section; and
(ii) obtain legislative approval of those fees by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
Section 1340. Section 63G-2-204, which is renumbered from Section 63-2-204 is renumbered and amended to read:
[63-2-204
]. 63G-2-204. Requests -- Time limit for response and extraordinary circumstances.(1) A person making a request for a record shall furnish the governmental entity with a written request containing:
(a) the person's name, mailing address, and daytime telephone number, if available; and
(b) a description of the record requested that identifies the record with reasonable specificity.
(2) (a) Subject to Subsection (2)(b), a person making a request for a record shall submit the request to the governmental entity that prepares, owns, or retains the record.
(b) In response to a request for a record, a governmental entity may not provide a record that it has received under Section [63-2-206] 63G-2-206 as a shared record if the record was shared for the purpose of auditing, if the governmental entity is authorized by state statute to conduct an audit.
(c) If a governmental entity is prohibited from providing a record under Subsection (2)(b), it shall:
(i) deny the records request; and
(ii) inform the person making the request that records requests must be submitted to the governmental entity that prepares, owns, or retains the record.
(d) A governmental entity may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, specifying where and to whom requests for access shall be directed.
(3) (a) As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond to the request by:
(i) approving the request and providing the record;
(ii) denying the request;
(iii) notifying the requester that it does not maintain the record and providing, if known, the name and address of the governmental entity that does maintain the record; or
(iv) notifying the requester that because of one of the extraordinary circumstances listed in Subsection (4), it cannot immediately approve or deny the request.
(b) The notice described in Subsection (3)(a)(iv) shall:
(i) describe the circumstances relied upon; and
(ii) specify the date when the records will be available.
(c) Any person who requests a record to obtain information for a story or report for publication or broadcast to the general public is presumed to be acting to benefit the public rather than a person.
(4) The following circumstances constitute "extraordinary circumstances" that allow a governmental entity to delay approval or denial by an additional period of time as specified in Subsection (5) if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided in Subsection (3):
(a) another governmental entity is using the record, in which case the originating governmental entity shall promptly request that the governmental entity currently in possession return the record;
(b) another governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit;
(c) (i) the request is for a voluminous quantity of records or a record series containing a substantial number of records;
(ii) the requester seeks a substantial number of records or records series in requests filed within five working days of each other;
(d) the governmental entity is currently processing a large number of records requests;
(e) the request requires the governmental entity to review a large number of records to locate the records requested;
(f) the decision to release a record involves legal issues that require the governmental entity to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law;
(g) segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires extensive editing; or
(h) segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires computer programming.
(5) If one of the extraordinary circumstances listed in Subsection (4) precludes approval or denial within the time specified in Subsection (3), the following time limits apply to the extraordinary circumstances:
(a) for claims under Subsection (4)(a), the governmental entity currently in possession of the record shall return the record to the originating entity within five business days of the request for the return unless returning the record would impair the holder's work;
(b) for claims under Subsection (4)(b), the originating governmental entity shall notify the requester when the record is available for inspection and copying;
(c) for claims under Subsections (4)(c), (d), and (e), the governmental entity shall:
(i) disclose the records that it has located which the requester is entitled to inspect;
(ii) provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request;
(iii) complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible; and
(iv) for any person that does not establish a right to an expedited response as authorized by Subsection (3)(a), a governmental entity may choose to:
(A) require the person to provide for copying of the records as provided in Subsection [63-2-201] 63G-2-201(9); or
(B) treat a request for multiple records as separate record requests, and respond sequentially to each request;
(d) for claims under Subsection (4)(f), the governmental entity shall either approve or deny the request within five business days after the response time specified for the original request has expired;
(e) for claims under Subsection (4)(g), the governmental entity shall fulfill the request within 15 business days from the date of the original request; or
(f) for claims under Subsection (4)(h), the governmental entity shall complete its programming and disclose the requested records as soon as reasonably possible.
(6) (a) If a request for access is submitted to an office of a governmental entity other than that specified by rule in accordance with Subsection (2), the office shall promptly forward the request to the appropriate office.
(b) If the request is forwarded promptly, the time limit for response begins when the record is received by the office specified by rule.
(7) If the governmental entity fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the record.
Section 1341. Section 63G-2-205, which is renumbered from Section 63-2-205 is renumbered and amended to read:
[63-2-205
]. 63G-2-205. Denials.(1) If the governmental entity denies the request in whole or part, it shall provide a notice of denial to the requester either in person or by sending the notice to the requester's address.
(2) The notice of denial shall contain the following information:
(a) a description of the record or portions of the record to which access was denied, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure under Subsection [63-2-201] 63G-2-201(3)(b);
(b) citations to the provisions of this chapter, court rule or order, another state statute, federal statute, or federal regulation that exempt the record or portions of the record from disclosure, provided that the citations do not disclose private, controlled, or protected information or information exempt from disclosure under Subsection [63-2-201] 63G-2-201(3)(b);
(c) a statement that the requester has the right to appeal the denial to the chief administrative officer of the governmental entity; and
(d) the time limits for filing an appeal, and the name and business address of the chief administrative officer of the governmental entity.
(3) Unless otherwise required by a court or agency of competent jurisdiction, a governmental entity may not destroy or give up custody of any record to which access was denied until the period for an appeal has expired or the end of the appeals process, including judicial appeal.
Section 1342. Section 63G-2-206, which is renumbered from Section 63-2-206 is renumbered and amended to read:
[63-2-206
]. 63G-2-206. Sharing records.(1) A governmental entity may provide a record that is private, controlled, or protected to another governmental entity, a government-managed corporation, a political subdivision, the federal government, or another state if the requesting entity:
(a) serves as a repository or archives for purposes of historical preservation, administrative maintenance, or destruction;
(b) enforces, litigates, or investigates civil, criminal, or administrative law, and the record is necessary to a proceeding or investigation;
(c) is authorized by state statute to conduct an audit and the record is needed for that purpose; or
(d) is one that collects information for presentence, probationary, or parole purposes.
(2) (a) A governmental entity may provide a private, controlled, or protected record or record series to another governmental entity, a political subdivision, a government-managed corporation, the federal government, or another state if the requesting entity provides written assurance:
(i) that the record or record series is necessary to the performance of the governmental entity's duties and functions;
(ii) that the record or record series will be used for a purpose similar to the purpose for which the information in the record or record series was collected or obtained; and
(iii) that the use of the record or record series produces a public benefit that outweighs the individual privacy right that protects the record or record series.
(b) A governmental entity may provide a private, controlled, or protected record or record series to a contractor or a private provider according to the requirements of Subsection (6)(b).
(3) (a) A governmental entity shall provide a private, controlled, or protected record to another governmental entity, a political subdivision, a government-managed corporation, the federal government, or another state if the requesting entity:
(i) is entitled by law to inspect the record;
(ii) is required to inspect the record as a condition of participating in a state or federal program or for receiving state or federal funds; or
(iii) is an entity described in Subsection (1)(a), (b), (c), or (d).
(b) Subsection (3)(a)(iii) applies only if the record is a record described in Subsection [63-2-304] 63G-2-305(4).
(4) Before disclosing a record or record series under this section to another governmental entity, another state, the United States, a foreign government, or to a contractor or private provider, the originating governmental entity shall:
(a) inform the recipient of the record's classification and the accompanying restrictions on access; and
(b) if the recipient is not a governmental entity to which this chapter applies, obtain the recipient's written agreement which may be by mechanical or electronic transmission that it will abide by those restrictions on access unless a statute, federal regulation, or interstate agreement otherwise governs the sharing of the record or record series.
(5) A governmental entity may disclose a record to another state, the United States, or a foreign government for the reasons listed in Subsections (1) and (2) without complying with the procedures of Subsection (2) or (4) if disclosure is authorized by executive agreement, treaty, federal statute, compact, federal regulation, or state statute.
(6) (a) Subject to Subsections (6)(b) and (c), an entity receiving a record under this section is subject to the same restrictions on disclosure of the record as the originating entity.
(b) A contractor or a private provider may receive information under this section only if:
(i) the contractor or private provider's use of the record or record series produces a public benefit that outweighs the individual privacy right that protects the record or record series;
(ii) the record or record series it requests:
(A) is necessary for the performance of a contract with a governmental entity;
(B) will only be used for the performance of the contract with the governmental entity;
(C) will not be disclosed to any other person; and
(D) will not be used for advertising or solicitation purposes; and
(iii) the contractor or private provider gives written assurance to the governmental entity that is providing the record or record series that it will adhere to the restrictions of this Subsection (6)(b).
(c) The classification of a record already held by a governmental entity and the applicable restrictions on disclosure of that record are not affected by the governmental entity's receipt under this section of a record with a different classification that contains information that is also included in the previously held record.
(7) Notwithstanding any other provision of this section, if a more specific court rule or order, state statute, federal statute, or federal regulation prohibits or requires sharing information, that rule, order, statute, or federal regulation controls.
(8) The following records may not be shared under this section:
(a) records held by the Division of Oil, Gas and Mining that pertain to any person and that are gathered under authority of Title 40, Chapter 6, Board and Division of Oil, Gas and Mining; and
(b) records of publicly funded libraries as described in Subsection [63-2-302] 63G-2-302(1)(c).
(9) Records that may evidence or relate to a violation of law may be disclosed to a government prosecutor, peace officer, or auditor.
Section 1343. Section 63G-2-207, which is renumbered from Section 63-2-207 is renumbered and amended to read:
[63-2-207
]. 63G-2-207. Subpoenas -- Court ordered disclosure for discovery.(1) Subpoenas and other methods of discovery under the state or federal statutes or rules of civil, criminal, administrative, or legislative procedure are not written requests under Section [63-2-204] 63G-2-204.
(2) (a) (i) Except as otherwise provided in Subsection (2)(c), in judicial or administrative proceedings in which an individual is requesting discovery of records classified private, controlled, or protected under this chapter, or otherwise restricted from access by other statutes, the court, or an administrative law judge shall follow the procedure in Subsection [63-2-202] 63G-2-202(7) before ordering disclosure.
(ii) Until the court or an administrative law judge orders disclosure, these records are privileged from discovery.
(b) If, the court or administrative order requires disclosure, the terms of the order may limit the requester's further use and disclosure of the record in accordance with Subsection [63-2-202] 63G-2-202(7), in order to protect the privacy interests recognized in this chapter.
(c) Unless a court or administrative law judge imposes limitations in a restrictive order, this section does not limit the right to obtain:
(i) records through the procedures set forth in this chapter; or
(ii) medical records discoverable under state or federal court rules as authorized by Subsection [63-2-302] 63G-2-302(3).
Section 1344. Section 63G-2-301, which is renumbered from Section 63-2-301 is renumbered and amended to read:
Part 3. Classification
[63-2-301]. 63G-2-301. Records that must be disclosed.
(1) As used in this section:
(a) "Business address" means a single address of a governmental agency designated for the public to contact an employee or officer of the governmental agency.
(b) "Business email address" means a single email address of a governmental agency designated for the public to contact an employee or officer of the governmental agency.
(c) "Business telephone number" means a single telephone number of a governmental agency designated for the public to contact an employee or officer of the governmental agency.
(2) The following records are public except to the extent they contain information expressly permitted to be treated confidentially under the provisions of Subsections [63-2-201] 63G-2-201(3)(b) and (6)(a):
(a) laws;
(b) the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity, excluding:
(i) undercover law enforcement personnel; and
(ii) investigative personnel if disclosure could reasonably be expected to impair the effectiveness of investigations or endanger any individual's safety;
(c) final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding except that if the proceedings were properly closed to the public, the opinion and order may be withheld to the extent that they contain information that is private, controlled, or protected;
(d) final interpretations of statutes or rules by a governmental entity unless classified as protected as provided in Subsections [63-2-304] 63G-2-305(16), (17), and (18);
(e) information contained in or compiled from a transcript, minutes, or report of the open portions of a meeting of a governmental entity as provided by Title 52, Chapter 4, Open and Public Meetings Act, including the records of all votes of each member of the governmental entity;
(f) judicial records unless a court orders the records to be restricted under the rules of civil or criminal procedure or unless the records are private under this chapter;
(g) unless otherwise classified as private under Section [63-2-302.5] 63G-2-303, records or parts of records filed with or maintained by county recorders, clerks, treasurers, surveyors, zoning commissions, the Division of Forestry, Fire and State Lands, the School and Institutional Trust Lands Administration, the Division of Oil, Gas and Mining, the Division of Water Rights, or other governmental entities that give public notice of:
(i) titles or encumbrances to real property;
(ii) restrictions on the use of real property;
(iii) the capacity of persons to take or convey title to real property; or
(iv) tax status for real and personal property;
(h) records of the Department of Commerce that evidence incorporations, mergers, name changes, and uniform commercial code filings;
(i) data on individuals that would otherwise be private under this chapter if the individual who is the subject of the record has given the governmental entity written permission to make the records available to the public;
(j) documentation of the compensation that a governmental entity pays to a contractor or private provider;
(k) summary data; and
(l) voter registration records, including an individual's voting history, except for those parts of the record that are classified as private in Subsection [63-2-302] 63G-2-302(1)(i).
(3) The following records are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under Subsection [63-2-201] 63G-2-201(3)(b), Section [63-2-302] 63G-2-302, [63-2-303] 63G-2-304, or [63-2-304] 63G-2-305:
(a) administrative staff manuals, instructions to staff, and statements of policy;
(b) records documenting a contractor's or private provider's compliance with the terms of a contract with a governmental entity;
(c) records documenting the services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity;
(d) contracts entered into by a governmental entity;
(e) any account, voucher, or contract that deals with the receipt or expenditure of funds by a governmental entity;
(f) records relating to government assistance or incentives publicly disclosed, contracted for, or given by a governmental entity, encouraging a person to expand or relocate a business in Utah, except as provided in Subsection [63-2-304] 63G-2-305(35);
(g) chronological logs and initial contact reports;
(h) correspondence by and with a governmental entity in which the governmental entity determines or states an opinion upon the rights of the state, a political subdivision, the public, or any person;
(i) empirical data contained in drafts if:
(i) the empirical data is not reasonably available to the requester elsewhere in similar form; and
(ii) the governmental entity is given a reasonable opportunity to correct any errors or make nonsubstantive changes before release;
(j) drafts that are circulated to anyone other than:
(i) a governmental entity;
(ii) a political subdivision;
(iii) a federal agency if the governmental entity and the federal agency are jointly responsible for implementation of a program or project that has been legislatively approved;
(iv) a government-managed corporation; or
(v) a contractor or private provider;
(k) drafts that have never been finalized but were relied upon by the governmental entity in carrying out action or policy;
(l) original data in a computer program if the governmental entity chooses not to disclose the program;
(m) arrest warrants after issuance, except that, for good cause, a court may order restricted access to arrest warrants prior to service;
(n) search warrants after execution and filing of the return, except that a court, for good cause, may order restricted access to search warrants prior to trial;
(o) records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if:
(i) the disciplinary action has been completed and all time periods for administrative appeal have expired; and
(ii) the charges on which the disciplinary action was based were sustained;
(p) records maintained by the Division of Forestry, Fire and State Lands, the School and Institutional Trust Lands Administration, or the Division of Oil, Gas and Mining that evidence mineral production on government lands;
(q) final audit reports;
(r) occupational and professional licenses;
(s) business licenses; and
(t) a notice of violation, a notice of agency action under Section [63-46b-3] 63G-4-201, or similar records used to initiate proceedings for discipline or sanctions against persons regulated by a governmental entity, but not including records that initiate employee discipline.
(4) The list of public records in this section is not exhaustive and should not be used to limit access to records.
Section 1345. Section 63G-2-302, which is renumbered from Section 63-2-302 is renumbered and amended to read:
[63-2-302
]. 63G-2-302. Private records.(1) The following records are private:
(a) records concerning an individual's eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels;
(b) records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data;
(c) records of publicly funded libraries that when examined alone or with other records identify a patron;
(d) records received or generated for a Senate or House Ethics Committee concerning any alleged violation of the rules on legislative ethics, prior to the meeting, and after the meeting, if the ethics committee meeting was closed to the public;
(e) records received or generated for a Senate confirmation committee concerning character, professional competence, or physical or mental health of an individual:
(i) if prior to the meeting, the chair of the committee determines release of the records:
(A) reasonably could be expected to interfere with the investigation undertaken by the committee; or
(B) would create a danger of depriving a person of a right to a fair proceeding or impartial hearing; and
(ii) after the meeting, if the meeting was closed to the public;
(f) employment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose that individual's home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions;
(g) records or parts of records under Section [63-2-302.5] 63G-2-303 that a current or former employee identifies as private according to the requirements of that section;
(h) that part of a record indicating a person's Social Security number or federal employer identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202, 58-1-301, 61-1-4, or 61-2-6;
(i) that part of a voter registration record identifying a voter's driver license or identification card number, Social Security number, or last four digits of the Social Security number;
(j) a record that:
(i) contains information about an individual;
(ii) is voluntarily provided by the individual; and
(iii) goes into an electronic database that:
(A) is designated by and administered under the authority of the Chief Information Officer; and
(B) acts as a repository of information about the individual that can be electronically retrieved and used to facilitate the individual's online interaction with a state agency;
(k) information provided to the Commissioner of Insurance under:
(i) Subsection 31A-23a-115(2)(a); or
(ii) Subsection 31A-23a-302(3); and
(l) information obtained through a criminal background check under Title 11, Chapter 40, Criminal Background Checks by Political Subdivisions Operating Water Systems.
(2) The following records are private if properly classified by a governmental entity:
(a) records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Subsection [63-2-301] 63G-2-301(2)(b) or [63-2-301] 63G-2-301(3)(o), or private under Subsection (1)(b);
(b) records describing an individual's finances, except that the following are public:
(i) records described in Subsection [63-2-301] 63G-2-301(2);
(ii) information provided to the governmental entity for the purpose of complying with a financial assurance requirement; or
(iii) records that must be disclosed in accordance with another statute;
(c) records of independent state agencies if the disclosure of those records would conflict with the fiduciary obligations of the agency;
(d) other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy; and
(e) records provided by the United States or by a government entity outside the state that are given with the requirement that the records be managed as private records, if the providing entity states in writing that the record would not be subject to public disclosure if retained by it.
(3) (a) As used in this Subsection (3), "medical records" means medical reports, records, statements, history, diagnosis, condition, treatment, and evaluation.
(b) Medical records in the possession of the University of Utah Hospital, its clinics, doctors, or affiliated entities are not private records or controlled records under Section [63-2-303] 63G-2-304 when the records are sought:
(i) in connection with any legal or administrative proceeding in which the patient's physical, mental, or emotional condition is an element of any claim or defense; or
(ii) after a patient's death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.
(c) Medical records are subject to production in a legal or administrative proceeding according to state or federal statutes or rules of procedure and evidence as if the medical records were in the possession of a nongovernmental medical care provider.
Section 1346. Section 63G-2-303, which is renumbered from Section 63-2-302.5 is renumbered and amended to read:
[63-2-302.5
]. 63G-2-303. Private information concerning certain government employees.(1) As used in this section:
(a) "At-risk government employee" means a current or former:
(i) peace officer as specified in Section 53-13-102;
(ii) supreme court justice;
(iii) judge of an appellate, district, or juvenile court;
(iv) justice court judge;
(v) judge authorized by Title 39, Chapter 6, Utah Code of Military Justice;
(vi) federal judge;
(vii) federal magistrate judge;
(viii) judge authorized by Armed Forces, Title 10, United States Code;
(ix) United States Attorney;
(x) Assistant United States Attorney;
(xi) a prosecutor appointed pursuant to Armed Forces, Title 10, United States Code;
(xii) a law enforcement official as defined in Section 53-5-711; or
(xiii) a prosecutor authorized by Title 39, Chapter 6, Utah Code of Military Justice.
(b) "Family member" means the spouse, child, sibling, parent, or grandparent of an at-risk government employee who is living with the employee.
(2) (a) Pursuant to Subsection [63-2-302] 63G-2-302(1)(g), an at-risk government employee may file a written application that:
(i) gives notice of the employee's status to each agency of a government entity holding a record or a part of a record that would disclose the employee's or the employee's family member's home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions; and
(ii) requests that the government agency classify those records or parts of records private.
(b) An at-risk government employee desiring to file an application under this section may request assistance from the government agency to identify the individual records containing the private information specified in Subsection (2)(a)(i).
(c) Each government agency shall develop a form that:
(i) requires the at-risk government employee to provide evidence of qualifying employment;
(ii) requires the at-risk government employee to designate each specific record or part of a record containing the employee's home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions that the applicant desires to be classified as private; and
(iii) affirmatively requests that the government entity holding those records classify them as private.
(3) A county recorder, county treasurer, county auditor, or a county tax assessor may fully satisfy the requirements of this section by:
(a) providing a method for the assessment roll and index and the tax roll and index that will block public access to the home address, home telephone number, situs address, and Social Security number; and
(b) providing the at-risk government employee requesting the classification with a disclaimer informing the employee that the employee may not receive official announcements affecting the employee's property, including notices about proposed annexations, incorporations, or zoning modifications.
(4) A government agency holding records of an at-risk government employee classified as private under this section may release the record or part of the record if:
(a) the employee or former employee gives written consent;
(b) a court orders release of the records; or
(c) the government agency receives a certified death certificate for the employee or former employee.
(5) (a) If the government agency holding the private record receives a subpoena for the records, the government agency shall attempt to notify the at-risk government employee or former employee by mailing a copy of the subpoena to the employee's last-known mailing address together with a request that the employee either:
(i) authorize release of the record; or
(ii) within ten days of the date that the copy and request are mailed, deliver to the government agency holding the private record a copy of a motion to quash filed with the court who issued the subpoena.
(b) The government agency shall comply with the subpoena if the government agency has:
(i) received permission from the at-risk government employee or former employee to comply with the subpoena;
(ii) has not received a copy of a motion to quash within ten days of the date that the copy of the subpoena was mailed; or
(iii) receives a court order requiring release of the records.
Section 1347. Section 63G-2-304, which is renumbered from Section 63-2-303 is renumbered and amended to read:
[63-2-303
]. 63G-2-304. Controlled records.A record is controlled if:
(1) the record contains medical, psychiatric, or psychological data about an individual;
(2) the governmental entity reasonably believes that:
(a) releasing the information in the record to the subject of the record would be detrimental to the subject's mental health or to the safety of any individual; or
(b) releasing the information would constitute a violation of normal professional practice and medical ethics; and
(3) the governmental entity has properly classified the record.
Section 1348. Section 63G-2-305, which is renumbered from Section 63-2-304 is renumbered and amended to read:
[63-2-304
]. 63G-2-305. Protected records.The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has provided the governmental entity with the information specified in Section [63-2-308] 63G-2-309;
(2) commercial information or nonindividual financial information obtained from a person if:
(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the information specified in Section [63-2-308] 63G-2-309;
(3) commercial or financial information acquired or prepared by a governmental entity to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned transaction by the governmental entity or cause substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity as defined in Subsection 11-13-103(4);
(5) test questions and answers to be used in future license, certification, registration, employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity, except that this Subsection (6) does not restrict the right of a person to see bids submitted to or by a governmental entity after bidding has closed;
(7) records that would identify real property or the appraisal or estimated value of real or personal property, including intellectual property, under consideration for public acquisition before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described property have already learned of the governmental entity's plans to acquire the property;
(d) in the case of records that would identify the appraisal or estimated value of property, the potential sellers have already learned of the governmental entity's estimated value of the property; or
(e) the property under consideration for public acquisition is a single family residence and the governmental entity seeking to acquire the property has initiated negotiations to acquire the property as required under Section 78-34-4.5;
(8) records prepared in contemplation of sale, exchange, lease, rental, or other compensated transaction of real or personal property including intellectual property, which, if disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of the subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including the governmental entity's interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the value of the subject property have already been disclosed to persons not employed by or under a duty of confidentiality to the entity;
(9) records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender's incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board of Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board of Pardons and Parole, or the Department of Human Services that are based on the employee's or contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
(14) records and audit workpapers that identify audit, collection, and operational procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released;
(16) records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery;
(17) records disclosing an attorney's work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation;
(18) records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity if the communications would be privileged as provided in Section 78-24-8;
(19) (a) (i) personal files of a state legislator, including personal correspondence to or from a member of the Legislature; and
(ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of legislative action or policy may not be classified as protected under this section; and
(b) (i) an internal communication that is part of the deliberative process in connection with the preparation of legislation between:
(A) members of a legislative body;
(B) a member of a legislative body and a member of the legislative body's staff; or
(C) members of a legislative body's staff; and
(ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of legislative action or policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and General Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation or contemplated course of action before the legislator has elected to support the legislation or course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the Office of Legislative Research and General Counsel is a public document unless a legislator asks that the records requesting the legislation be maintained as protected records until such time as the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in response to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about collective bargaining or pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured Employers' Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biological resources that if known would jeopardize the security of those resources or of valuable historic, scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflict with the fiduciary obligations of the agency;
(28) records of an institution within the state system of higher education defined in Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions, retention decisions, and promotions, which could be properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of the final decisions about tenure, appointments, retention, promotions, or those students admitted, may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislative proposals, and policy statements, that if disclosed would reveal the governor's contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state that are given to the governmental entity with a requirement that they be managed as protected records if the providing entity certifies that the record would not be subject to public disclosure if retained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body except as provided in Section 52-4-206;
(33) records that would reveal the contents of settlement negotiations but not including final settlements or empirical data to the extent that they are not otherwise exempt from disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an administrative law judge, a member of the Board of Pardons and Parole, or a member of any other body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining the governmental entity's proprietary protection of intellectual property rights including patents, copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including an institution within the state system of higher education defined in Section 53B-1-102, and other information concerning the donation that could reasonably be expected to reveal the identity of the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be classified protected by the governmental entity under this Subsection (37); and
(c) except for an institution within the state system of higher education defined in Section 53B-1-102, the governmental unit to which the donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor, a member of the donor's immediate family, or any entity owned or controlled by the donor or the donor's immediate family;
(38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and 73-18-13;
(39) a notification of workers' compensation insurance coverage described in Section 34A-2-205;
(40) (a) the following records of an institution within the state system of higher education defined in Section 53B-1-102, which have been developed, discovered, disclosed to, or received by or on behalf of faculty, staff, employees, or students of the institution:
(i) unpublished lecture notes;
(ii) unpublished notes, data, and information:
(A) relating to research; and
(B) of:
(I) the institution within the state system of higher education defined in Section 53B-1-102; or
(II) a sponsor of sponsored research;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals;
(b) Subsection (40)(a) may not be construed to prohibit disclosure of public information required pursuant to Subsection 53B-16-302(2)(a) or (b); and
(c) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General that would reveal the name of a particular legislator who requests a legislative audit prior to the date that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the Office of the Legislative Auditor General is a public document unless the legislator asks that the records in the custody or control of the Office of Legislative Auditor General that would reveal the name of a particular legislator who requests a legislative audit be maintained as protected records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information contained in the database described in Section 62A-3-311.1;
(44) information contained in the Management Information System and Licensing Information System described in Title 62A, Chapter 4a, Child and Family Services;
(45) information regarding National Guard operations or activities in support of the National Guard's federal mission;
(46) records provided by any pawn or secondhand business to a law enforcement agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and Secondhand Merchandise Transaction Information Act;
(47) information regarding food security, risk, and vulnerability assessments performed by the Department of Agriculture and Food;
(48) except to the extent that the record is exempt from this chapter pursuant to Section [63-2-106] 63G-2-106, records related to an emergency plan or program prepared or maintained by the Division of Homeland Security the disclosure of which would jeopardize:
(a) the safety of the general public; or
(b) the security of:
(i) governmental property;
(ii) governmental programs; or
(iii) the property of a private person who provides the Division of Homeland Security information;
(49) records of the Department of Agriculture and Food relating to the National Animal Identification System or any other program that provides for the identification, tracing, or control of livestock diseases, including any program established under Title 4, Chapter 24, Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and Quarantine;
(50) as provided in Section 26-39-109:
(a) information or records held by the Department of Health related to a complaint regarding a child care program or residential child care which the department is unable to substantiate; and
(b) information or records related to a complaint received by the Department of Health from an anonymous complainant regarding a child care program or residential child care; and
(51) unless otherwise classified as public under Section [63-2-301] 63G-2-301 and except as provided under Section 41-1a-116, an individual's home address, home telephone number, or personal mobile phone number, if:
(a) the individual is required to provide the information in order to comply with a law, ordinance, rule, or order of a government entity; and
(b) the subject of the record has a reasonable expectation that this information will be kept confidential due to:
(i) the nature of the law, ordinance, rule, or order; and
(ii) the individual complying with the law, ordinance, rule, or order.
Section 1349. Section 63G-2-306, which is renumbered from Section 63-2-305 is renumbered and amended to read:
[63-2-305
]. 63G-2-306. Procedure to determine classification.(1) If more than one provision of this chapter could govern the classification of a record, the governmental entity shall classify the record by considering the nature of the interests intended to be protected and the specificity of the competing provisions.
(2) Nothing in Subsection [63-2-302] 63G-2-302(2), Section [63-2-303] 63G-2-304, or [63-2-304] 63G-2-305 requires a governmental entity to classify a record as private, controlled, or protected.
Section 1350. Section 63G-2-307, which is renumbered from Section 63-2-306 is renumbered and amended to read:
[63-2-306
]. 63G-2-307. Duty to evaluate records and make designations and classifications.(1) A governmental entity shall:
(a) evaluate all record series that it uses or creates;
(b) designate those record series as provided by this chapter; and
(c) report the designations of its record series to the state archives.
(2) A governmental entity may classify a particular record, record series, or information within a record at any time, but is not required to classify a particular record, record series, or information until access to the record is requested.
(3) A governmental entity may redesignate a record series or reclassify a record or record series, or information within a record at any time.
Section 1351. Section 63G-2-308, which is renumbered from Section 63-2-307 is renumbered and amended to read:
[63-2-307
]. 63G-2-308. Segregation of records.Notwithstanding any other provision in this chapter, if a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect and information that the requester is not entitled to inspect under this chapter, and, if the information the requester is entitled to inspect is intelligible, the governmental entity:
(1) shall allow access to information in the record that the requester is entitled to inspect under this chapter; and
(2) may deny access to information in the record if the information is exempt from disclosure to the requester, issuing a notice of denial as provided in Section [63-2-205] 63G-2-205.
Section 1352. Section 63G-2-309, which is renumbered from Section 63-2-308 is renumbered and amended to read:
[63-2-308
]. 63G-2-309. Confidentiality claims.(1) (a) (i) Any person who provides to a governmental entity a record that the person believes should be protected under Subsection [63-2-304] 63G-2-305(1) or (2) or both Subsections [63-2-304] 63G-2-305(1) and (2) shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
(ii) Any of the following who provides to an institution within the state system of higher education defined in Section 53B-1-102 a record that the person or governmental entity believes should be protected under Subsection [63-2-304] 63G-2-305(40)(a)(ii) or (vi) or both Subsections [63-2-304] 63G-2-305(40)(a)(ii) and (vi) shall provide the institution within the state system of higher education a written claim of business confidentiality in accordance with Section 53B-16-304:
(A) a person;
(B) a federal governmental entity;
(C) a state governmental entity; or
(D) a local governmental entity.
(b) A person or governmental entity who complies with this Subsection (1) shall be notified by the governmental entity to whom the request for a record is made if:
(i) a record claimed to be protected under one of the following is classified public:
(A) Subsection [63-2-304] 63G-2-305(1);
(B) Subsection [63-2-304] 63G-2-305(2);
(C) Subsection [63-2-304] 63G-2-305(40)(a)(ii);
(D) Subsection [63-2-304] 63G-2-305(40)(a)(vi); or
(E) a combination of the provisions described in Subsections (1)(b)(i)(A) through (D); or
(ii) the governmental entity to whom the request for a record is made determines that the record claimed to be protected under a provision listed in Subsection (1)(b)(i) should be released after balancing interests under Subsection [63-2-201] 63G-2-201(5)(b) or Subsection [63-2-401] 63G-2-401(6).
(2) Except as provided by court order, the governmental entity to whom the request for a record is made may not disclose a record claimed to be protected under a provision listed in Subsection (1)(b)(i) but which the governmental entity or records committee determines should be disclosed until the period in which to bring an appeal expires or the end of the appeals process, including judicial appeal. This Subsection (2) does not apply where the claimant, after notice, has waived the claim by not appealing or intervening before the records committee.
(3) Disclosure or acquisition of information under this chapter does not constitute misappropriation under Subsection 13-24-2(2).
Section 1353. Section 63G-2-401, which is renumbered from Section 63-2-401 is renumbered and amended to read:
Part 4. Appeals
[63-2-401]. 63G-2-401. Appeal to head of governmental entity.
(1) (a) Any person aggrieved by a governmental entity's access determination under this chapter, including a person not a party to the governmental entity's proceeding, may appeal the determination within 30 days to the chief administrative officer of the governmental entity by filing a notice of appeal.
(b) If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available under Subsection [63-2-204] 63G-2-204(3), and, if the requester believes the extraordinary circumstances do not exist or that the time specified is unreasonable, the requester may appeal the governmental entity's claim of extraordinary circumstances or date for compliance within 30 days after notification of a claim of extraordinary circumstances by the governmental entity, despite the lack of a "determination" or its equivalent under Subsection [63-2-204] 63G-2-204(7).
(2) The notice of appeal shall contain the following information:
(a) the petitioner's name, mailing address, and daytime telephone number; and
(b) the relief sought.
(3) The petitioner may file a short statement of facts, reasons, and legal authority in support of the appeal.
(4) (a) If the appeal involves a record that is the subject of a business confidentiality claim under Section [63-2-308] 63G-2-309, the chief administrative officer shall:
(i) send notice of the requester's appeal to the business confidentiality claimant within three business days after receiving notice, except that if notice under this section must be given to more than 35 persons, it shall be given as soon as reasonably possible; and
(ii) send notice of the business confidentiality claim and the schedule for the chief administrative officer's determination to the requester within three business days after receiving notice of the requester's appeal.
(b) The claimant shall have seven business days after notice is sent by the administrative officer to submit further support for the claim of business confidentiality.
(5) (a) The chief administrative officer shall make a determination on the appeal within the following period of time:
(i) within five business days after the chief administrative officer's receipt of the notice of appeal; or
(ii) within twelve business days after the governmental entity sends the requester's notice of appeal to a person who submitted a claim of business confidentiality.
(b) If the chief administrative officer fails to make a determination within the time specified in Subsection (5)(a), the failure shall be considered the equivalent of an order denying the appeal.
(c) The provisions of this section notwithstanding, the parties participating in the proceeding may, by agreement, extend the time periods specified in this section.
(6) The chief administrative officer may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private under Section [63-2-302] 63G-2-302(2) or protected under Section [63-2-304] 63G-2-305 if the interests favoring access outweigh the interests favoring restriction of access.
(7) The governmental entity shall send written notice of the determination of the chief administrative officer to all participants. If the chief administrative officer affirms the denial in whole or in part, the denial shall include a statement that the requester has the right to appeal the denial to either the records committee or district court, the time limits for filing an appeal, and the name and business address of the executive secretary of the records committee.
(8) A person aggrieved by a governmental entity's classification or designation determination under this chapter, but who is not requesting access to the records, may appeal that determination using the procedures provided in this section. If a nonrequester is the only appellant, the procedures provided in this section shall apply, except that the determination on the appeal shall be made within 30 days after receiving the notice of appeal.
(9) The duties of the chief administrative officer under this section may be delegated.
Section 1354. Section 63G-2-402, which is renumbered from Section 63-2-402 is renumbered and amended to read:
[63-2-402
]. 63G-2-402. Option for appealing a denial.(1) If the chief administrative officer of a governmental entity denies a records request under Section [63-2-401] 63G-2-401, the requester may:
(a) appeal the denial to the records committee as provided in Section [63-2-403] 63G-2-403; or
(b) petition for judicial review in district court as provided in Section [63-2-404] 63G-2-404.
(2) Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity's proceeding, may appeal the determination to the records committee as provided in Section [63-2-403] 63G-2-403.
Section 1355. Section 63G-2-403, which is renumbered from Section 63-2-403 is renumbered and amended to read:
[63-2-403
]. 63G-2-403. Appeals to the records committee.(1) A petitioner, including an aggrieved person who did not participate in the appeal to the governmental entity's chief administrative officer, may appeal to the records committee by filing a notice of appeal with the executive secretary no later than:
(a) 30 days after the chief administrative officer of the governmental entity has granted or denied the record request in whole or in part, including a denial under Subsection [63-2-204] 63G-2-204(7);
(b) 45 days after the original request for a record if:
(i) the circumstances described in Subsection [63-2-401] 63G-2-401(1)(b) occur; and
(ii) the chief administrative officer failed to make a determination under Section [63-2-401] 63G-2-401.
(2) The notice of appeal shall contain the following information:
(a) the petitioner's name, mailing address, and daytime telephone number;
(b) a copy of any denial of the record request; and
(c) the relief sought.
(3) The petitioner may file a short statement of facts, reasons, and legal authority in support of the appeal.
(4) (a) Except as provided in Subsection (4)(b), no later than five business days after receiving a notice of appeal, the executive secretary of the records committee shall:
(i) schedule a hearing for the records committee to discuss the appeal at the next regularly scheduled committee meeting falling at least 14 days after the date the notice of appeal is filed but no longer than 52 calendar days after the date the notice of appeal was filed except that the records committee may schedule an expedited hearing upon application of the petitioner and good cause shown;
(ii) send a copy of the notice of hearing to the petitioner; and
(iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing to:
(A) each member of the records committee;
(B) the records officer and the chief administrative officer of the governmental entity from which the appeal originated;
(C) any person who made a business confidentiality claim under Section [63-2-308] 63G-2-309 for a record that is the subject of the appeal; and
(D) all persons who participated in the proceedings before the governmental entity's chief administrative officer.
(b) (i) The executive secretary of the records committee may decline to schedule a hearing if the record series that is the subject of the appeal has been found by the committee in a previous hearing involving the same government entity to be appropriately classified as private, controlled, or protected.
(ii) (A) If the executive secretary of the records committee declines to schedule a hearing, the executive secretary of the records committee shall send a notice to the petitioner indicating that the request for hearing has been denied and the reason for the denial.
(B) The committee shall make rules to implement this section as provided by [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(5) (a) A written statement of facts, reasons, and legal authority in support of the governmental entity's position must be submitted to the executive secretary of the records committee not later than five business days before the hearing.
(b) The governmental entity shall send a copy of the written statement to the petitioner by first class mail, postage prepaid. The executive secretary shall forward a copy of the written statement to each member of the records committee.
(6) (a) No later than ten business days after the notice of appeal is sent by the executive secretary, a person whose legal interests may be substantially affected by the proceeding may file a request for intervention before the records committee.
(b) Any written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention.
(c) The person seeking intervention shall provide copies of the statement described in Subsection (6)(b) to all parties to the proceedings before the records committee.
(7) The records committee shall hold a hearing within the period of time described in Subsection (4).
(8) At the hearing, the records committee shall allow the parties to testify, present evidence, and comment on the issues. The records committee may allow other interested persons to comment on the issues.
(9) (a) The records committee may review the disputed records. However, if the committee is weighing the various interests under Subsection (11), the committee must review the disputed records. The review shall be in camera.
(b) Members of the records committee may not disclose any information or record reviewed by the committee in camera unless the disclosure is otherwise authorized by this chapter.
(10) (a) Discovery is prohibited, but the records committee may issue subpoenas or other orders to compel production of necessary evidence.
(b) When the subject of a records committee subpoena disobeys or fails to comply with the subpoena, the records committee may file a motion for an order to compel obedience to the subpoena with the district court.
(c) The records committee's review shall be de novo.
(11) (a) No later than five business days after the hearing, the records committee shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part.
(b) The records committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access outweighs the interest favoring restriction of access.
(c) In making a determination under Subsection (11)(b), the records committee shall consider and, where appropriate, limit the requester's use and further disclosure of the record in order to protect:
(i) privacy interests in the case of a private or controlled record;
(ii) business confidentiality interests in the case of a record protected under Subsection [63-2-304] 63G-2-305(1), (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records.
(12) The order of the records committee shall include:
(a) a statement of reasons for the decision, including citations to this chapter, court rule or order, another state statute, federal statute, or federal regulation that governs disclosure of the record, provided that the citations do not disclose private, controlled, or protected information;
(b) a description of the record or portions of the record to which access was ordered or denied, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure under Subsection [63-2-201] 63G-2-201(3)(b);
(c) a statement that any party to the proceeding before the records committee may appeal the records committee's decision to district court; and
(d) a brief summary of the appeals process, the time limits for filing an appeal, and a notice that in order to protect its rights on appeal, the party may wish to seek advice from an attorney.
(13) If the records committee fails to issue a decision within 57 calendar days of the filing of the notice of appeal, that failure shall be considered the equivalent of an order denying the appeal. The petitioner shall notify the records committee in writing if the petitioner considers the appeal denied.
(14) (a) Unless a notice of intent to appeal is filed under Subsection (14)(b), each party to the proceeding shall comply with the order of the records committee.
(b) If a party disagrees with the order of the records committee, that party may file a notice of intent to appeal the order of the records committee.
(c) If the records committee orders the governmental entity to produce a record and no appeal is filed, or if, as a result of the appeal, the governmental entity is required to produce a record, the governmental entity shall:
(i) produce the record; and
(ii) file a notice of compliance with the records committee.
(d) (i) If the governmental entity that is ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the records committee may do either or both of the following:
(A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
(B) send written notice of the governmental entity’s noncompliance to:
(I) the governor for executive branch entities;
(II) the Legislative Management Committee for legislative branch entities; and
(III) the Judicial Council for judicial branch agencies entities.
(ii) In imposing a civil penalty, the records committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional.
Section 1356. Section 63G-2-404, which is renumbered from Section 63-2-404 is renumbered and amended to read:
[63-2-404
]. 63G-2-404. Judicial review.(1) (a) Any party to a proceeding before the records committee may petition for judicial review by the district court of the records committee's order.
(b) The petition shall be filed no later than 30 days after the date of the records committee's order.
(c) The records committee is a necessary party to the petition for judicial review.
(d) The executive secretary of the records committee shall be served with notice of the petition in accordance with the Utah Rules of Civil Procedure.
(2) (a) A requester may petition for judicial review by the district court of a governmental entity's determination as specified in Subsection [63-2-402] 63G-2-402 (1)(b).
(b) The requester shall file a petition no later than:
(i) 30 days after the governmental entity has responded to the records request by either providing the requested records or denying the request in whole or in part;
(ii) 35 days after the original request if the governmental entity failed to respond to the request; or
(iii) 45 days after the original request for records if:
(A) the circumstances described in Subsection [63-2-401] 63G-2-401(1)(b) occur; and
(B) the chief administrative officer failed to make a determination under Section [63-2-401] 63G-2-401.
(3) The petition for judicial review shall be a complaint governed by the Utah Rules of Civil Procedure and shall contain:
(a) the petitioner's name and mailing address;
(b) a copy of the records committee order from which the appeal is taken, if the petitioner brought a prior appeal to the records committee;
(c) the name and mailing address of the governmental entity that issued the initial determination with a copy of that determination;
(d) a request for relief specifying the type and extent of relief requested; and
(e) a statement of the reasons why the petitioner is entitled to relief.
(4) If the appeal is based on the denial of access to a protected record, the court shall allow the claimant of business confidentiality to provide to the court the reasons for the claim of business confidentiality.
(5) All additional pleadings and proceedings in the district court are governed by the Utah Rules of Civil Procedure.
(6) The district court may review the disputed records. The review shall be in camera.
(7) The court shall:
(a) make its decision de novo, but allow introduction of evidence presented to the records committee;
(b) determine all questions of fact and law without a jury; and
(c) decide the issue at the earliest practical opportunity.
(8) (a) The court may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the interest favoring access outweighs the interest favoring restriction of access.
(b) The court shall consider and, where appropriate, limit the requester's use and further disclosure of the record in order to protect privacy interests in the case of private or controlled records, business confidentiality interests in the case of records protected under Subsections [63-2-304] 63G-2-305(1) and (2), and privacy interests or the public interest in the case of other protected records.
Section 1357. Section 63G-2-405, which is renumbered from Section 63-2-405 is renumbered and amended to read:
[63-2-405
]. 63G-2-405. Confidential treatment of records for which no exemption applies.(1) A court may, on appeal or in a declaratory or other action, order the confidential treatment of records for which no exemption from disclosure applies if:
(a) there are compelling interests favoring restriction of access to the record; and
(b) the interests favoring restriction of access clearly outweigh the interests favoring access.
(2) If a governmental entity requests a court to restrict access to a record under this section, the court shall require the governmental entity to pay the reasonable attorneys' fees incurred by the lead party in opposing the governmental entity's request, if:
(a) the court finds that no statutory or constitutional exemption from disclosure could reasonably apply to the record in question; and
(b) the court denies confidential treatment under this section.
(3) This section does not apply to records that are specifically required to be public under statutory provisions outside of this chapter or under Section [63-2-301] 63G-2-301, except as provided in Subsection (4).
(4) (a) Access to drafts and empirical data in drafts may be limited under this section, but the court may consider, in its evaluation of interests favoring restriction of access, only those interests that relate to the underlying information, and not to the deliberative nature of the record.
(b) Access to original data in a computer program may be limited under this section, but the court may consider, in its evaluation of interests favoring restriction of access, only those interests that relate to the underlying information, and not to the status of that data as part of a computer program.
Section 1358. Section 63G-2-501, which is renumbered from Section 63-2-501 is renumbered and amended to read:
Part 5. State Records Committee
[63-2-501]. 63G-2-501. State Records Committee created -- Membership -- Terms -- Vacancies -- Expenses.
(1) There is created the State Records Committee within the Department of Administrative Services to consist of the following seven individuals:
(a) an individual in the private sector whose profession requires him to create or manage records that if created by a governmental entity would be private or controlled;
(b) the state auditor or the auditor's designee;
(c) the director of the Division of State History or the director's designee;
(d) the governor or the governor's designee;
(e) one citizen member;
(f) one elected official representing political subdivisions; and
(g) one individual representing the news media.
(2) The members specified in Subsections (1)(a), (e), (f), and (g) shall be appointed by the governor with the consent of the Senate.
(3) (a) Except as required by Subsection (3)(b), as terms of current committee members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of committee members are staggered so that approximately half of the committee is appointed every two years.
(c) Each appointed member is eligible for reappointment for one additional term.
(4) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(5) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
Section 1359. Section 63G-2-502, which is renumbered from Section 63-2-502 is renumbered and amended to read:
[63-2-502
]. 63G-2-502. State Records Committee -- Duties.(1) The records committee shall:
(a) meet at least once every three months;
(b) review and approve retention and disposal of records;
(c) hear appeals from determinations of access as provided by Section [63-2-403] 63G-2-403; and
(d) appoint a chairman from among its members.
(2) The records committee may:
(a) make rules to govern its own proceedings as provided by [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(b) by order, after notice and hearing, reassign classification and designation for any record series by a governmental entity if the governmental entity's classification or designation is inconsistent with this chapter.
(3) The records committee shall annually appoint an executive secretary to the records committee. The executive secretary may not serve as a voting member of the committee.
(4) Five members of the records committee are a quorum for the transaction of business.
(5) The state archives shall provide staff and support services for the records committee.
(6) Unless otherwise reimbursed, the citizen member, the individual in the private sector, and the representative of the news media shall receive a per diem as established by the Division of Finance in Section 63A-3-106.
(7) If the records committee reassigns the classification or designation of a record or record series under Subsection (2)(b), any affected governmental entity or any other interested person may appeal the reclassification or redesignation to the district court. The district court shall hear the matter de novo.
(8) The Office of the Attorney General shall provide counsel to the records committee and shall review proposed retention schedules.
Section 1360. Section 63G-2-601, which is renumbered from Section 63-2-601 is renumbered and amended to read:
Part 6. Collection of Information and Accuracy of Records
[63-2-601]. 63G-2-601. Rights of individuals on whom data is maintained -- Classification statement -- Notice to provider of information.
(1) (a) Each governmental entity shall file with the state archivist a statement explaining the purposes for which a record series that is designated as private or controlled is collected and used by that governmental entity.
(b) The statement filed under Subsection (1)(a) is a public record.
(2) (a) A governmental entity shall provide notice of the following to a person that is asked to furnish information that could be classified as a private or controlled record:
(i) the reasons the person is asked to furnish the information;
(ii) the intended uses of the information;
(iii) the consequences for refusing to provide the information; and
(iv) the classes of persons and the governmental entities that currently:
(A) share the information with the governmental entity; or
(B) receive the information from the governmental entity on a regular or contractual basis.
(b) The notice shall be:
(i) posted in a prominent place at all locations where the governmental entity collects the information; or
(ii) included as part of the documents or forms that are used by the governmental entity to collect the information.
(3) Upon request, each governmental entity shall explain to a person:
(a) the reasons the person is asked to furnish information that could be classified as a private or controlled record;
(b) the intended uses of the information referred to in Subsection (3)(a);
(c) the consequences for refusing to provide the information referred to in Subsection (3)(a); and
(d) the reasons and circumstances under which the information referred to in Subsection (3)(a) may be shared with or provided to other persons or governmental entities.
(4) A governmental entity may use private or controlled records only for those purposes:
(a) given in the statement filed with the state archivist under Subsection (1); or
(b) for which another governmental entity may use the record under Section [63-2-206] 63G-2-206.
Section 1361. Section 63G-2-602, which is renumbered from Section 63-2-602 is renumbered and amended to read:
[63-2-602
]. 63G-2-602. Disclosure to subject of records -- Context of use.When providing records under Subsection [63-2-202] 63G-2-202(1) or when providing public records about an individual to the persons specified in Subsection [63-2-202] 63G-2-202(1), a governmental entity shall, upon request, disclose the context in which the record is used.
Section 1362. Section 63G-2-603, which is renumbered from Section 63-2-603 is renumbered and amended to read:
[63-2-603
]. 63G-2-603. Requests to amend a record -- Appeals.(1) Proceedings of state agencies under this section shall be governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) (a) Subject to Subsection (8), an individual may contest the accuracy or completeness of any public, or private, or protected record concerning him by requesting the governmental entity to amend the record. However, this section does not affect the right of access to private or protected records.
(b) The request shall contain the following information:
(i) the requester's name, mailing address, and daytime telephone number; and
(ii) a brief statement explaining why the governmental entity should amend the record.
(3) The governmental entity shall issue an order either approving or denying the request to amend as provided in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, or, if the act does not apply, no later than 30 days after receipt of the request.
(4) If the governmental entity approves the request, it shall correct all of its records that contain the same incorrect information as soon as practical. A governmental entity may not disclose the record until it has amended it.
(5) If the governmental entity denies the request, it shall:
(a) inform the requester in writing; and
(b) provide a brief statement giving its reasons for denying the request.
(6) (a) If a governmental entity denies a request to amend a record, the requester may submit a written statement contesting the information in the record.
(b) The governmental entity shall:
(i) file the requester's statement with the disputed record if the record is in a form such that the statement can accompany the record or make the statement accessible if the record is not in a form such that the statement can accompany the record; and
(ii) disclose the requester's statement along with the information in the record whenever the governmental entity discloses the disputed information.
(7) The requester may appeal the denial of the request to amend a record pursuant to the Administrative Procedures Act or, if that act does not apply, to district court.
(8) This section does not apply to records relating to title to real or personal property, medical records, judicial case files, or any other records that the governmental entity determines must be maintained in their original form to protect the public interest and to preserve the integrity of the record system.
Section 1363. Section 63G-2-604, which is renumbered from Section 63-2-604 is renumbered and amended to read:
[63-2-604
]. 63G-2-604. Retention and disposition of records.(1) (a) Except for a governmental entity that is permitted to maintain its own retention schedules under Part 7, Applicability to Political Subdivisions, the Judiciary, and the Legislature, each governmental entity shall file with the State Records Committee a proposed schedule for the retention and disposition of each type of material that is defined as a record under this chapter.
(b) After a retention schedule is reviewed and approved by the State Records Committee under Subsection [63-2-502] 63G-2-502(1)(b), the governmental entity shall maintain and destroy records in accordance with the retention schedule.
(c) If a governmental entity subject to the provisions of this section has not received an approved retention schedule for a specific type of material that is classified as a record under this chapter, the model retention schedule maintained by the state archivist shall govern the retention and destruction of that type of material.
(2) A retention schedule that is filed with or approved by the State Records Committee under the requirements of this section is a public record.
Section 1364. Section 63G-2-701, which is renumbered from Section 63-2-701 is renumbered and amended to read:
Part 7. Applicability to Political Subdivisions, the Judiciary, and the Legislature
[63-2-701]. 63G-2-701. Political subdivisions may adopt ordinances in compliance with chapter.
(1) (a) Each political subdivision may adopt an ordinance or a policy applicable throughout its jurisdiction relating to information practices including classification, designation, access, denials, segregation, appeals, management, retention, and amendment of records.
(b) The ordinance or policy shall comply with the criteria set forth in this section.
(c) If any political subdivision does not adopt and maintain an ordinance or policy, then that political subdivision is subject to this chapter.
(d) Notwithstanding the adoption of an ordinance or policy, each political subdivision is subject to Parts 1 and 3, and Sections [63-2-201] 63G-2-201, [63-2-202] 63G-2-202, [63-2-205] 63G-2-205, [63-2-206] 63G-2-206, [63-2-601] 63G-2-601, [63-2-602] 63G-2-602, [63-2-905] 63A-12-105, and [63-2-907] 63A-12-107.
(e) Every ordinance, policy, or amendment to the ordinance or policy shall be filed with the state archives no later than 30 days after its effective date.
(f) The political subdivision shall also report to the state archives all retention schedules, and all designations and classifications applied to record series maintained by the political subdivision.
(g) The report required by Subsection (f) is notification to state archives of the political subdivision's retention schedules, designations, and classifications. The report is not subject to approval by state archives. If state archives determines that a different retention schedule is needed for state purposes, state archives shall notify the political subdivision of the state's retention schedule for the records and shall maintain the records if requested to do so under Subsection [63-2-905] 63A-12-105(2).
(2) Each ordinance or policy relating to information practices shall:
(a) provide standards for the classification and designation of the records of the political subdivision as public, private, controlled, or protected in accordance with Part 3 of this chapter;
(b) require the classification of the records of the political subdivision in accordance with those standards;
(c) provide guidelines for establishment of fees in accordance with Section [63-2-203] 63G-2-203; and
(d) provide standards for the management and retention of the records of the political subdivision comparable to Section [63-2-903] 63A-12-103.
(3) (a) Each ordinance or policy shall establish access criteria, procedures, and response times for requests to inspect, obtain, or amend records of the political subdivision, and time limits for appeals consistent with this chapter.
(b) In establishing response times for access requests and time limits for appeals, the political subdivision may establish reasonable time frames different than those set out in Section [63-2-204] 63G-2-204 and Part 4 of this chapter if it determines that the resources of the political subdivision are insufficient to meet the requirements of those sections.
(4) (a) The political subdivision shall establish an appeals process for persons aggrieved by classification, designation or access decisions.
(b) The policy or ordinance shall provide for:
(i) an appeals board composed of the governing body of the political subdivision; or
(ii) a separate appeals board composed of members of the governing body and the public, appointed by the governing body.
(5) If the requester concurs, the political subdivision may also provide for an additional level of administrative review to the records committee in accordance with Section [63-2-403] 63G-2-403.
(6) Appeals of the decisions of the appeals boards established by political subdivisions shall be by petition for judicial review to the district court. The contents of the petition for review and the conduct of the proceeding shall be in accordance with Sections [63-2-402] 63G-2-402 and [63-2-404] 63G-2-404.
(7) Any political subdivision that adopts an ordinance or policy under Subsection (1) shall forward to state archives a copy and summary description of the ordinance or policy.
Section 1365. Section 63G-2-702, which is renumbered from Section 63-2-702 is renumbered and amended to read:
[63-2-702
]. 63G-2-702. Applicability to the judiciary.(1) The judiciary is subject to the provisions of this chapter except as provided in this section.
(2) (a) The judiciary is not subject to Part 4, Appeals, except as provided in Subsection (5).
(b) The judiciary is not subject to Parts 5, State Records Committee, and 6, Collection of Information and Accuracy of Records.
(c) The judiciary is subject to only the following sections in Part 9, Archives and Records Service: Sections [63-2-905] 63A-12-105 and [63-2-906] 63A-12-106.
(3) The Judicial Council, the Administrative Office of the Courts, the courts, and other administrative units in the judicial branch shall designate and classify their records in accordance with Sections [63-2-301] 63G-2-301 through [63-2-304] 63G-2-305.
(4) Substantially consistent with the provisions of this chapter, the Judicial Council shall:
(a) make rules governing requests for access, fees, classification, designation, segregation, management, retention, denials and appeals of requests for access and retention, and amendment of judicial records;
(b) establish an appellate board to handle appeals from denials of requests for access and provide that a requester who is denied access by the appellate board may file a lawsuit in district court; and
(c) provide standards for the management and retention of judicial records substantially consistent with Section [63-2-903] 63A-12-103.
(5) Rules governing appeals from denials of requests for access shall substantially comply with the time limits provided in Section [63-2-204] 63G-2-204 and Part 4, Appeals.
(6) Upon request, the state archivist shall:
(a) assist with and advise concerning the establishment of a records management program in the judicial branch; and
(b) as required by the judiciary, provide program services similar to those available to the executive and legislative branches of government as provided in this chapter.
Section 1366. Section 63G-2-703, which is renumbered from Section 63-2-703 is renumbered and amended to read:
[63-2-703
]. 63G-2-703. Applicability to the Legislature.(1) The Legislature and its staff offices shall designate and classify records in accordance with Sections [63-2-301] 63G-2-301 through [63-2-304] 63G-2-305 as public, private, controlled, or protected.
(2) (a) The Legislature and its staff offices are not subject to Section [63-2-203] 63G-2-203 or to Part 4, Appeals, 5, State Records Committee, or 6, Collection of Information and Accuracy of Records.
(b) The Legislature is subject to only the following sections in Part 9, Archives and Records Service: Sections [63-2-902] 63A-12-102, [63-2-906] 63A-12-106, and [63-2-909] 63A-12-109.
(3) The Legislature, through the Legislative Management Committee:
(a) shall establish policies to handle requests for classification, designation, fees, access, denials, segregation, appeals, management, retention, and amendment of records; and
(b) may establish an appellate board to hear appeals from denials of access.
(4) Policies shall include reasonable times for responding to access requests consistent with the provisions of Part 2, Access to Records, fees, and reasonable time limits for appeals.
(5) Upon request, the state archivist shall:
(a) assist with and advise concerning the establishment of a records management program in the Legislature; and
(b) as required by the Legislature, provide program services similar to those available to the executive branch of government, as provided in this chapter.
Section 1367. Section 63G-2-801, which is renumbered from Section 63-2-801 is renumbered and amended to read:
Part 8. Remedies
[63-2-801]. 63G-2-801. Criminal penalties.
(1) (a) A public employee or other person who has lawful access to any private, controlled, or protected record under this chapter, and who intentionally discloses, provides a copy of, or improperly uses a private, controlled, or protected record knowing that the disclosure or use is prohibited under this chapter, is guilty of a class B misdemeanor.
(b) It is a defense to prosecution under Subsection (1)(a) that the actor used or released private, controlled, or protected information in the reasonable belief that the use or disclosure of the information was necessary to expose a violation of law involving government corruption, abuse of office, or misappropriation of public funds or property.
(c) It is a defense to prosecution under Subsection (1)(a) that the record could have lawfully been released to the recipient if it had been properly classified.
(2) (a) A person who by false pretenses, bribery, or theft, gains access to or obtains a copy of any private, controlled, or protected record to which he is not legally entitled is guilty of a class B misdemeanor.
(b) No person shall be guilty under Subsection (2)(a) who receives the record, information, or copy after the fact and without prior knowledge of or participation in the false pretenses, bribery, or theft.
(3) A public employee who intentionally refuses to release a record the disclosure of which the employee knows is required by law or by final unappealed order from a governmental entity, the records committee, or a court, is guilty of a class B misdemeanor.
Section 1368. Section 63G-2-802, which is renumbered from Section 63-2-802 is renumbered and amended to read:
[63-2-802
]. 63G-2-802. Injunction -- Attorneys' fees.(1) A district court in this state may enjoin any governmental entity or political subdivision that violates or proposes to violate the provisions of this chapter.
(2) (a) A district court may assess against any governmental entity or political subdivision reasonable attorneys' fees and other litigation costs reasonably incurred in connection with a judicial appeal of a denial of a records request if the requester substantially prevails.
(b) In determining whether to award attorneys' fees under this section, the court shall consider:
(i) the public benefit derived from the case;
(ii) the nature of the requester's interest in the records; and
(iii) whether the governmental entity's or political subdivision's actions had a reasonable basis.
(c) Attorneys' fees shall not ordinarily be awarded if the purpose of the litigation is primarily to benefit the requester's financial or commercial interest.
(3) Neither attorneys' fees nor costs shall be awarded for fees or costs incurred during administrative proceedings.
(4) Notwithstanding Subsection (2), a court may only award fees and costs incurred in connection with appeals to district courts under Subsection [63-2-404] 63G-2-404(2) if the fees and costs were incurred 20 or more days after the requester provided to the governmental entity or political subdivision a statement of position that adequately explains the basis for the requester's position.
(5) Claims for attorneys' fees as provided in this section or for damages are subject to [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 1369. Section 63G-2-803, which is renumbered from Section 63-2-803 is renumbered and amended to read:
[63-2-803
]. 63G-2-803. No liability for certain decisions of a governmental entity or a political subdivision.(1) Neither the governmental entity or political subdivision, nor any officer or employee of the governmental entity or political subdivision, is liable for damages resulting from the release of a record where the person or government requesting the record presented evidence of authority to obtain the record even if it is subsequently determined that the requester had no authority.
(2) Neither the governmental entity or political subdivision, nor any officer or employee of the governmental entity or political subdivision, is liable for damages arising from the negligent disclosure of records classified as private under Subsection [63-2-302] 63G-2-302(1)(f) unless:
(a) the disclosure was of employment records maintained by the governmental entity; or
(b) the current or former government employee had previously filed the notice required by Section [63-2-302.5] 63G-2-303 and:
(i) the government entity did not take reasonable steps to preclude access or distribution of the record; or
(ii) the release of the record was otherwise willfully or grossly negligent.
(3) A mailing from a government agency to an individual who has filed an application under Section [63-2-302.5] 63G-2-303 is not a wrongful disclosure under this chapter.
Section 1370. Section 63G-2-804, which is renumbered from Section 63-2-804 is renumbered and amended to read:
[63-2-804
]. 63G-2-804. Disciplinary action.A governmental entity or political subdivision may take disciplinary action which may include suspension or discharge against any employee of the governmental entity or political subdivision who intentionally violates any provision of this chapter.
Section 1371. Section 63G-2-901, which is renumbered from Section 63-2-1001 is renumbered and amended to read:
Part 9. Public Associations
[63-2-1001]. 63G-2-901. Definitions -- Public associations subject to act.
(1) As used in this section:
(a) "Public association" means any association, organization, or society whose members include elected or appointed public officials and for which public funds are used or paid to the public association for membership dues or for other support for the official's participation in the public association.
(b) (i) "Public funds" means any monies received by a public entity from appropriations, taxes, fees, interest, or other returns on investment.
(ii) "Public funds" does not include monies donated to a public entity by a person or entity.
(2) The budget documents and financial statements of a public association shall be released pursuant to a written request if 50% or more of the public association's:
(a) members are elected or appointed public officials from this state; and
(b) membership dues or other financial support come from public funds from this state.
Section 1372. Section 63G-3-101, which is renumbered from Section 63-46a-1 is renumbered and amended to read:
CHAPTER 3. UTAH ADMINISTRATIVE RULEMAKING ACT
Part 1. General Provisions
[63-46a-1]. 63G-3-101. Title.
This [act] chapter is known as the "Utah Administrative Rulemaking Act."
Section 1373. Section 63G-3-102, which is renumbered from Section 63-46a-2 is renumbered and amended to read:
[63-46a-2
]. 63G-3-102. Definitions.As used in this chapter:
(1) "Administrative record" means information an agency relies upon when making a rule under this chapter including:
(a) the proposed rule, change in the proposed rule, and the rule analysis form;
(b) the public comment received and recorded by the agency during the public comment period;
(c) the agency's response to the public comment;
(d) the agency's analysis of the public comment; and
(e) the agency's report of its decision-making process.
(2) "Agency" means each state board, authority, commission, institution, department, division, officer, or other state government entity other than the Legislature, its committees, the political subdivisions of the state, or the courts, which is authorized or required by law to make rules, adjudicate, grant or withhold licenses, grant or withhold relief from legal obligations, or perform other similar actions or duties delegated by law.
(3) "Bulletin" means the Utah State Bulletin.
(4) "Catchline" means a short summary of each section, part, rule, or title of the code that follows the section, part, rule, or title reference placed before the text of the rule and serves the same function as boldface in legislation as described in Section 68-3-13.
(5) "Code" means the body of all effective rules as compiled and organized by the division and entitled "Utah Administrative Code."
(6) "Director" means the director of the Division of Administrative Rules.
(7) "Division" means the Division of Administrative Rules.
(8) "Effective" means operative and enforceable.
(9) (a) "File" means to submit a document to the division as prescribed by the division.
(b) "Filing date" means the day and time the document is recorded as received by the division.
(10) "Interested person" means any person affected by or interested in a proposed rule, amendment to an existing rule, or a nonsubstantive change made under Section [63-46a-10] 63G-3-402.
(11) "Order" means an agency action that determines the legal rights, duties, privileges, immunities, or other interests of one or more specific persons, but not a class of persons.
(12) "Person" means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency.
(13) "Publication" or "publish" means making a rule available to the public by including the rule or a summary of the rule in the bulletin.
(14) "Publication date" means the inscribed date of the bulletin.
(15) "Register" may include an electronic database.
(16) (a) "Rule" means an agency's written statement that:
(i) is explicitly or implicitly required by state or federal statute or other applicable law;
(ii) implements or interprets a state or federal legal mandate; and
(iii) applies to a class of persons or another agency.
(b) "Rule" includes the amendment or repeal of an existing rule.
(c) "Rule" does not mean:
(i) orders;
(ii) an agency's written statement that applies only to internal management and that does not restrict the legal rights of a public class of persons or another agency;
(iii) the governor's executive orders or proclamations;
(iv) opinions issued by the attorney general's office;
(v) declaratory rulings issued by the agency according to Section [63-46b-21] 63G-4-503 except as required by Section [63-46a-3] 63G-3-201;
(vi) rulings by an agency in adjudicative proceedings, except as required by Subsection [63-46a-3] 63G-3-201(6); or
(vii) an agency written statement that is in violation of any state or federal law.
(17) "Rule analysis" means the format prescribed by the division to summarize and analyze rules.
(18) "Small business" means a business employing fewer than 50 persons.
(19) "Substantive change" means a change in a rule that affects the application or results of agency actions.
Section 1374. Section 63G-3-201, which is renumbered from Section 63-46a-3 is renumbered and amended to read:
Part 2. Circumstances Requiring Rulemaking - Status of Administrative Rules
[63-46a-3]. 63G-3-201. When rulemaking is required.
(1) Each agency shall:
(a) maintain a current version of its rules; and
(b) make it available to the public for inspection during its regular business hours.
(2) In addition to other rulemaking required by law, each agency shall make rules when agency action:
(a) authorizes, requires, or prohibits an action;
(b) provides or prohibits a material benefit;
(c) applies to a class of persons or another agency; and
(d) is explicitly or implicitly authorized by statute.
(3) Rulemaking is also required when an agency issues a written interpretation of a state or federal legal mandate.
(4) Rulemaking is not required when:
(a) agency action applies only to internal agency management, inmates or residents of a state correctional, diagnostic, or detention facility, persons under state legal custody, patients admitted to a state hospital, members of the state retirement system, or students enrolled in a state education institution;
(b) a standardized agency manual applies only to internal fiscal or administrative details of governmental entities supervised under statute;
(c) an agency issues policy or other statements that are advisory, informative, or descriptive, and do not conform to the requirements of Subsections (2) and (3); or
(d) an agency makes nonsubstantive changes in a rule, except that the agency shall file all nonsubstantive changes in a rule with the division.
(5) A rule shall enumerate any penalty authorized by statute that may result from its violation.
(6) Each agency shall enact rules incorporating the principles of law not already in its rules that are established by final adjudicative decisions within 120 days after the decision is announced in its cases.
(7) (a) Each agency may enact a rule that incorporates by reference:
(i) all or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or by a nationally recognized organization or association;
(ii) state agency implementation plans mandated by the federal government for participation in the federal program;
(iii) lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection; or
(iv) lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code.
(b) Rules incorporating materials by reference shall:
(i) be enacted according to the procedures outlined in this chapter;
(ii) state that the referenced material is incorporated by reference;
(iii) state the date, issue, or version of the material being incorporated; and
(iv) define specifically what material is incorporated by reference and identify any agency deviations from it.
(c) The agency shall identify any substantive changes in the material incorporated by reference by following the rulemaking procedures of this chapter.
(d) The agency shall maintain a complete and current copy of the referenced material available for public review at the agency and at the division.
(8) (a) This chapter is not intended to inhibit the exercise of agency discretion within the limits prescribed by statute or agency rule.
(b) An agency may enact a rule creating a justified exception to a rule.
(9) An agency may obtain assistance from the attorney general to ensure that its rules meet legal and constitutional requirements.
Section 1375. Section 63G-3-202, which is renumbered from Section 63-46a-3.5 is renumbered and amended to read:
[63-46a-3.5
]. 63G-3-202. Rules having the effect of law.(1) An agency's written statement is a rule if it conforms to the definition of a rule under Section [63-46a-2] 63G-3-102, but the written statement is not enforceable unless it is made as a rule in accordance with the requirements of this chapter.
(2) An agency's written statement that is made as a rule in accordance with the requirements of this chapter is enforceable and has the effect of law.
Section 1376. Section 63G-3-301, which is renumbered from Section 63-46a-4 is renumbered and amended to read:
Part 3. Rulemaking Procedures
[63-46a-4]. 63G-3-301. Rulemaking procedure.
(1) An agency authorized to make rules is also authorized to amend or repeal those rules.
(2) Except as provided in Sections [63-46a-6] 63G-3-303 and [63-46a-7] 63G-3-304, when making, amending, or repealing a rule agencies shall comply with:
(a) the requirements of this section;
(b) consistent procedures required by other statutes;
(c) applicable federal mandates; and
(d) rules made by the division to implement this chapter.
(3) Subject to the requirements of this chapter, each agency shall develop and use flexible approaches in drafting rules that meet the needs of the agency and that involve persons affected by the agency's rules.
(4) (a) Each agency shall file its proposed rule and rule analysis with the division.
(b) Rule amendments shall be marked with new language underlined and deleted language struck out.
(c) (i) The division shall publish the information required under [this] Subsection [(4)] (6) on the rule analysis and the text of the proposed rule in the next issue of the bulletin.
(ii) For rule amendments, only the section or subsection of the rule being amended need be printed.
(iii) If the director determines that the rule is too long to publish, the director shall publish the rule analysis and shall publish the rule by reference to a copy on file with the division.
(5) Prior to filing a rule with the division, the department head shall consider and comment on the fiscal impact a rule may have on businesses.
(6) The rule analysis shall contain:
(a) a summary of the rule or change;
(b) the purpose of the rule or reason for the change;
(c) the statutory authority or federal requirement for the rule;
(d) the anticipated cost or savings to:
(i) the state budget;
(ii) local governments;
(iii) small businesses; and
(iv) persons other than small businesses, businesses, or local governmental entities;
(e) the compliance cost for affected persons;
(f) how interested persons may review the full text of the rule;
(g) how interested persons may present their views on the rule;
(h) the time and place of any scheduled public hearing;
(i) the name and telephone number of an agency employee who may be contacted about the rule;
(j) the name of the agency head or designee who authorized the rule;
(k) the date on which the rule may become effective following the public comment period; and
(l) comments by the department head on the fiscal impact the rule may have on businesses.
(7) (a) For a rule being repealed and reenacted, the rule analysis shall contain a summary that generally includes the following:
(i) a summary of substantive provisions in the repealed rule which are eliminated from the enacted rule; and
(ii) a summary of new substantive provisions appearing only in the enacted rule.
(b) The summary required under this Subsection (7) is to aid in review and may not be used to contest any rule on the ground of noncompliance with the procedural requirements of this chapter.
(8) A copy of the rule analysis shall be mailed to all persons who have made timely request of the agency for advance notice of its rulemaking proceedings and to any other person who, by statutory or federal mandate or in the judgment of the agency, should also receive notice.
(9) (a) Following the publication date, the agency shall allow at least 30 days for public comment on the rule.
(b) The agency shall review and evaluate all public comments submitted in writing within the time period under Subsection (9)(a) or presented at public hearings conducted by the agency within the time period under Subsection (9)(a).
(10) (a) Except as provided in Sections [63-46a-6] 63G-3-303 and [63-46a-7] 63G-3-304, a proposed rule becomes effective on any date specified by the agency that is no fewer than seven calendar days after the close of the public comment period under Subsection (9), nor more than 120 days after the publication date.
(b) The agency shall provide notice of the rule's effective date to the division in the form required by the division.
(c) The notice of effective date may not provide for an effective date prior to the date it is received by the division.
(d) The division shall publish notice of the effective date of the rule in the next issue of the bulletin.
(e) A proposed rule lapses if a notice of effective date or a change to a proposed rule is not filed with the division within 120 days of publication.
(11) (a) As used in this Subsection (11), "initiate rulemaking proceedings" means the filing, for the purposes of publication in accordance with Subsection (4), of an agency's proposed rule that is required by state statute.
(b) A state agency shall initiate rulemaking proceedings no later than 180 days after the effective date of the statutory provision that requires the rulemaking.
(c) If a state agency does not initiate rulemaking proceedings in accordance with the time requirements in Subsection (11)(b), the state agency shall appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay.
Section 1377. Section 63G-3-302, which is renumbered from Section 63-46a-5 is renumbered and amended to read:
[63-46a-5
]. 63G-3-302. Public hearings.(1) Each agency may hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule during the public comment period.
(2) Each agency shall hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule if:
(a) a public hearing is required by state or federal mandate;
(b) (i) another state agency, ten interested persons, or an interested association having not fewer than ten members request a public hearing; and
(ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule.
(3) The agency shall hold the hearing:
(a) before the rule becomes effective; and
(b) no less than seven days nor more than 30 days after receipt of the request for hearing.
Section 1378. Section 63G-3-303, which is renumbered from Section 63-46a-6 is renumbered and amended to read:
[63-46a-6
]. 63G-3-303. Changes in rules.(1) (a) To change a proposed rule already published in the bulletin, an agency shall file with the division:
(i) the text of the changed rule; and
(ii) a rule analysis containing a description of the change and the information required by Section [63-46a-4] 63G-3-301.
(b) A change to a proposed rule may not be filed more than 120 days after publication of the rule being changed.
(c) The division shall publish the rule analysis for the changed rule in the bulletin.
(d) The changed proposed rule and its associated proposed rule will become effective on a date specified by the agency, not less than 30 days or more than 120 days after publication of the last change in proposed rule.
(e) A changed proposed rule and its associated proposed rule lapse if a notice of effective date or another change to a proposed rule is not filed with the division within 120 days of publication of the last change in proposed rule.
(2) If the rule change is nonsubstantive:
(a) the agency need not comply with the requirements of Subsection (1); and
(b) the agency shall notify the division of the change in writing.
(3) If the rule is effective, the agency shall amend the rule according to the procedures specified in Section [63-46a-4] 63G-3-301.
Section 1379. Section 63G-3-304, which is renumbered from Section 63-46a-7 is renumbered and amended to read:
[63-46a-7
]. 63G-3-304. Emergency rulemaking procedure.(1) All agencies shall comply with the rulemaking procedures of Section [63-46a-4] 63G-3-301 unless an agency finds that these procedures would:
(a) cause an imminent peril to the public health, safety, or welfare;
(b) cause an imminent budget reduction because of budget restraints or federal requirements; or
(c) place the agency in violation of federal or state law.
(2) (a) When finding that its rule is excepted from regular rulemaking procedures by this section, the agency shall file with the division:
(i) the text of the rule; and
(ii) a rule analysis that includes the specific reasons and justifications for its findings.
(b) The division shall publish the rule in the bulletin as provided in Subsection [63-46a-4] 63G-3-301(4).
(c) The agency shall notify interested persons as provided in Subsection [63-46a-4] 63G-3-301(8).
(d) The rule becomes effective for a period not exceeding 120 days on the date of filing or any later date designated in the rule.
(3) If the agency intends the rule to be effective beyond 120 days, the agency shall also comply with the procedures of Section [63-46a-4] 63G-3-301.
Section 1380. Section 63G-3-305, which is renumbered from Section 63-46a-9 is renumbered and amended to read:
[63-46a-9
]. 63G-3-305. Agency review of rules -- Schedule of filings -- Limited exemption for certain rules.(1) Each agency shall review each of its rules within five years of the rule's original effective date or within five years of the filing of the last five-year review, whichever is later. Rules effective prior to 1992 need not be reviewed until 1997.
(2) An agency may consider any substantial review of a rule to be a five-year review. If the agency chooses to consider a review a five-year review, it shall follow the procedures outlined in Subsection (3).
(3) At the conclusion of its review, the agency shall file a notice of review on or before the anniversary date indicating its intent to continue, amend, or repeal the rule.
(a) If the agency continues the rule, it shall file a statement which includes:
(i) a concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule;
(ii) a summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule; and
(iii) a reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any.
(b) If the agency repeals the rule, it shall comply with Section [63-46a-4] 63G-3-301.
(c) If the agency amends and continues the rule, it shall comply with the requirements of Section [63-46a-4] 63G-3-301 and file the statement required in Subsection (3)(a).
(4) (a) The division shall publish the notice and statement in the bulletin.
(b) The division may schedule the publication of agency notices and statements, provided that no notice and statement shall be published more than one year after the review deadline established under Subsection (1).
(5) The division shall notify an agency of rules due for review at least 180 days prior to the anniversary date.
(6) If an agency finds that it will not meet the deadline established in Subsection (1):
(a) the agency may file an extension prior to the anniversary date with the division indicating the reason for the extension; and
(b) the division shall publish notice of the extension in the next issue of the bulletin.
(7) An extension permits the agency to file a notice no more than 120 days after the anniversary date.
(8) If an agency fails to file a notice of review or extension on or before the date specified in the notice mandated in Subsection (5), the division shall:
(a) publish a notice in the next issue of the bulletin that the rule has expired and is no longer enforceable;
(b) remove the rule from the code; and
(c) notify the agency that the rule has expired.
(9) After a rule expires, an agency must comply with the requirements of Section [63-46a-4] 63G-3-301 to reenact the rule.
(10) (a) Rules issued under the following provisions related to the Department of Workforce Services or Labor Commission that are in effect on July 1, 1997, are not subject to the requirements of this section until July 1, 1998:
(i) Title 34, Labor in General;
(ii) Title 34A, Utah Labor Code;
(iii) Title 35A, Utah Workforce Services Code;
(iv) Title 40, Chapter 2, Coal Mines; and
(v) Title 57, Chapter 21, Utah Fair Housing Act.
(b) Any rule described in Subsection (10)(a) that would have expired on or after July 1, 1997 but before July 1, 1998, expires July 1, 1998, unless for that rule the Department of Workforce Services or Labor Commission files:
(i) the notice of review, described in Subsection (3); or
(ii) an extension described in Subsection (6).
Section 1381. Section 63G-3-401, which is renumbered from Section 63-46a-9.5 is renumbered and amended to read:
Part 4. Division of Administrative Rules
[63-46a-9.5]. 63G-3-401. Division of Administrative Rules created -- Appointment of director.
(1) There is created within the Department of Administrative Services the Division of Administrative Rules, to be administered by a director.
(2) The director of administrative rules shall be appointed by the executive director with the approval of the governor.
Section 1382. Section 63G-3-402, which is renumbered from Section 63-46a-10 is renumbered and amended to read:
[63-46a-10
]. 63G-3-402. Division of Administrative Rules -- Duties generally.(1) The Division of Administrative Rules shall:
(a) establish all filing, publication, and hearing procedures necessary to make rules under this chapter;
(b) record in a register the receipt of all agency rules, rule analysis forms, and notices of effective dates;
(c) make the register, copies of all proposed rules, and rulemaking documents available for public inspection;
(d) publish all proposed rules, rule analyses, notices of effective dates, and review notices in the bulletin at least monthly, except that the division may publish the complete text of any proposed rule that the director determines is too long to print or too expensive to publish by reference to the text maintained by the division;
(e) compile, format, number, and index all effective rules in an administrative code, and periodically publish that code and supplements or revisions to it;
(f) publish a digest of all rules and notices contained in the most recent bulletin;
(g) publish at least annually an index of all changes to the administrative code and the effective date of each change;
(h) print, or contract to print, all rulemaking publications the division determines necessary to implement this chapter;
(i) distribute without charge the bulletin and administrative code to state-designated repositories, the Administrative Rules Review Committee, the Office of Legislative Research and General Counsel, and the two houses of the Legislature;
(j) distribute without charge the digest and index to state legislators, agencies, political subdivisions on request, and the Office of Legislative Research and General Counsel;
(k) distribute, at prices covering publication costs, all paper rulemaking publications to all other requesting persons and agencies;
(l) provide agencies assistance in rulemaking; and
(m) administer this chapter and require state agencies to comply with filing, publication, and hearing procedures.
(2) The division may after notifying the agency make nonsubstantive changes to rules filed with the division or published in the bulletin or code by:
(a) implementing a uniform system of formatting, punctuation, capitalization, organization, numbering, and wording;
(b) correcting obvious errors and inconsistencies in punctuation, capitalization, numbering, referencing, and wording;
(c) changing a catchline to more accurately reflect the substance of each section, part, rule, or title;
(d) updating or correcting annotations associated with a section, part, rule, or title; and
(e) merging or determining priority of any amendment, enactment, or repeal to the same rule or section made effective by an agency.
(3) In addition, the division may make the following nonsubstantive changes with the concurrence of the agency:
(a) eliminate duplication within rules;
(b) eliminate obsolete and redundant words; and
(c) correcting defective or inconsistent section and paragraph structure in arrangement of the subject matter of rules.
(4) For nonsubstantive changes made in accordance with Subsection (2) or (3) after publication of the rule in the bulletin, the division shall publish a list of nonsubstantive changes in the bulletin. For each nonsubstantive change, the list shall include:
(a) the affected code citation;
(b) a brief description of the change; and
(c) the date the change was made.
(5) All funds appropriated or collected for publishing the division's publications shall be nonlapsing.
Section 1383. Section 63G-3-403, which is renumbered from Section 63-46a-10.5 is renumbered and amended to read:
[63-46a-10.5
]. 63G-3-403. Repeal and reenactment of Utah Administrative Code.(1) When the director determines that the Utah Administrative Code requires extensive revision and reorganization, the division may repeal the code and reenact a new code according to the requirements of this section.
(2) The division may:
(a) reorganize, reformat, and renumber the code;
(b) require each agency to review its rules and make any organizational or substantive changes according to the requirements of Section [63-46a-6] 63G-3-303; and
(c) require each agency to prepare a brief summary of all substantive changes made by the agency.
(3) The division may make nonsubstantive changes in the code by:
(a) adopting a uniform system of punctuation, capitalization, numbering, and wording;
(b) eliminating duplication;
(c) correcting defective or inconsistent section and paragraph structure in arrangement of the subject matter of rules;
(d) eliminating all obsolete or redundant words;
(e) correcting obvious errors and inconsistencies in punctuation, capitalization, numbering, referencing, and wording;
(f) changing a catchline to more accurately reflect the substance of each section, part, rule, or title;
(g) updating or correcting annotations associated with a section, part, rule, or title; and
(h) merging or determining priority of any amendment, enactment, or repeal to the same rule or section made effective by an agency.
(4) (a) To inform the public about the proposed code reenactment, the division shall publish in the bulletin:
(i) notice of the code reenactment;
(ii) the date, time, and place of a public hearing where members of the public may comment on the proposed reenactment of the code;
(iii) locations where the proposed reenactment of the code may be reviewed; and
(iv) agency summaries of substantive changes in the reenacted code.
(b) To inform the public about substantive changes in agency rules contained in the proposed reenactment, each agency shall:
(i) make the text of their reenacted rules available:
(A) for public review during regular business hours; and
(B) in an electronic version; and
(ii) comply with the requirements of Subsection [63-46a-4] 63G-3-301(8).
(5) The division shall hold a public hearing on the proposed code reenactment no fewer than 30 days nor more than 45 days after the publication required by Subsection (4)(a).
(6) The division shall distribute complete text of the proposed code reenactment without charge to:
(a) state-designated repositories in Utah;
(b) the Administrative Rules Review Committee; and
(c) the Office of Legislative Research and General Counsel.
(7) The former code is repealed and the reenacted code is effective at noon on a date designated by the division that is not fewer than 45 days nor more than 90 days after the publication date required by this section.
(8) Repeal and reenactment of the code meets the requirements of Section [63-46a-9] 63G-3-305 for a review of all agency rules.
Section 1384. Section 63G-3-501, which is renumbered from Section 63-46a-11 is renumbered and amended to read:
Part 5. Legislative Oversight
[63-46a-11]. 63G-3-501. Administrative Rules Review Committee.
(1) (a) There is created an Administrative Rules Review Committee of ten permanent members and four ex officio members.
(b) (i) The committee's permanent members shall be composed of five members of the Senate, appointed by the president of the Senate, and five members of the House, appointed by the speaker of the House, with no more than three senators and three representatives from the same political party.
(ii) The permanent members shall convene at least once each month as a committee to review new agency rules, amendments to existing agency rules, and repeals of existing agency rules. Meetings may be suspended at the discretion of the committee chairs.
(iii) Members shall serve for two-year terms or until their successors are appointed.
(iv) A vacancy exists whenever a committee member ceases to be a member of the Legislature, or when a member resigns from the committee. Vacancies shall be filled by the appointing authority, and the replacement shall serve out the unexpired term.
(c) When the committee reviews existing rules, the committee's permanent members shall invite the Senate and House chairmen of the standing committee and the Senate and House chairmen of the appropriation subcommittee that have jurisdiction over the agency whose existing rules are being reviewed to participate as nonvoting, ex officio members with the committee.
(d) Three representatives and three senators from the permanent members are a quorum for the transaction of business at any meeting.
(2) Each agency rule as defined in Section [63-46a-2] 63G-3-102 shall be submitted to the committee at the same time public notice is given under Section [63-46a-4] 63G-3-301.
(3) (a) The committee shall exercise continuous oversight of the process of rulemaking.
(b) The committee shall examine rules submitted by each agency to determine:
(i) whether or not they are authorized by statute;
(ii) whether or not they comply with legislative intent;
(iii) their impact on the economy and the government operations of the state and local political subdivisions; and
(iv) their impact on affected persons.
(c) To carry out these duties, the committee may examine any other issues that it considers necessary. The committee may also notify and refer rules to the chairmen of the interim committee which has jurisdiction over a particular agency when the committee determines that an issue involved in an agency's rules may be more appropriately addressed by that committee.
(d) In reviewing the rules, the committee shall follow generally accepted principles of statutory construction.
(4) The committee may request that the Office of the Legislative Fiscal Analyst prepare a fiscal note on any rule.
(5) In order to accomplish its oversight functions, the committee has all the powers granted to legislative interim committees as set forth in Section 36-12-11.
(6) (a) The committee may prepare written findings of its review of each rule and may include any recommendations, including legislative action.
(b) The committee shall provide to the agency that enacted the rule:
(i) its findings, if any; and
(ii) a request that the agency notify the committee of any changes it makes in the rule.
(c) The committee shall provide its findings to any member of the Legislature and to any person affected by the rule who requests the findings.
(d) The committee shall provide its findings to the presiding officers of both the House and the Senate, Senate and House chairs of the standing committee, and the Senate and House chairs of the Appropriation Subcommittee that have jurisdiction over the agency whose rules are the subject of the findings.
(7) (a) The committee may submit a report on its review of state agency rules to each member of the Legislature at each regular session.
(b) The report shall include:
(i) the findings and recommendations made by the committee under Subsection (6);
(ii) any action taken by an agency in response to committee recommendations; and
(iii) any recommendations by the committee for legislation.
Section 1385. Section 63G-3-502, which is renumbered from Section 63-46a-11.5 is renumbered and amended to read:
[63-46a-11.5
]. 63G-3-502. Legislative reauthorization of agency rules -- Extension of rules by governor.(1) All grants of rulemaking power from the Legislature to a state agency in any statute are made subject to the provisions of this section.
(2) (a) Except as provided in Subsection (2)(b), every agency rule that is in effect on February 28 of any calendar year expires on May 1 of that year unless it has been reauthorized by the Legislature.
(b) Notwithstanding the provisions of Subsection (2)(a), an agency's rules do not expire if:
(i) the rule is explicitly mandated by a federal law or regulation; or
(ii) a provision of Utah's constitution vests the agency with specific constitutional authority to regulate.
(3) (a) The Administrative Rules Review Committee shall have omnibus legislation prepared for consideration by the Legislature during its annual general session.
(b) The omnibus legislation shall be substantially in the following form: "All rules of Utah state agencies are reauthorized except for the following:".
(c) Before sending the legislation to the governor for his action, the Administrative Rules Review Committee may send a letter to the governor and to the agency explaining specifically why the committee believes any rule should not be reauthorized.
(d) For the purpose of this section, the entire rule, a single section, or any complete paragraph of a rule may be excepted for reauthorization in the omnibus legislation considered by the Legislature.
(4) The Legislature's reauthorization of a rule by legislation does not constitute legislative approval of the rule, nor is it admissible in any proceeding as evidence of legislative intent.
(5) (a) If an agency believes that a rule that has not been reauthorized by the Legislature or that will be allowed to expire should continue in full force and effect and is a rule within their authorized rulemaking power, the agency may seek the governor's declaration extending the rule beyond the expiration date.
(b) In seeking the extension, the agency shall submit a petition to the governor that affirmatively states:
(i) that the rule is necessary; and
(ii) a citation to the source of its authority to make the rule.
(c) (i) If the governor finds that the necessity does exist, and that the agency has the authority to make the rule, he may declare the rule to be extended by publishing that declaration in the Administrative Rules Bulletin on or before April 15 of that year.
(ii) The declaration shall set forth the rule to be extended, the reasons the extension is necessary, and a citation to the source of the agency's authority to make the rule.
(d) If the omnibus bill required by Subsection (3) fails to pass both houses of the Legislature or is found to have a technical legal defect preventing reauthorization of administrative rules intended to be reauthorized by the Legislature, the governor may declare all rules to be extended by publishing a single declaration in the Administrative Rules Bulletin on or before June 15 without meeting requirements of Subsections (5)(b) and (c).
Section 1386. Section 63G-3-601, which is renumbered from Section 63-46a-12 is renumbered and amended to read:
Part 6. Judicial Review
[63-46a-12]. 63G-3-601. Interested parties -- Petition for agency action.
(1) As used in this section, "initiate rulemaking proceedings" means the filing, for the purposes of publication in accordance with Subsection [63-46a-4] 63G-3-301(4), of an agency's proposed rule to implement a petition for the making, amendment, or repeal of a rule as provided in this section.
(2) An interested person may petition an agency to request the making, amendment, or repeal of a rule.
(3) The division shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition.
(4) A statement shall accompany the proposed rule, or proposed amendment or repeal of a rule, demonstrating that the proposed action is within the jurisdiction of the agency and appropriate to the powers of the agency.
(5) Within 60 days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for the denial, or initiate rulemaking proceedings.
(6) (a) If the petition is submitted to a board that has been granted rulemaking authority by the Legislature, the board shall, within 45 days of the submission of the petition, place the petition on its agenda for review.
(b) Within 80 days of the submission of the petition, the board shall either:
(i) deny the petition in writing stating its reasons for denial; or
(ii) initiate rulemaking proceedings.
(7) If the agency or board has not provided the petitioner written notice that the agency has denied the petition or initiated rulemaking proceedings within the time limitations specified in Subsection (5) or (6) respectively, the petitioner may seek a writ of mandamus in state district court.
Section 1387. Section 63G-3-602, which is renumbered from Section 63-46a-12.1 is renumbered and amended to read:
[63-46a-12.1
]. 63G-3-602. Judicial challenge to administrative rules.(1) (a) Any person aggrieved by a rule may obtain judicial review of the rule by filing a complaint with the county clerk in the district court where the person resides or in the district court in Salt Lake County.
(b) Any person aggrieved by an agency's failure to comply with Section [63-46a-3] 63G-3-201 may obtain judicial review of the agency's failure to comply by filing a complaint with the clerk of the district court where the person resides or in the district court in Salt Lake County.
(2) (a) Except as provided in Subsection (2)(b), a person seeking judicial review under this section shall exhaust that person's administrative remedies by complying with the requirements of Section [63-46a-12] 63G-3-601 before filing the complaint.
(b) When seeking judicial review of a rule, the person need not exhaust that person's administrative remedies if:
(i) less than six months has passed since the date that the rule became effective and the person had submitted verbal or written comments on the rule to the agency during the public comment period;
(ii) a statute granting rulemaking authority expressly exempts rules made under authority of that statute from compliance with Section [63-46a-12] 63G-3-601; or
(iii) compliance with Section [63-46a-12] 63G-3-601 would cause the person irreparable harm.
(3) (a) In addition to the information required by the Utah Rules of Civil Procedure, a complaint filed under this section shall contain:
(i) the name and mailing address of the plaintiff;
(ii) the name and mailing address of the defendant agency;
(iii) the name and mailing address of any other party joined in the action as a defendant;
(iv) the text of the rule or proposed rule, if any;
(v) an allegation that the person filing the complaint has either exhausted the administrative remedies by complying with Section [63-46a-12] 63G-3-601 or met the requirements for waiver of exhaustion of administrative remedies established by Subsection (2)(b);
(vi) the relief sought; and
(vii) factual and legal allegations supporting the relief sought.
(b) (i) The plaintiff shall serve a summons and a copy of the complaint as required by the Utah Rules of Civil Procedure.
(ii) The defendants shall file a responsive pleading as required by the Utah Rules of Civil Procedures.
(iii) The agency shall file the administrative record of the rule, if any, with its responsive pleading.
(4) The district court may grant relief to the petitioner by:
(a) declaring the rule invalid, if the court finds that:
(i) the rule violates constitutional or statutory law or the agency does not have legal authority to make the rule;
(ii) the rule is not supported by substantial evidence when viewed in light of the whole administrative record; or
(iii) the agency did not follow proper rulemaking procedure;
(b) declaring the rule nonapplicable to the petitioner;
(c) remanding the matter to the agency for compliance with proper rulemaking procedures or further fact-finding;
(d) ordering the agency to comply with Section [63-46a-3] 63G-3-201;
(e) issuing a judicial stay or injunction to enjoin the agency from illegal action or action that would cause irreparable harm to the petitioner; or
(f) any combination of Subsections (4)(a) through (e).
(5) If the plaintiff meets the requirements of Subsection (2)(b), the district court may review and act on a complaint under this section whether or not the plaintiff has requested the agency review under Section [63-46a-12] 63G-3-601.
Section 1388. Section 63G-3-603, which is renumbered from Section 63-46a-14 is renumbered and amended to read:
[63-46a-14
]. 63G-3-603. Time for contesting a rule -- Statute of limitations.(1) A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this chapter shall commence within two years of the effective date of the rule.
(2) A proceeding to contest any rule on the ground of not being supported by substantial evidence when viewed in light of the whole administrative record shall commence within four years of the effective date of the challenged action.
(3) A proceeding to contest any rule on the basis that a change to the rule made under Subsection [63-46a-10] 63G-3-402(2) or (3) substantively changed the rule shall be commenced within two years of the date the change was made.
Section 1389. Section 63G-3-701, which is renumbered from Section 63-46a-16 is renumbered and amended to read:
Part 7. Official Compilation of Administrative Rules
[63-46a-16]. 63G-3-701. Utah Administrative Code as official compilation of rules -- Judicial notice.
The code shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the administrative law of the state of Utah and as an authorized compilation of the administrative law of Utah. All courts shall take judicial notice of the code and its provisions.
Section 1390. Section 63G-3-702, which is renumbered from Section 63-46a-9.6 is renumbered and amended to read:
[63-46a-9.6
]. 63G-3-702. Utah Administrative Code -- Organization -- Official compilation.(1) The Utah Administrative Code shall be divided into three parts:
(a) titles, whose number shall begin with "R";
(b) rules; and
(c) sections.
(2) All sections contained in the code are referenced by a three-part number indicating its location in the code.
(3) The division shall maintain the official compilation of the code and is the state-designated repository for administrative rules. If a dispute arises in which there is more than one version of a rule, the latest effective version on file with the division is considered the correct, current version.
Section 1391. Section 63G-4-101, which is renumbered from Section 63-46b-0.5 is renumbered and amended to read:
CHAPTER 4. ADMINISTRATIVE PROCEDURES ACT
Part 1. General Provisions
[63-46b-0.5]. 63G-4-101. Title.
This [act] chapter is known as the "Administrative Procedures Act."
Section 1392. Section 63G-4-102, which is renumbered from Section 63-46b-1 is renumbered and amended to read:
[63-46b-1
]. 63G-4-102. Scope and applicability of chapter.(1) Except as set forth in Subsection (2), and except as otherwise provided by a statute superseding provisions of this chapter by explicit reference to this chapter, the provisions of this chapter apply to every agency of the state and govern:
(a) state agency action that determines the legal rights, duties, privileges, immunities, or other legal interests of an identifiable person, including agency action to grant, deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license; and
(b) judicial review of the action.
(2) This chapter does not govern:
(a) the procedure for making agency rules, or judicial review of the procedure or rules;
(b) the issuance of a notice of a deficiency in the payment of a tax, the decision to waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the issuance of a tax assessment, except that this chapter governs an agency action commenced by a taxpayer or by another person authorized by law to contest the validity or correctness of the action;
(c) state agency action relating to extradition, to the granting of a pardon or parole, a commutation or termination of a sentence, or to the rescission, termination, or revocation of parole or probation, to the discipline of, resolution of a grievance of, supervision of, confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or judicial review of the action;
(d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a student or teacher in a school or educational institution, or judicial review of the action;
(e) an application for employment and internal personnel action within an agency concerning its own employees, or judicial review of the action;
(f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah Occupational Safety and Health Act, and Title 58, Chapter 3a, Architects Licensing Act, Chapter 11a, Cosmetologist/Barber, Esthetician, Electrologist, and Nail Technician Licensing Act, Chapter 17b, Pharmacy Practice Act, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act, Chapter 53, Landscape Architects Licensing Act, Chapter 55, Utah Construction Trades Licensing Act, Chapter 63, Security Personnel Licensing Act, and Chapter 76, Professional Geologist Licensing Act, except that this chapter governs an agency action commenced by the employer, licensee, or other person authorized by law to contest the validity or correctness of the citation or assessment;
(g) state agency action relating to management of state funds, the management and disposal of school and institutional trust land assets, and contracts for the purchase or sale of products, real property, supplies, goods, or services by or for the state, or by or for an agency of the state, except as provided in those contracts, or judicial review of the action;
(h) state agency action under Title 7, Chapter 1, Article 3, Powers and Duties of Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or Holding Companies, and [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, or judicial review of the action;
(i) the initial determination of a person's eligibility for unemployment benefits, the initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers' Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial determination of a person's unemployment tax liability;
(j) state agency action relating to the distribution or award of a monetary grant to or between governmental units, or for research, development, or the arts, or judicial review of the action;
(k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19, Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19, Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act, Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act, except that this chapter governs an agency action commenced by a person authorized by law to contest the validity or correctness of the notice or order;
(l) state agency action, to the extent required by federal statute or regulation, to be conducted according to federal procedures;
(m) the initial determination of a person's eligibility for government or public assistance benefits;
(n) state agency action relating to wildlife licenses, permits, tags, and certificates of registration;
(o) a license for use of state recreational facilities;
(p) state agency action under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, except as provided in Section [63-2-603] 63G-2-603;
(q) state agency action relating to the collection of water commissioner fees and delinquency penalties, or judicial review of the action;
(r) state agency action relating to the installation, maintenance, and repair of headgates, caps, values, or other water controlling works and weirs, flumes, meters, or other water measuring devices, or judicial review of the action;
(s) the issuance and enforcement of an initial order under Section 73-2-25;
(t) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1; and
(ii) an action taken by the Division of Securities pursuant to a hearing conducted under Section 61-1-11.1, including a determination regarding the fairness of an issuance or exchange of securities described in Subsection 61-1-11.1(1); and
(u) state agency action relating to water well driller licenses, water well drilling permits, water well driller registration, or water well drilling construction standards, or judicial review of the action.
(3) This chapter does not affect a legal remedy otherwise available to:
(a) compel an agency to take action; or
(b) challenge an agency's rule.
(4) This chapter does not preclude an agency, prior to the beginning of an adjudicative proceeding, or the presiding officer during an adjudicative proceeding from:
(a) requesting or ordering a conference with parties and interested persons to:
(i) encourage settlement;
(ii) clarify the issues;
(iii) simplify the evidence;
(iv) facilitate discovery; or
(v) expedite the proceeding; or
(b) granting a timely motion to dismiss or for summary judgment if the requirements of Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party, except to the extent that the requirements of those rules are modified by this chapter.
(5) (a) A declaratory proceeding authorized by Section [63-46b-21] 63G-4-503 is not governed by this chapter, except as explicitly provided in that section.
(b) Judicial review of a declaratory proceeding authorized by Section [63-46b-21] 63G-4-503 is governed by this chapter.
(6) This chapter does not preclude an agency from enacting a rule affecting or governing an adjudicative proceeding or from following the rule, if the rule is enacted according to the procedures outlined in [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and if the rule conforms to the requirements of this chapter.
(7) (a) If the attorney general issues a written determination that a provision of this chapter would result in the denial of funds or services to an agency of the state from the federal government, the applicability of the provision to that agency shall be suspended to the extent necessary to prevent the denial.
(b) The attorney general shall report the suspension to the Legislature at its next session.
(8) Nothing in this chapter may be interpreted to provide an independent basis for jurisdiction to review final agency action.
(9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good cause shown, from lengthening or shortening a time period prescribed in this chapter, except the time period established for judicial review.
Section 1393. Section 63G-4-103, which is renumbered from Section 63-46b-2 is renumbered and amended to read:
[63-46b-2
]. 63G-4-103. Definitions.(1) As used in this chapter:
(a) "Adjudicative proceeding" means an agency action or proceeding described in Section [63-46b-1] 63G-4-102.
(b) "Agency" means a board, commission, department, division, officer, council, office, committee, bureau, or other administrative unit of this state, including the agency head, agency employees, or other persons acting on behalf of or under the authority of the agency head, but does not mean the Legislature, the courts, the governor, any political subdivision of the state, or any administrative unit of a political subdivision of the state.
(c) "Agency head" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by statute.
(d) "Declaratory proceeding" means a proceeding authorized and governed by Section [63-46b-21] 63G-4-503.
(e) "License" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by statute.
(f) "Party" means the agency or other person commencing an adjudicative proceeding, all respondents, all persons permitted by the presiding officer to intervene in the proceeding, and all persons authorized by statute or agency rule to participate as parties in an adjudicative proceeding.
(g) "Person" means an individual, group of individuals, partnership, corporation, association, political subdivision or its units, governmental subdivision or its units, public or private organization or entity of any character, or another agency.
(h) (i) "Presiding officer" means an agency head, or an individual or body of individuals designated by the agency head, by the agency's rules, or by statute to conduct an adjudicative proceeding.
(ii) If fairness to the parties is not compromised, an agency may substitute one presiding officer for another during any proceeding.
(iii) A person who acts as a presiding officer at one phase of a proceeding need not continue as presiding officer through all phases of a proceeding.
(i) "Respondent" means a person against whom an adjudicative proceeding is initiated, whether by an agency or any other person.
(j) "Superior agency" means an agency required or authorized by law to review the orders of another agency.
(2) This section does not prohibit an agency from designating by rule the names or titles of the agency head or the presiding officers with responsibility for adjudicative proceedings before the agency.
Section 1394. Section 63G-4-104, which is renumbered from Section 63-46b-2.1 is renumbered and amended to read:
[63-46b-2.1
]. 63G-4-104. Bases for certain recommendations and decisions limited.(1) Except as provided in Subsection (2), no agency may recommend or rule on the custody, placement, including foster placement, or other disposition alternative for a minor, or the termination of parental rights, based on the fact that a parent or guardian of the minor lawfully does one or more of the following:
(a) legally possesses or uses a firearm or other weapon;
(b) espouses particular religious beliefs; or
(c) schools the minor or other minors outside the public education system or is otherwise sympathetic to schooling a minor outside the public education system.
(2) Subsection (1) does not prohibit a recommendation or ruling based on the compatibility of a minor with a particular custody, placement, or other disposition alternative as determined by the presence of any of the factors in Subsections (1)(a) through (1)(c).
Section 1395. Section 63G-4-105, which is renumbered from Section 63-46b-22 is renumbered and amended to read:
[63-46b-22
]. 63G-4-105. Transition procedures.(1) The procedures for agency action, agency review, and judicial review contained in this chapter are applicable to all agency adjudicative proceedings commenced by or before an agency on or after January 1, 1988.
(2) Statutes and rules governing agency action, agency review, and judicial review that are in effect on December 31, 1987, govern all agency adjudicative proceedings commenced by or before an agency on or before December 31, 1987, even if those proceedings are still pending before an agency or a court on January 1, 1988.
Section 1396. Section 63G-4-201, which is renumbered from Section 63-46b-3 is renumbered and amended to read:
Part 2. Adjudicative Proceedings
[63-46b-3]. 63G-4-201. Commencement of adjudicative proceedings.
(1) Except as otherwise permitted by Section [63-46b-20] 63G-4-502, all adjudicative proceedings shall be commenced by either:
(a) a notice of agency action, if proceedings are commenced by the agency; or
(b) a request for agency action, if proceedings are commenced by persons other than the agency.
(2) A notice of agency action shall be filed and served according to the following requirements:
(a) The notice of agency action shall be in writing, signed by a presiding officer, and shall include:
(i) the names and mailing addresses of all persons to whom notice is being given by the presiding officer, and the name, title, and mailing address of any attorney or employee who has been designated to appear for the agency;
(ii) the agency's file number or other reference number;
(iii) the name of the adjudicative proceeding;
(iv) the date that the notice of agency action was mailed;
(v) a statement of whether the adjudicative proceeding is to be conducted informally according to the provisions of rules adopted under Sections [63-46b-4] 63G-4-202 and [63-46b-5] 63G-4-203, or formally according to the provisions of Sections [63-46b-6] 63G-4-204 through [63-46b-11] 63G-4-209;
(vi) if the adjudicative proceeding is to be formal, a statement that each respondent must file a written response within 30 days of the mailing date of the notice of agency action;
(vii) if the adjudicative proceeding is to be formal, or if a hearing is required by statute or rule, a statement of the time and place of any scheduled hearing, a statement of the purpose for which the hearing is to be held, and a statement that a party who fails to attend or participate in the hearing may be held in default;
(viii) if the adjudicative proceeding is to be informal and a hearing is required by statute or rule, or if a hearing is permitted by rule and may be requested by a party within the time prescribed by rule, a statement that the parties may request a hearing within the time provided by the agency's rules;
(ix) a statement of the legal authority and jurisdiction under which the adjudicative proceeding is to be maintained;
(x) the name, title, mailing address, and telephone number of the presiding officer; and
(xi) a statement of the purpose of the adjudicative proceeding and, to the extent known by the presiding officer, the questions to be decided.
(b) When adjudicative proceedings are commenced by the agency, the agency shall:
(i) mail the notice of agency action to each party;
(ii) publish the notice of agency action, if required by statute; and
(iii) mail the notice of agency action to any other person who has a right to notice under statute or rule.
(3) (a) Where the law applicable to the agency permits persons other than the agency to initiate adjudicative proceedings, that person's request for agency action shall be in writing and signed by the person invoking the jurisdiction of the agency, or by that person's representative, and shall include:
(i) the names and addresses of all persons to whom a copy of the request for agency action is being sent;
(ii) the agency's file number or other reference number, if known;
(iii) the date that the request for agency action was mailed;
(iv) a statement of the legal authority and jurisdiction under which agency action is requested;
(v) a statement of the relief or action sought from the agency; and
(vi) a statement of the facts and reasons forming the basis for relief or agency action.
(b) The person requesting agency action shall file the request with the agency and shall mail a copy to each person known to have a direct interest in the requested agency action.
(c) An agency may, by rule, prescribe one or more forms eliciting the information required by Subsection (3)(a) to serve as the request for agency action when completed and filed by the person requesting agency action.
(d) The presiding officer shall promptly review a request for agency action and shall:
(i) notify the requesting party in writing that the request is granted and that the adjudicative proceeding is completed;
(ii) notify the requesting party in writing that the request is denied and, if the proceeding is a formal adjudicative proceeding, that the party may request a hearing before the agency to challenge the denial; or
(iii) notify the requesting party that further proceedings are required to determine the agency's response to the request.
(e) (i) Any notice required by Subsection (3)(d)(ii) shall contain the information required by Subsection [63-46b-5] 63G-4-203(1)(i) in addition to disclosure required by Subsection (3)(d)(ii).
(ii) The agency shall mail any notice required by Subsection (3)(d) to all parties, except that any notice required by Subsection (3)(d)(iii) may be published when publication is required by statute.
(iii) The notice required by Subsection (3)(d)(iii) shall:
(A) give the agency's file number or other reference number;
(B) give the name of the proceeding;
(C) designate whether the proceeding is one of a category to be conducted informally according to the provisions of rules enacted under Sections [63-46b-4] 63G-4-202 and [63-46b-5] 63G-4-203, with citation to the applicable rule authorizing that designation, or formally according to Sections [63-46b-6] 63G-4-204 through [63-46b-11] 63G-4-209;
(D) in the case of a formal adjudicative proceeding, and where respondent parties are known, state that a written response must be filed within 30 days of the date of the agency's notice if mailed, or within 30 days of the last publication date of the agency's notice, if published;
(E) if the adjudicative proceeding is to be formal, or if a hearing is to be held in an informal adjudicative proceeding, state the time and place of any scheduled hearing, the purpose for which the hearing is to be held, and that a party who fails to attend or participate in a scheduled and noticed hearing may be held in default;
(F) if the adjudicative proceeding is to be informal, and a hearing is required by statute or rule, or if a hearing is permitted by rule and may be requested by a party within the time prescribed by rule, state the parties' right to request a hearing and the time within which a hearing may be requested under the agency's rules; and
(G) give the name, title, mailing address, and telephone number of the presiding officer.
(4) When initial agency determinations or actions are not governed by this chapter, but agency and judicial review of those initial determinations or actions are subject to the provisions of this chapter, the request for agency action seeking review must be filed with the agency within the time prescribed by the agency's rules.
(5) For designated classes of adjudicative proceedings, an agency may, by rule, provide for a longer response time than allowed by this section, and may provide for a shorter response time if required or permitted by applicable federal law.
(6) Unless the agency provides otherwise by rule or order, an application for a package agency, license, permit, or certificate of approval filed under authority of Title 32A, Alcoholic Beverage Control Act, is not considered to be a request for agency action under this chapter.
(7) If the purpose of the adjudicative proceeding is to award a license or other privilege as to which there are multiple competing applicants, the agency may, by rule or order, conduct a single adjudicative proceeding to determine the award of that license or privilege.
Section 1397. Section 63G-4-202, which is renumbered from Section 63-46b-4 is renumbered and amended to read:
[63-46b-4
]. 63G-4-202. Designation of adjudicative proceedings as informal -- Standards -- Undesignated proceedings formal.(1) The agency may, by rule, designate categories of adjudicative proceedings to be conducted informally according to the procedures set forth in rules enacted under the authority of this chapter if:
(a) the use of the informal procedures does not violate any procedural requirement imposed by a statute other than this chapter;
(b) in the view of the agency, the rights of the parties to the proceedings will be reasonably protected by the informal procedures;
(c) in the view of the agency, the agency's administrative efficiency will be enhanced by categorizations; and
(d) the cost of formal adjudicative proceedings outweighs the potential benefits to the public of a formal adjudicative proceeding.
(2) Subject to the provisions of Subsection (3), all agency adjudicative proceedings not specifically designated as informal proceedings by the agency's rules shall be conducted formally in accordance with the requirements of this chapter.
(3) Any time before a final order is issued in any adjudicative proceeding, the presiding officer may convert a formal adjudicative proceeding to an informal adjudicative proceeding, or an informal adjudicative proceeding to a formal adjudicative proceeding if:
(a) conversion of the proceeding is in the public interest; and
(b) conversion of the proceeding does not unfairly prejudice the rights of any party.
Section 1398. Section 63G-4-203, which is renumbered from Section 63-46b-5 is renumbered and amended to read:
[63-46b-5
]. 63G-4-203. Procedures for informal adjudicative proceedings.(1) If an agency enacts rules designating one or more categories of adjudicative proceedings as informal adjudicative proceedings, the agency shall, by rule, prescribe procedures for informal adjudicative proceedings that include the following:
(a) Unless the agency by rule provides for and requires a response, no answer or other pleading responsive to the allegations contained in the notice of agency action or the request for agency action need be filed.
(b) The agency shall hold a hearing if a hearing is required by statute or rule, or if a hearing is permitted by rule and is requested by a party within the time prescribed by rule.
(c) In any hearing, the parties named in the notice of agency action or in the request for agency action shall be permitted to testify, present evidence, and comment on the issues.
(d) Hearings will be held only after timely notice to all parties.
(e) Discovery is prohibited, but the agency may issue subpoenas or other orders to compel production of necessary evidence.
(f) All parties shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, to the extent permitted by law.
(g) Intervention is prohibited, except that the agency may enact rules permitting intervention where a federal statute or rule requires that a state permit intervention.
(h) All hearings shall be open to all parties.
(i) Within a reasonable time after the close of an informal adjudicative proceeding, the presiding officer shall issue a signed order in writing that states the following:
(i) the decision;
(ii) the reasons for the decision;
(iii) a notice of any right of administrative or judicial review available to the parties; and
(iv) the time limits for filing an appeal or requesting a review.
(j) The presiding officer's order shall be based on the facts appearing in the agency's files and on the facts presented in evidence at any hearings.
(k) A copy of the presiding officer's order shall be promptly mailed to each of the parties.
(2) (a) The agency may record any hearing.
(b) Any party, at his own expense, may have a reporter approved by the agency prepare a transcript from the agency's record of the hearing.
(3) Nothing in this section restricts or precludes any investigative right or power given to an agency by another statute.
Section 1399. Section 63G-4-204, which is renumbered from Section 63-46b-6 is renumbered and amended to read:
[63-46b-6
]. 63G-4-204. Procedures for formal adjudicative proceedings -- Responsive pleadings.(1) In all formal adjudicative proceedings, unless modified by rule according to Subsection [63-46b-3] 63G-4-201(5), the respondent, if any, shall file and serve a written response signed by the respondent or the respondent's representative within 30 days of the mailing date or last date of publication of the notice of agency action or the notice under Subsection [63-46b-3] 63G-4-201(3)(d), which shall include:
(a) the agency's file number or other reference number;
(b) the name of the adjudicative proceeding;
(c) a statement of the relief that the respondent seeks;
(d) a statement of the facts; and
(e) a statement summarizing the reasons that the relief requested should be granted.
(2) The respondent shall send a copy of the response filed under Subsection (1) to each party.
(3) The presiding officer, or the agency by rule, may permit or require pleadings in addition to the notice of agency action, the request for agency action, and the response. All documents permitted or required to be filed shall be filed with the agency and one copy shall be sent to each party.
Section 1400. Section 63G-4-205, which is renumbered from Section 63-46b-7 is renumbered and amended to read:
[63-46b-7
]. 63G-4-205. Procedures for formal adjudicative proceedings -- Discovery and subpoenas.(1) In formal adjudicative proceedings, the agency may, by rule, prescribe means of discovery adequate to permit the parties to obtain all relevant information necessary to support their claims or defenses. If the agency does not enact rules under this section, the parties may conduct discovery according to the Utah Rules of Civil Procedure.
(2) Subpoenas and other orders to secure the attendance of witnesses or the production of evidence in formal adjudicative proceedings shall be issued by the presiding officer when requested by any party, or may be issued by the presiding officer on his own motion.
(3) Nothing in this section restricts or precludes any investigative right or power given to an agency by another statute.
Section 1401. Section 63G-4-206, which is renumbered from Section 63-46b-8 is renumbered and amended to read:
[63-46b-8
]. 63G-4-206. Procedures for formal adjudicative proceedings -- Hearing procedure.(1) Except as provided in Subsections [63-46b-3] 63G-4-201(3)(d)(i) and (ii), in all formal adjudicative proceedings, a hearing shall be conducted as follows:
(a) The presiding officer shall regulate the course of the hearing to obtain full disclosure of relevant facts and to afford all the parties reasonable opportunity to present their positions.
(b) On his own motion or upon objection by a party, the presiding officer:
(i) may exclude evidence that is irrelevant, immaterial, or unduly repetitious;
(ii) shall exclude evidence privileged in the courts of Utah;
(iii) may receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document; and
(iv) may take official notice of any facts that could be judicially noticed under the Utah Rules of Evidence, of the record of other proceedings before the agency, and of technical or scientific facts within the agency's specialized knowledge.
(c) The presiding officer may not exclude evidence solely because it is hearsay.
(d) The presiding officer shall afford to all parties the opportunity to present evidence, argue, respond, conduct cross-examination, and submit rebuttal evidence.
(e) The presiding officer may give persons not a party to the adjudicative proceeding the opportunity to present oral or written statements at the hearing.
(f) All testimony presented at the hearing, if offered as evidence to be considered in reaching a decision on the merits, shall be given under oath.
(g) The hearing shall be recorded at the agency's expense.
(h) Any party, at his own expense, may have a person approved by the agency prepare a transcript of the hearing, subject to any restrictions that the agency is permitted by statute to impose to protect confidential information disclosed at the hearing.
(i) All hearings shall be open to all parties.
(2) This section does not preclude the presiding officer from taking appropriate measures necessary to preserve the integrity of the hearing.
Section 1402. Section 63G-4-207, which is renumbered from Section 63-46b-9 is renumbered and amended to read:
[63-46b-9
]. 63G-4-207. Procedures for formal adjudicative proceedings -- Intervention.(1) Any person not a party may file a signed, written petition to intervene in a formal adjudicative proceeding with the agency. The person who wishes to intervene shall mail a copy of the petition to each party. The petition shall include:
(a) the agency's file number or other reference number;
(b) the name of the proceeding;
(c) a statement of facts demonstrating that the petitioner's legal rights or interests are substantially affected by the formal adjudicative proceeding, or that the petitioner qualifies as an intervenor under any provision of law; and
(d) a statement of the relief that the petitioner seeks from the agency.
(2) The presiding officer shall grant a petition for intervention if the presiding officer determines that:
(a) the petitioner's legal interests may be substantially affected by the formal adjudicative proceeding; and
(b) the interests of justice and the orderly and prompt conduct of the adjudicative proceedings will not be materially impaired by allowing the intervention.
(3) (a) Any order granting or denying a petition to intervene shall be in writing and mailed to the petitioner and each party.
(b) An order permitting intervention may impose conditions on the intervenor's participation in the adjudicative proceeding that are necessary for a just, orderly, and prompt conduct of the adjudicative proceeding.
(c) The presiding officer may impose the conditions at any time after the intervention.
Section 1403. Section 63G-4-208, which is renumbered from Section 63-46b-10 is renumbered and amended to read:
[63-46b-10
]. 63G-4-208. Procedures for formal adjudicative proceedings -- Orders.In formal adjudicative proceedings:
(1) Within a reasonable time after the hearing, or after the filing of any posthearing documents permitted by the presiding officer, or within the time required by any applicable statute or rule of the agency, the presiding officer shall sign and issue an order that includes:
(a) a statement of the presiding officer's findings of fact based exclusively on the evidence of record in the adjudicative proceedings or on facts officially noted;
(b) a statement of the presiding officer's conclusions of law;
(c) a statement of the reasons for the presiding officer's decision;
(d) a statement of any relief ordered by the agency;
(e) a notice of the right to apply for reconsideration;
(f) a notice of any right to administrative or judicial review of the order available to aggrieved parties; and
(g) the time limits applicable to any reconsideration or review.
(2) The presiding officer may use the presiding officer's experience, technical competence, and specialized knowledge to evaluate the evidence.
(3) A finding of fact that was contested may not be based solely on hearsay evidence unless that evidence is admissible under the Utah Rules of Evidence.
(4) This section does not preclude the presiding officer from issuing interim orders to:
(a) notify the parties of further hearings;
(b) notify the parties of provisional rulings on a portion of the issues presented; or
(c) otherwise provide for the fair and efficient conduct of the adjudicative proceeding.
Section 1404. Section 63G-4-209, which is renumbered from Section 63-46b-11 is renumbered and amended to read:
[63-46b-11
]. 63G-4-209. Default.(1) The presiding officer may enter an order of default against a party if:
(a) a party in an informal adjudicative proceeding fails to participate in the adjudicative proceeding;
(b) a party to a formal adjudicative proceeding fails to attend or participate in a properly scheduled hearing after receiving proper notice; or
(c) a respondent in a formal adjudicative proceeding fails to file a response under Section [63-46b-6] 63G-4-204.
(2) An order of default shall include a statement of the grounds for default and shall be mailed to all parties.
(3) (a) A defaulted party may seek to have the agency set aside the default order, and any order in the adjudicative proceeding issued subsequent to the default order, by following the procedures outlined in the Utah Rules of Civil Procedure.
(b) A motion to set aside a default and any subsequent order shall be made to the presiding officer.
(c) A defaulted party may seek agency review under Section [63-46b-12] 63G-4-301, or reconsideration under Section [63-46b-13] 63G-4-302, only on the decision of the presiding officer on the motion to set aside the default.
(4) (a) In an adjudicative proceeding begun by the agency, or in an adjudicative proceeding begun by a party that has other parties besides the party in default, the presiding officer shall, after issuing the order of default, conduct any further proceedings necessary to complete the adjudicative proceeding without the participation of the party in default and shall determine all issues in the adjudicative proceeding, including those affecting the defaulting party.
(b) In an adjudicative proceeding that has no parties other than the agency and the party in default, the presiding officer shall, after issuing the order of default, dismiss the proceeding.
Section 1405. Section 63G-4-301, which is renumbered from Section 63-46b-12 is renumbered and amended to read:
Part 3. Agency Review
[63-46b-12]. 63G-4-301. Agency review -- Procedure.
(1) (a) If a statute or the agency's rules permit parties to any adjudicative proceeding to seek review of an order by the agency or by a superior agency, the aggrieved party may file a written request for review within 30 days after the issuance of the order with the person or entity designated for that purpose by the statute or rule.
(b) The request shall:
(i) be signed by the party seeking review;
(ii) state the grounds for review and the relief requested;
(iii) state the date upon which it was mailed; and
(iv) be mailed to the presiding officer and to each party.
(2) (a) Within 15 days of the mailing date of the request for review, or within the time period provided by agency rule, whichever is longer, any party may file a response with the person designated by statute or rule to receive the response.
(b) The party who files a response under Subsection (2)(a) shall mail a copy of the response to each of the parties and to the presiding officer.
(3) If a statute or the agency's rules require review of an order by the agency or a superior agency, the agency or superior agency shall review the order within a reasonable time or within the time required by statute or the agency's rules.
(4) To assist in review, the agency or superior agency may by order or rule permit the parties to file briefs or other documents, or to conduct oral argument.
(5) Notice of hearings on review shall be mailed to all parties.
(6) (a) Within a reasonable time after the filing of any response, other filings, or oral argument, or within the time required by statute or applicable rules, the agency or superior agency shall issue a written order on review.
(b) The order on review shall be signed by the agency head or by a person designated by the agency for that purpose and shall be mailed to each party.
(c) The order on review shall contain:
(i) a designation of the statute or rule permitting or requiring review;
(ii) a statement of the issues reviewed;
(iii) findings of fact as to each of the issues reviewed;
(iv) conclusions of law as to each of the issues reviewed;
(v) the reasons for the disposition;
(vi) whether the decision of the presiding officer or agency is to be affirmed, reversed, or modified, and whether all or any portion of the adjudicative proceeding is to be remanded;
(vii) a notice of any right of further administrative reconsideration or judicial review available to aggrieved parties; and
(viii) the time limits applicable to any appeal or review.
Section 1406. Section 63G-4-302, which is renumbered from Section 63-46b-13 is renumbered and amended to read:
[63-46b-13
]. 63G-4-302. Agency review -- Reconsideration.(1) (a) Within 20 days after the date that an order is issued for which review by the agency or by a superior agency under Section [63-46b-12] 63G-4-301 is unavailable, and if the order would otherwise constitute final agency action, any party may file a written request for reconsideration with the agency, stating the specific grounds upon which relief is requested.
(b) Unless otherwise provided by statute, the filing of the request is not a prerequisite for seeking judicial review of the order.
(2) The request for reconsideration shall be filed with the agency and one copy shall be mailed to each party by the person making the request.
(3) (a) The agency head, or a person designated for that purpose, shall issue a written order granting the request or denying the request.
(b) If the agency head or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.
Section 1407. Section 63G-4-401, which is renumbered from Section 63-46b-14 is renumbered and amended to read:
Part 4. Judicial Review
[63-46b-14]. 63G-4-401. Judicial review -- Exhaustion of administrative remedies.
(1) A party aggrieved may obtain judicial review of final agency action, except in actions where judicial review is expressly prohibited by statute.
(2) A party may seek judicial review only after exhausting all administrative remedies available, except that:
(a) a party seeking judicial review need not exhaust administrative remedies if this chapter or any other statute states that exhaustion is not required;
(b) the court may relieve a party seeking judicial review of the requirement to exhaust any or all administrative remedies if:
(i) the administrative remedies are inadequate; or
(ii) exhaustion of remedies would result in irreparable harm disproportionate to the public benefit derived from requiring exhaustion.
(3) (a) A party shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued or is considered to have been issued under Subsection [63-46b-13] 63G-4-302 (3) (b).
(b) The petition shall name the agency and all other appropriate parties as respondents and shall meet the form requirements specified in this chapter.
Section 1408. Section 63G-4-402, which is renumbered from Section 63-46b-15 is renumbered and amended to read:
[63-46b-15
]. 63G-4-402. Judicial review -- Informal adjudicative proceedings.(1) (a) The district courts have jurisdiction to review by trial de novo all final agency actions resulting from informal adjudicative proceedings, except that the juvenile courts have jurisdiction over all state agency actions relating to:
(i) the removal or placement of children in state custody;
(ii) the support of children under Subsection (1)(a)(i) as determined administratively under Section 78-3a-906; and
(iii) substantiated findings of abuse or neglect made by the Division of Child and Family Services, after an evidentiary hearing.
(b) Venue for judicial review of informal adjudicative proceedings shall be as provided in the statute governing the agency or, in the absence of such a venue provision, in the county where the petitioner resides or maintains the petitioner's principal place of business.
(2) (a) The petition for judicial review of informal adjudicative proceedings shall be a complaint governed by the Utah Rules of Civil Procedure and shall include:
(i) the name and mailing address of the party seeking judicial review;
(ii) the name and mailing address of the respondent agency;
(iii) the title and date of the final agency action to be reviewed, together with a copy, summary, or brief description of the agency action;
(iv) identification of the persons who were parties in the informal adjudicative proceedings that led to the agency action;
(v) a copy of the written agency order from the informal proceeding;
(vi) facts demonstrating that the party seeking judicial review is entitled to obtain judicial review;
(vii) a request for relief, specifying the type and extent of relief requested; and
(viii) a statement of the reasons why the petitioner is entitled to relief.
(b) All additional pleadings and proceedings in the district court are governed by the Utah Rules of Civil Procedure.
(3) (a) The district court, without a jury, shall determine all questions of fact and law and any constitutional issue presented in the pleadings.
(b) The Utah Rules of Evidence apply in judicial proceedings under this section.
Section 1409. Section 63G-4-403, which is renumbered from Section 63-46b-16 is renumbered and amended to read:
[63-46b-16
]. 63G-4-403. Judicial review -- Formal adjudicative proceedings.(1) As provided by statute, the Supreme Court or the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings.
(2) (a) To seek judicial review of final agency action resulting from formal adjudicative proceedings, the petitioner shall file a petition for review of agency action with the appropriate appellate court in the form required by the appellate rules of the appropriate appellate court.
(b) The appellate rules of the appropriate appellate court shall govern all additional filings and proceedings in the appellate court.
(3) The contents, transmittal, and filing of the agency's record for judicial review of formal adjudicative proceedings are governed by the Utah Rules of Appellate Procedure, except that:
(a) all parties to the review proceedings may stipulate to shorten, summarize, or organize the record;
(b) the appellate court may tax the cost of preparing transcripts and copies for the record:
(i) against a party who unreasonably refuses to stipulate to shorten, summarize, or organize the record; or
(ii) according to any other provision of law.
(4) The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:
(a) the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied;
(b) the agency has acted beyond the jurisdiction conferred by any statute;
(c) the agency has not decided all of the issues requiring resolution;
(d) the agency has erroneously interpreted or applied the law;
(e) the agency has engaged in an unlawful procedure or decision-making process, or has failed to follow prescribed procedure;
(f) the persons taking the agency action were illegally constituted as a decision-making body or were subject to disqualification;
(g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court;
(h) the agency action is:
(i) an abuse of the discretion delegated to the agency by statute;
(ii) contrary to a rule of the agency;
(iii) contrary to the agency's prior practice, unless the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency; or
(iv) otherwise arbitrary or capricious.
Section 1410. Section 63G-4-404, which is renumbered from Section 63-46b-17 is renumbered and amended to read:
[63-46b-17
]. 63G-4-404. Judicial review -- Type of relief.(1) (a) In either the review of informal adjudicative proceedings by the district court or the review of formal adjudicative proceedings by an appellate court, the court may award damages or compensation only to the extent expressly authorized by statute.
(b) In granting relief, the court may:
(i) order agency action required by law;
(ii) order the agency to exercise its discretion as required by law;
(iii) set aside or modify agency action;
(iv) enjoin or stay the effective date of agency action; or
(v) remand the matter to the agency for further proceedings.
(2) Decisions on petitions for judicial review of final agency action are reviewable by a higher court, if authorized by statute.
Section 1411. Section 63G-4-405, which is renumbered from Section 63-46b-18 is renumbered and amended to read:
[63-46b-18
]. 63G-4-405. Judicial review -- Stay and other temporary remedies pending final disposition.(1) Unless precluded by another statute, the agency may grant a stay of its order or other temporary remedy during the pendency of judicial review, according to the agency's rules.
(2) Parties shall petition the agency for a stay or other temporary remedies unless extraordinary circumstances require immediate judicial intervention.
(3) If the agency denies a stay or denies other temporary remedies requested by a party, the agency's order of denial shall be mailed to all parties and shall specify the reasons why the stay or other temporary remedy was not granted.
(4) If the agency has denied a stay or other temporary remedy to protect the public health, safety, or welfare against a substantial threat, the court may not grant a stay or other temporary remedy unless it finds that:
(a) the agency violated its own rules in denying the stay; or
(b) (i) the party seeking judicial review is likely to prevail on the merits when the court finally disposes of the matter;
(ii) the party seeking judicial review will suffer irreparable injury without immediate relief;
(iii) granting relief to the party seeking review will not substantially harm other parties to the proceedings; and
(iv) the threat to the public health, safety, or welfare relied upon by the agency is not sufficiently serious to justify the agency's action under the circumstances.
Section 1412. Section 63G-4-501, which is renumbered from Section 63-46b-19 is renumbered and amended to read:
Part 5. Orders and Enforcement
[63-46b-19]. 63G-4-501. Civil enforcement.
(1) (a) In addition to other remedies provided by law, an agency may seek enforcement of an order by seeking civil enforcement in the district courts.
(b) The action seeking civil enforcement of an agency's order must name, as defendants, each alleged violator against whom the agency seeks to obtain civil enforcement.
(c) Venue for an action seeking civil enforcement of an agency's order shall be determined by the requirements of the Utah Rules of Civil Procedure.
(d) The action may request, and the court may grant, any of the following:
(i) declaratory relief;
(ii) temporary or permanent injunctive relief;
(iii) any other civil remedy provided by law; or
(iv) any combination of the foregoing.
(2) (a) Any person whose interests are directly impaired or threatened by the failure of an agency to enforce an agency's order may timely file a complaint seeking civil enforcement of that order, but the action may not be commenced:
(i) until at least 30 days after the plaintiff has given notice of his intent to seek civil enforcement of the alleged violation to the agency head, the attorney general, and to each alleged violator against whom the petitioner seeks civil enforcement;
(ii) if the agency has filed and is diligently prosecuting a complaint seeking civil enforcement of the same order against the same or a similarly situated defendant; or
(iii) if a petition for judicial review of the same order has been filed and is pending in court.
(b) The complaint seeking civil enforcement of an agency's order must name, as defendants, the agency whose order is sought to be enforced, the agency that is vested with the power to enforce the order, and each alleged violator against whom the plaintiff seeks civil enforcement.
(c) Except to the extent expressly authorized by statute, a complaint seeking civil enforcement of an agency's order may not request, and the court may not grant, any monetary payment apart from taxable costs.
(3) In a proceeding for civil enforcement of an agency's order, in addition to any other defenses allowed by law, a defendant may defend on the ground that:
(a) the order sought to be enforced was issued by an agency without jurisdiction to issue the order;
(b) the order does not apply to the defendant;
(c) the defendant has not violated the order; or
(d) the defendant violated the order but has subsequently complied.
(4) Decisions on complaints seeking civil enforcement of an agency's order are reviewable in the same manner as other civil cases.
Section 1413. Section 63G-4-502, which is renumbered from Section 63-46b-20 is renumbered and amended to read:
[63-46b-20
]. 63G-4-502. Emergency adjudicative proceedings.(1) An agency may issue an order on an emergency basis without complying with the requirements of this chapter if:
(a) the facts known by the agency or presented to the agency show that an immediate and significant danger to the public health, safety, or welfare exists; and
(b) the threat requires immediate action by the agency.
(2) In issuing its emergency order, the agency shall:
(a) limit its order to require only the action necessary to prevent or avoid the danger to the public health, safety, or welfare;
(b) issue promptly a written order, effective immediately, that includes a brief statement of findings of fact, conclusions of law, and reasons for the agency's utilization of emergency adjudicative proceedings; and
(c) give immediate notice to the persons who are required to comply with the order.
(3) If the emergency order issued under this section will result in the continued infringement or impairment of any legal right or interest of any party, the agency shall commence a formal adjudicative proceeding in accordance with the other provisions of this chapter.
Section 1414. Section 63G-4-503, which is renumbered from Section 63-46b-21 is renumbered and amended to read:
[63-46b-21
]. 63G-4-503. Declaratory orders.(1) Any person may file a request for agency action, requesting that the agency issue a declaratory order determining the applicability of a statute, rule, or order within the primary jurisdiction of the agency to specified circumstances.
(2) Each agency shall issue rules that:
(a) provide for the form, contents, and filing of petitions for declaratory orders;
(b) provide for the disposition of the petitions;
(c) define the classes of circumstances in which the agency will not issue a declaratory order;
(d) are consistent with the public interest and with the general policy of this chapter; and
(e) facilitate and encourage agency issuance of reliable advice.
(3) (a) An agency may not issue a declaratory order if:
(i) the request is one of a class of circumstances that the agency has by rule defined as being exempt from declaratory orders; or
(ii) the person requesting the declaratory order participated in an adjudicative proceeding concerning the same issue within 12 months of the date of the present request.
(b) An agency may issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party, only if that person consents in writing to the determination of the matter by a declaratory proceeding.
(4) Persons may intervene in declaratory proceedings if:
(a) they meet the requirements of Section [63-46b-9] 63G-4-207; and
(b) they file timely petitions for intervention according to agency rules.
(5) An agency may provide, by rule or order, that other provisions of Sections [63-46b-4] 63G-4-202 through [63-46b-13] 63G-4-302 apply to declaratory proceedings.
(6) (a) After receipt of a petition for a declaratory order, the agency may issue a written order:
(i) declaring the applicability of the statute, rule, or order in question to the specified circumstances;
(ii) setting the matter for adjudicative proceedings;
(iii) agreeing to issue a declaratory order within a specified time; or
(iv) declining to issue a declaratory order and stating the reasons for its action.
(b) A declaratory order shall contain:
(i) the names of all parties to the proceeding on which it is based;
(ii) the particular facts on which it is based; and
(iii) the reasons for its conclusion.
(c) A copy of all orders issued in response to a request for a declaratory proceeding shall be mailed promptly to the petitioner and any other parties.
(d) A declaratory order has the same status and binding effect as any other order issued in an adjudicative proceeding.
(7) Unless the petitioner and the agency agree in writing to an extension, if an agency has not issued a declaratory order within 60 days after receipt of the petition for a declaratory order, the petition is denied.
Section 1415. Section 63G-4-601, which is renumbered from Section 63-46b-23 is renumbered and amended to read:
Part 6. Electronic Records
[63-46b-23]. 63G-4-601. Electronic records and conversion of written records by governmental agencies.
A governmental agency may make rules regarding electronic records and conversion of written records as prescribed by Title 46, Chapter 4, Part 5, Electronic Records in Government Agencies.
Section 1416. Section 63G-5-101, which is renumbered from Section 63-46c-101 is renumbered and amended to read:
CHAPTER 5. GOVERNMENTAL DISPUTE RESOLUTION ACT
Part 1. General Provisions
[63-46c-101]. 63G-5-101. Title.
This chapter is known as the "Governmental Dispute Resolution Act."
Section 1417. Section 63G-5-102, which is renumbered from Section 63-46c-102 is renumbered and amended to read:
[63-46c-102
]. 63G-5-102. Definitions.As used in this chapter:
(1) "Agency" is defined in Section [63-46b-2] 63G-4-103.
(2) "Alternative dispute resolution" or "ADR" means a process other than litigation used to resolve disputes including mediation, arbitration, facilitation, regulatory negotiation, fact-finding, conciliation, early neutral evaluation, and policy dialogues.
(3) "ADR organization" is defined in Section 78-31b-2.
(4) (a) "ADR provider" means a neutral person who:
(i) meets the qualifications established by Judicial Council rules authorized under Section 78-31b-5; and
(ii) conducts an ADR procedure.
(b) "ADR provider" includes an arbitrator, mediator, and early neutral evaluator and may be an employee or an independent contractor.
(5) "Arbitration" means a private hearing before an ADR provider or panel of ADR providers who hear the evidence, consider the contentions of the parties, and enter a written award to resolve the issues presented.
(6) "Mediation" is defined in Section 78-31b-2.
(7) "Neutral" means a person who holds himself out to the public as a qualified person trained to use alternative dispute resolution techniques to resolve conflicts.
Section 1418. Section 63G-5-201, which is renumbered from Section 63-46c-103 is renumbered and amended to read:
Part 2. Alternative Dispute Resolution
[63-46c-103]. 63G-5-201. Alternative dispute resolution -- Authorization -- Procedures -- Agency coordinators -- Contracts.
(1) An agency may use an ADR procedure to resolve any dispute, issue, or controversy involving any of the agency's operations, programs, or functions, including formal and informal adjudications, rulemakings, enforcement actions, permitting, certifications, licensing, policy development, and contract administration only with the consent of all the interested parties.
(2) (a) An agency may develop and adopt an ADR procedure governed by rules, adopted in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) In developing and adopting an ADR procedure under Subsection (2)(a), an agency shall consider:
(i) public interest in maintaining open access to and neutrality of an ADR provider or neutral;
(ii) providing a broad selection of ADR providers or neutrals; and
(iii) creating objective criteria for an ADR provider or neutral to become qualified to conduct an agency ADR procedure.
(3) ADR procedures developed and used by an agency must be consistent with the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) ADR procedures are voluntary and may be used:
(a) at the discretion of the agency; or
(b) with an agency that has adopted an ADR procedure under Subsection (2), at the request of an interested party to a dispute.
(5) An agency that chooses to use an ADR procedure shall develop an agreement with interested parties that provides:
(a) (i) for the appointment of an ADR provider or a neutral;
(ii) whose appointment is agreed upon by all parties to the dispute;
(b) specifies any limitation periods applicable to the commencement or conclusion of formal administrative or judicial proceedings and, if applicable, specifies any time periods that the parties have agreed to waive; and
(c) sets forth how costs and expenses shall be apportioned among the parties.
(6) (a) An ADR provider or neutral agreed upon in Subsection (5) shall have no official, financial, or personal conflict of interest with any issue or party in controversy unless the conflict of interest is fully disclosed in writing to all of the parties and all of the parties agree that the person may continue to serve.
(b) An agency may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to develop standards to assure the neutrality of an ADR provider or neutral.
(7) An agreement developed in accordance with Subsection (5) may be included in an enforcement order, stipulation, contract, permit, or other document entered into or issued by the agency.
(8) (a) The administrative head of an agency may designate an employee as the ADR coordinator for that agency.
(b) The agency ADR coordinator shall:
(i) make recommendations to the agency's executive staff on issues and disputes that are suitable for alternative dispute resolution;
(ii) analyze the agency's enabling statutes and rules to determine whether they contain impediments to the use of ADR procedures and suggest any modifications;
(iii) monitor the agency's use of ADR procedures;
(iv) arrange for training of agency staff in ADR procedures; and
(v) provide information about the agency's ADR procedures to the agency's staff and to the public.
(9) In order to implement the purposes of this chapter, an agency may employ or contract with a neutral, an ADR provider, an ADR organization, another agency, or a private entity for any service necessary on a case-by-case basis, on a service basis, or on a program basis.
(10) ADR procedures developed and used under this chapter are subject to the confidentiality requirements of Section 78-31b-8.
Section 1419. Section 63G-5-301, which is renumbered from Section 63-46c-104 is renumbered and amended to read:
Part 3. Application
[63-46c-104]. 63G-5-301. Effect on other laws.
Nothing in this chapter or in the agreements and procedures developed in Section [63-46c-103] 63G-5-201 shall:
(1) limit other dispute resolution procedures available to an agency; and
(2) deny a person a right granted under federal or other state law, including a right to an administrative or judicial hearing.
Section 1420. Section 63G-6-101 is enacted to read:
CHAPTER 6. UTAH PROCUREMENT CODE
Part 1. General Provisions
63G-6-101. Title.
This chapter is known as the "Utah Procurement Code."
Section 1421. Section 63G-6-102, which is renumbered from Section 63-56-101 is renumbered and amended to read:
[63-56-101
]. 63G-6-102. Purpose of chapter.The underlying purposes and policies of this chapter are:
(1) to simplify, clarify, and modernize the law governing procurement by this state;
(2) to ensure the fair and equitable treatment of all persons who deal with the procurement system of this state;
(3) to provide increased economy in state procurement activities; and
(4) to foster effective broad-based competition within the free enterprise system.
Section 1422. Section 63G-6-103, which is renumbered from Section 63-56-105 is renumbered and amended to read:
[63-56-105
]. 63G-6-103. Definitions.As used in this chapter:
(1) "Architect-engineer services" are those professional services within the scope of the practice of architecture as defined in Section 58-3a-102, or professional engineering as defined in Section 58-22-102.
(2) "Business" means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity.
(3) "Change order" means a written order signed by the procurement officer, directing the contractor to suspend work or make changes, which the appropriate clauses of the contract authorize the procurement officer to order without the consent of the contractor or any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract.
(4) (a) "Construction" means the process of building, renovation, alteration, improvement, or repair of any public building or public work.
(b) "Construction" does not mean the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.
(5) (a) "Construction Manager/General Contractor" means any contractor who enters into a contract for the management of a construction project when that contract allows the contractor to subcontract for additional labor and materials that were not included in the contractor's cost proposal submitted at the time of the procurement of the Construction Manager/General Contractor's services.
(b) "Construction Manager/General Contractor" does not mean a contractor whose only subcontract work not included in the contractor's cost proposal submitted as part of the procurement of construction is to meet subcontracted portions of change orders approved within the scope of the project.
(6) "Contract" means any state agreement for the procurement or disposal of supplies, services, or construction.
(7) "Cooperative purchasing" means procurement conducted by, or on behalf of, more than one public procurement unit, or by a public procurement unit with an external procurement unit.
(8) "Cost-reimbursement contract" means a contract under which a contractor is reimbursed for costs which are allowed and allocated in accordance with the contract terms and the provisions of this chapter, and a fee, if any.
(9) (a) "Design-build" means the procurement of architect-engineer services and construction by the use of a single contract with the design-build provider.
(b) This method of design and construction can include the design-build provider supplying the site as part of the contract.
(10) "Established catalogue price" means the price included in a catalogue, price list, schedule, or other form that:
(a) is regularly maintained by a manufacturer or contractor;
(b) is either published or otherwise available for inspection by customers; and
(c) states prices at which sales are currently or were last made to a significant number of any category of buyers or buyers constituting the general buying public for the supplies or services involved.
(11) "External procurement unit" means any buying organization not located in this state which, if located in this state, would qualify as a public procurement unit. An agency of the United States is an external procurement unit.
(12) "Grant" means the furnishing by the state or by any other public or private source assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction. A contract resulting from the award is not a grant but a procurement contract.
(13) "Invitation for bids" means all documents, whether attached or incorporated by reference, utilized for soliciting bids.
(14) "Local public procurement unit" means any political subdivision or institution of higher education of the state or public agency of any subdivision, public authority, educational, health, or other institution, and to the extent provided by law, any other entity which expends public funds for the procurement of supplies, services, and construction, but not counties, municipalities, political subdivisions created by counties or municipalities under the Interlocal Cooperation Act, the Utah Housing Corporation, or the Legislature and its staff offices. It includes two or more local public procurement units acting under legislation which authorizes intergovernmental cooperation.
(15) "Person" means any business, individual, union, committee, club, other organization, or group of individuals, not including a state agency or a local public procurement unit.
(16) "Policy board" means the procurement policy board created by Section [63-56-201] 63G-6-201.
(17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference under the requirements of this chapter.
(18) "Procurement" means buying, purchasing, renting, leasing, leasing with an option to purchase, or otherwise acquiring any supplies, services, or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation, and award of a contract, and all phases of contract administration.
(19) "Procurement officer" means any person or board duly authorized to enter into and administer contracts and make written determinations with respect thereto. It also includes an authorized representative acting within the limits of authority.
(20) "Public procurement unit" means either a local public procurement unit or a state public procurement unit.
(21) "Purchase description" means the words used in a solicitation to describe the supplies, services, or construction to be purchased, and includes specifications attached to or made a part of the solicitation.
(22) "Purchasing agency" means any state agency other than the Division of Purchasing and General Services that is authorized by this chapter or its implementing regulations, or by delegation from the chief procurement officer, to enter into contracts.
(23) "Request for proposals" means all documents, whether attached or incorporated by reference, used for soliciting proposals.
(24) "Responsible bidder or offeror" means a person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability which will assure good faith performance.
(25) "Responsive bidder" means a person who has submitted a bid which conforms in all material respects to the invitation for bids.
(26) "Sealed" does not preclude acceptance of electronically sealed and submitted bids or proposals in addition to bids or proposals manually sealed and submitted.
(27) "Services" means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. It does not include employment agreements or collective bargaining agreements.
(28) "Specification" means any description of the physical or functional characteristics, or of the nature of a supply, service, or construction item. It may include a description of any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery.
(29) "State agency" or "the state" means any department, division, commission, council, board, bureau, committee, institution, government corporation, or other establishment, official, or employee of this state.
(30) "State public procurement unit" means the Division of Purchasing and General Services and any other purchasing agency of this state.
(31) "Supplies" means all property, including equipment, materials, and printing.
(32) "Using agency" means any state agency which utilizes any supplies, services, or construction procured under this chapter.
Section 1423. Section 63G-6-104, which is renumbered from Section 63-56-102 is renumbered and amended to read:
[63-56-102
]. 63G-6-104. Application of chapter.(1) This chapter applies only to contracts solicited or entered into after the effective date of this chapter unless the parties agree to its application to a contract solicited or entered into prior to the effective date.
(2) Except as provided in Section [63-56-103] 63G-6-105, this chapter shall apply to every expenditure of public funds irrespective of their source, including federal assistance, by any state agency under any contract.
(3) (a) Only the following sections shall apply to local public procurement units: Sections [63-56-103] 63G-6-105, [63-56-105] 63G-6-103, [63-56-301] 63G-6-301, [63-56-303] 63G-6-303 through [63-56-420] 63G-6-420, [63-56-422] 63G-6-422, [63-56-501] 63G-6-501 through [63-56-602] 63G-6-602, [63-56-801] 63G-6-801 through [63-56-806] 63G-6-806, and [63-56-815] 63G-6-815 through [63-56-819] 63G-6-819; provided, however, that, except as provided in Sections [63-56-906] 63G-6-906 and [63-56-907] 63G-6-907, the jurisdiction of the procurement appeals board is limited to matters involving state agencies.
(b) Subsections [63-56-208] 63G-6-208(1)(b), [63-56-503] 63G-6-504(4), and [63-56-504] 63G-6-505(2) also apply to local public procurement units.
(c) For the purpose of application of those sections and subsections to a local public procurement unit, "state" shall mean "local public procurement unit," "chief procurement officer" or "head of a purchasing agency" shall mean any person conducting procurement for a local public procurement unit, and "rules and regulations" shall mean ordinances and rules and regulations promulgated by a local public procurement unit to implement or supplement those sections.
(d) In addition to the sections and subsections listed above and except as provided in Subsection 17B-1-108(3) relating to local districts, each local public procurement unit shall adopt ordinances relating to the procurement of architect-engineer services not inconsistent with the provisions of Part 7, Architect-Engineer Services.
(e) Any other section of this chapter, or its implementing regulations, may be adopted by any local public procurement unit.
(f) Any other implementing regulations adopted by local public procurement units may not be inconsistent with the provisions of this chapter.
(4) Unless otherwise provided by statute, this chapter does not apply to procurement of real property.
Section 1424. Section 63G-6-105, which is renumbered from Section 63-56-103 is renumbered and amended to read:
[63-56-103
]. 63G-6-105. Exemptions from chapter -- Compliance with federal law.(1) This chapter is not applicable to funds administered under the Percent-for-Art Program of the Utah Percent-for-Art Act.
(2) This chapter is not applicable to grants awarded by the state or contracts between the state and local public procurement units except as provided in Part 9, Intergovernmental Relations.
(3) This chapter shall not prevent the state or a local public procurement unit from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law.
(4) When a procurement involves the expenditure of federal assistance or contract funds, the chief procurement officer or head of a purchasing agency shall comply with mandatory applicable federal law and regulations not reflected in this chapter.
(5) This chapter may not supersede the requirements for retention or withholding of construction proceeds and release of construction proceeds as provided in Section 13-8-5.
Section 1425. Section 63G-6-106, which is renumbered from Section 63-56-104 is renumbered and amended to read:
[63-56-104
]. 63G-6-106. Records.(1) All procurement records shall be retained and disposed of in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) Written determinations required by this chapter shall also be retained in the appropriate official contract file of the Division of Purchasing and General Services or the purchasing agency.
Section 1426. Section 63G-6-201, which is renumbered from Section 63-56-201 is renumbered and amended to read:
Part 2. Procurement Organization
[63-56-201]. 63G-6-201. Creation of procurement policy board.
(1) (a) There is created a state procurement policy board.
(b) The policy board shall consist of eight members who shall be appointed as follows:
(i) an employee of a state institution of higher education, appointed by the board of regents;
(ii) an employee of the Department of Human Services, appointed by the executive director of that department;
(iii) an employee of the Department of Transportation, appointed by the executive director of that department;
(iv) an employee of a school district appointed by a cooperative purchasing entity for school districts;
(v) an employee of the Division of Facilities Construction and Management appointed by the director of that division;
(vi) an employee of a county, appointed by the Utah Association of Counties;
(vii) an employee of a city, appointed by the Utah League of Cities and Towns; and
(viii) an employee of a local district or special service district, appointed by the Utah Association of Special Districts.
(c) Members of the policy board shall be knowledgeable and experienced in, and have supervisory responsibility for, procurement in their official positions.
(2) Members shall be appointed to four-year staggered terms.
(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(4) (a) The policy board shall:
(i) adopt rules of procedure for conducting its business; and
(ii) elect a chair to serve for one year.
(b) The chair may be elected to succeeding terms.
(c) The chief procurement officer shall serve as the nonvoting secretary to the policy board.
(5) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Higher education members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Higher education members may decline to receive per diem and expenses for their service.
(d) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
Section 1427. Section 63G-6-202, which is renumbered from Section 63-56-202 is renumbered and amended to read:
[63-56-202
]. 63G-6-202. Powers and duties of board.(1) Except as otherwise provided in Sections [63-56-102] 63G-6-104 and [63-56-208] 63G-6-208, the policy board shall:
(a) make rules, consistent with this chapter, governing the procurement, management, and control of any and all supplies, services, and construction to be procured by the state; and
(b) consider and decide matters of policy within the provisions of this chapter, including those referred to it by the chief procurement officer.
(2) (a) The policy board may:
(i) audit and monitor the implementation of its rules and the requirements of this chapter;
(ii) upon the request of a local public procurement unit, review that procurement unit's proposed rules to ensure that they are not inconsistent with the provisions of this chapter; and
(iii) approve the use of innovative procurement methods proposed by local public procurement units.
(b) The policy board may not exercise authority over the award or administration of:
(i) any particular contact; or
(ii) over any dispute, claim, or litigation pertaining to any particular contract.
Section 1428. Section 63G-6-203, which is renumbered from Section 63-56-203 is renumbered and amended to read:
[63-56-203
]. 63G-6-203. Chief procurement officer -- Appointment -- Qualifications.(1) The executive director of the Department of Administrative Services, with the consent of the governor, shall appoint the chief procurement officer after considering recommendations from the policy board.
(2) The chief procurement officer shall:
(a) have a minimum of eight years' experience in the large-scale procurement of supplies and services or services and construction, at least five years of which shall have been in public or comparable private procurement within 12 years preceding the date of appointment; and
(b) be a person with demonstrated executive and organizational ability.
(3) The chief procurement officer is also the director of the Division of Purchasing and General Services.
Section 1429. Section 63G-6-204, which is renumbered from Section 63-56-204 is renumbered and amended to read:
[63-56-204
]. 63G-6-204. Duties of chief procurement officer.Except as otherwise specifically provided in this chapter, the chief procurement officer serves as the central procurement officer of the state and shall:
(1) adopt office policies governing the internal functions of the Division of Purchasing and General Services;
(2) procure or supervise the procurement of all supplies, services, and construction needed by the state;
(3) exercise general supervision and control over all inventories or supplies belonging to the state;
(4) establish and maintain programs for the inspection, testing, and acceptance of supplies, services, and construction;
(5) prepare statistical data concerning the procurement and usage of all supplies, services, and construction;
(6) before June 1, 1990, notify all public procurement units of the requirements of Section [63-56-406] 63G-6-406 regarding purchases of recycled paper and recycled paper products, recycling requirements, and provide guidelines on the availability of recycled paper and paper products, including the sources of supply and the potential uses of various grades of recycled paper;
(7) before July 1, 1992:
(a) establish standards and specifications for determining which supplies are considered recycled, based upon his review of current definitions and standards employed by national procurement, product recycling, and other relevant organizations and the federal Environmental Protection Agency;
(b) compile and update as necessary the specifications, a list of recycled supplies available on state contract, and sources where the supplies may be obtained;
(c) make the compiled information under Subsection (7)(b) available to:
(i) all local government entities under Section 11-37-101;
(ii) all local health departments under Section 26A-1-108.7;
(iii) all procurement officers or other persons responsible for purchasing supplies within the public school system under Title 53A, State System of Public Education;
(iv) all procurement officers or other persons responsible for purchasing supplies within the state system of higher education under Title 53B, State System of Higher Education; and
(v) all procurement officers or other persons responsible for purchasing supplies for all public procurement units as defined in Section [63-56-105] 63G-6-103; and
(d) present a written report to the Natural Resources, Agriculture, and Environment Interim Committee annually prior to November 30 regarding the purchases of recycled goods on state contracts during the prior fiscal year; and
(8) ensure that:
(a) before approving a purchase, lease, or rental not covered by an existing statewide contract for information technology or telecommunications supplies or services, the chief information officer and the agency have provided in writing to the division, that the needs analysis required in Section 63F-1-205 was completed; and
(b) the oversight authority required by Subsection (8)(a) is not delegated outside the Division of Purchasing and General Services.
Section 1430. Section 63G-6-205, which is renumbered from Section 63-56-205 is renumbered and amended to read:
[63-56-205
]. 63G-6-205. Delegation of authority.Subject to rules and regulations, the chief procurement officer may delegate authority to designees or to any department, agency, or official.
Section 1431. Section 63G-6-206, which is renumbered from Section 63-56-206 is renumbered and amended to read:
[63-56-206
]. 63G-6-206. Transfer of power to policy board.Except as otherwise provided in this chapter, all rights, powers, duties, and authority relating to the procurement of supplies, services, and construction, and the management, control, warehousing, and sale of supplies, services, and construction vested in or exercised by any state agency on the effective date are transferred to the policy board as they relate to its duties and to the Division of Purchasing and General Services as they relate to its duties.
Section 1432. Section 63G-6-207, which is renumbered from Section 63-56-207 is renumbered and amended to read:
[63-56-207
]. 63G-6-207. Specific statutory authority.(1) The authority to procure certain supplies, services, and construction given the public procurement units governed by the following provisions shall be retained:
(a) Title 53B, State System of Higher Education;
(b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction and Management;
(c) Title 67, Chapter 5, Attorney General;
(d) Title 72, Transportation; and
(e) Title 78, Chapter 3, District Courts.
(2) This authority extends only to supplies, services, and construction to the extent provided in the cited chapters. Except as otherwise provided in Sections [63-56-102] 63G-6-104 and [63-56-103] 63G-6-105, the respective purchasing agencies shall procure supplies, services, and construction in accordance with this chapter.
(3) (a) The Department of Transportation may make rules governing the procurement of highway construction or improvement.
(b) This Subsection (3) supersedes Subsections (1) and (2).
(4) The Legislature may procure supplies and services for its own needs.
Section 1433. Section 63G-6-208, which is renumbered from Section 63-56-208 is renumbered and amended to read:
[63-56-208
]. 63G-6-208. Rules and regulations of policy board and building board.(1) (a) Except as provided in Subsection (2), the policy board shall make rules governing state procurement by complying with the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act.
(b) The procurement rules adopted by the policy board under this section apply to all local public procurement units unless the local public procurement unit's legislative body has adopted separate rules governing procurement.
(2) The State Building Board rules governing procurement of construction, architect-engineer services, and leases apply to the procurement of construction, architect-engineer services, and leases of real property by the Division of Facilities Construction and Management.
Section 1434. Section 63G-6-209, which is renumbered from Section 63-56-209 is renumbered and amended to read:
[63-56-209
]. 63G-6-209. Procurement Advisory Council.(1) The policy board may establish a Procurement Advisory Council, which shall meet at least once a year for the discussion of problems and recommendations for improvement of the procurement process. When requested by the policy board, the Procurement Advisory Council may conduct studies, research, analyses, and make reports and recommendations with respect to subjects or matters within the jurisdiction of the policy board. The Procurement Advisory Council shall consist of representatives of state and local government and any other persons the policy board considers desirable.
(2) The chief procurement officer may appoint advisory groups to provide advice regarding any matters within the authority of the chief procurement officer.
(3) Members of the Procurement Advisory Council and other advisory groups may be reimbursed for expenses incurred in the performance of their duties, as provided by the policy board.
Section 1435. Section 63G-6-301, which is renumbered from Section 63-56-301 is renumbered and amended to read:
Part 3. Specifications
[63-56-301]. 63G-6-301. Rules and regulations for specifications of supplies.
Rules and regulations shall be promulgated to govern the preparation, maintenance, and content of specifications for supplies, services, and construction required by the state. Rules and regulations shall determine the extent to which a nonemployee who has prepared specifications for use by the state may participate in any state procurement using such specifications.
Section 1436. Section 63G-6-302, which is renumbered from Section 63-56-302 is renumbered and amended to read:
[63-56-302
]. 63G-6-302. Duty of chief procurement officer in maintaining specifications of supplies.The chief procurement officer shall prepare, issue, revise, maintain, and monitor the use of specifications for supplies, services, and construction required by the state. The chief procurement officer shall obtain expert advice and assistance from personnel of using agencies in the development of specifications and may delegate in writing to a using agency the authority to prepare and utilize its own specifications.
Section 1437. Section 63G-6-303, which is renumbered from Section 63-56-303 is renumbered and amended to read:
[63-56-303
]. 63G-6-303. Purpose of specifications.All specifications shall seek to promote overall economy and best use for the purposes intended and encourage competition in satisfying the state's needs, and shall not be unduly restrictive. The requirements of this part regarding the purposes and nonrestrictiveness of specifications shall apply to all specifications, including, but not limited to, those prepared by architects, engineers, designers, and draftsmen for public contracts.
Section 1438. Section 63G-6-401, which is renumbered from Section 63-56-401 is renumbered and amended to read:
Part 4. Source Selections and Contract Formation
[63-56-401]. 63G-6-401. Contracts awarded by sealed bidding -- Procedure.
(1) Contracts shall be awarded by competitive sealed bidding except as otherwise provided by this chapter.
(2) (a) An invitation for bids shall be issued when a contract is to be awarded by competitive sealed bidding.
(b) The invitation shall include a purchase description and all contractual terms and conditions applicable to the procurement.
(3) (a) Public notice of the invitation for bids shall be given a reasonable time before the date set forth in the invitation for the opening of bids, in accordance with rules.
(b) The notice may include publication in a newspaper of general circulation a reasonable time before bid opening.
(4) (a) Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids.
(b) The amount of each bid and any other relevant information specified by rules, together with the name of each bidder, shall be recorded.
(c) The record and each bid shall be open to public inspection.
(5) (a) Bids shall be unconditionally accepted without alteration or correction, except as authorized in this chapter.
(b) (i) Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose.
(ii) Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable.
(iii) The criteria may include discounts, transportation costs, and total or life cycle costs.
(c) No criteria may be used in bid evaluation that are not set forth in the invitation for bids.
(6) (a) Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards or contracts based on the bid mistakes, shall be permitted in accordance with rules.
(b) After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the state or fair competition may be permitted.
(c) Except as otherwise provided by rule, all decisions to permit the correction or withdrawal of bids or to cancel awards or contracts based on bid mistakes shall be supported by a written determination made by the chief procurement officer or the head of a purchasing agency.
(7) (a) The contract shall be awarded with reasonable promptness by written notice to the lowest responsive and responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids.
(b) (i) If all bids for a construction project exceed available funds as certified by the appropriate fiscal officer, and the low responsive and responsible bid does not exceed those funds by more than 5%, the chief procurement officer or the head of a purchasing agency may, in situations where time or economic considerations preclude resolicitation of work of a reduced scope, negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsive and responsible bidder in order to bring the bid within the amount of available funds.
(ii) If the State Building Board establishes alternative procedures by rule under Section 63A-5-103, the Division of Facilities Construction and Management need not comply with the provisions of this Subsection (7) when a bid meets the requirements of the State Building Board's rule.
(8) When it is considered impractical to prepare initially a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.
Section 1439. Section 63G-6-402, which is renumbered from Section 63-56-402 is renumbered and amended to read:
[63-56-402
]. 63G-6-402. Contracts awarded by reverse auction.(1) As used in this section, "reverse auction" means a process where:
(a) contracts are awarded in an open and interactive environment, which may include the use of electronic media; and
(b) bids are opened and made public immediately, and bidders given opportunity to submit revised, lower bids, until the bidding process is complete.
(2) (a) Notwithstanding the requirements of this chapter, contracts may be awarded through a reverse auction.
(b) The policy board shall make rules, consistent with this chapter, governing a reverse auction process.
Section 1440. Section 63G-6-403, which is renumbered from Section 63-56-403 is renumbered and amended to read:
[63-56-403
]. 63G-6-403. Procurement -- Use of recycled goods.The procurement officer or other person responsible for purchasing supplies for each public procurement unit shall:
(1) comply with Section [63-56-406] 63G-6-406; and
(2) (a) maintain for reference a copy of the current listing of recycled items available on state contract as issued by the chief procurement officer under Section [63-56-204] 63G-6-204; and
(b) give recycled items consideration when inviting bids and purchasing supplies.
Section 1441. Section 63G-6-404, which is renumbered from Section 63-56-404 is renumbered and amended to read:
[63-56-404
]. 63G-6-404. Preference for providers of state products.(1) (a) All public procurement units shall, in all purchases of goods, supplies, equipment, materials, and printing, give a reciprocal preference to those bidders offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah as against those bidders offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in any state that gives or requires a preference to goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in that state.
(b) The amount of reciprocal preference shall be equal to the amount of the preference applied by the other state for that particular good, supply, equipment, material, or printing.
(c) (i) The bidder shall certify on the bid that the goods, supplies, equipment, materials, or printing offered are produced, manufactured, mined, grown, or performed in Utah.
(ii) The reciprocal preference is waived if that certification does not appear on the bid.
(2) (a) If the bidder submitting the lowest responsive and responsible bid offers goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in a state that gives or requires a preference, and if another bidder has submitted a responsive and responsible bid offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah, and with the benefit of the reciprocal preference, his bid is equal to or less than the original lowest bid, the procurement officer shall:
(i) give notice to the bidder offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah that he qualifies as a preferred bidder; and
(ii) make the purchase from the preferred bidder if, within 72 hours after notification to him that he is a preferred bidder, he agrees, in writing, to meet the low bid.
(b) The procurement officer shall include the exact price submitted by the lowest bidder in the notice he submits to the preferred bidder.
(c) The procurement officer may not enter into a contract with any other bidder for the purchase until 72 hours have elapsed after notification to the preferred bidder.
(3) (a) If there is more than one preferred bidder, the procurement officer shall award the contract to the willing preferred bidder who was the lowest preferred bidder originally.
(b) If there were two or more equally low preferred bidders, the procurement officer shall comply with the rules adopted by the Procurement Policy Board to determine which bidder should be awarded the contract.
(4) The provisions of this section do not apply if application of this section might jeopardize the receipt of federal funds.
Section 1442. Section 63G-6-405, which is renumbered from Section 63-56-405 is renumbered and amended to read:
[63-56-405
]. 63G-6-405. Preference for resident contractors.(1) As used in this section, "resident contractor" means a person, partnership, corporation, or other business entity that:
(a) either has its principal place of business in Utah or that employs workers who are residents of this state when available; and
(b) was transacting business on the date when bids for the public contract were first solicited.
(2) (a) When awarding contracts for construction, a public procurement unit shall grant a resident contractor a reciprocal preference as against a nonresident contractor from any state that gives or requires a preference to contractors from that state.
(b) The amount of the reciprocal preference shall be equal to the amount of the preference applied by the state of the nonresident contractor.
(3) (a) The bidder shall certify on the bid that he qualifies as a resident contractor.
(b) The reciprocal preference is waived if that certification does not appear on the bid.
(4) (a) If the contractor submitting the lowest responsive and responsible bid is not a resident contractor and has his principal place of business in any state that gives or requires a preference to contractors from that state, and if a resident contractor has also submitted a responsive and responsible bid, and, with the benefit of the reciprocal preference, the resident contractor's bid is equal to or less than the original lowest bid, the procurement officer shall:
(i) give notice to the resident contractor that he qualifies as a preferred resident contractor; and
(ii) issue the contract to the resident contractor if, within 72 hours after notification to him that he is a preferred resident contractor, he agrees, in writing, to meet the low bid.
(b) The procurement officer shall include the exact price submitted by the lowest bidder in the notice he submits to the preferred resident contractor.
(c) The procurement officer may not enter into a contract with any other bidder for the construction until 72 hours have elapsed after notification to the preferred resident contractor.
(5) (a) If there is more than one preferred resident contractor, the procurement officer shall award the contract to the willing preferred resident contractor who was the lowest preferred resident contractor originally.
(b) If there were two or more equally low preferred resident contractors, the procurement officer shall comply with the rules adopted by the Procurement Policy Board to determine which bidder should be awarded the contract.
(6) The provisions of this section do not apply if application of this section might jeopardize the receipt of federal funds.
Section 1443. Section 63G-6-406, which is renumbered from Section 63-56-406 is renumbered and amended to read:
[63-56-406
]. 63G-6-406. Preference for recycled paper and paper products.(1) As used in this section:
(a) "Chief procurement officer" is the chief procurement officer appointed under Section [63-56-203] 63G-6-203.
(b) "Paper" means any newspaper, high-grade office paper, fine paper, bond paper, offset paper, xerographic paper, mimeographic paper, duplicator paper, and related types of cellulosic material containing not more than 10% by weight or volume of noncellulosic material such as laminates, binders, coatings, or saturants.
(c) "Paper product" means any paper items or commodities, including paper napkins, towels, corrugated and other cardboard, toilet tissue, paper and related types of cellulosic products containing not more than 10% by weight or volume of noncellulosic material such as laminates, binders, coatings, or saturants. "Paper product" does not include preprinted cellulosic products such as books, newspapers, calendars, and magazines.
(d) "Postconsumer waste," "recycled paper," "recycled paper product," and "secondary waste paper material" are defined by rule made by the Division of Purchasing, Department of Administrative Services. The division rules shall be based on current definitions and standards employed by national procurement, product recycling, and other relevant organizations such as the federal Environmental Protection Agency.
(2) Notwithstanding Section [63-56-401] 63G-6-401, which requires public procurement units to purchase products from the lowest responsible bidder, and subject to Subsection (3), every public procurement unit shall give preference to the purchase of paper and paper products which are manufactured or produced from recycled materials.
(3) A public procurement unit shall give preference to purchasing recycled paper and recycled paper products unless:
(a) the bid or purchase price for recycled paper or paper products exceeds by more than 5% the lowest responsive and responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids;
(b) there is no recycled paper or paper product reasonably available that meets the requirements and criteria set forth in the invitation for bids; or
(c) the public procurement unit has purchased at least the minimum percentage purchase requirement of recycled paper or recycled paper products as provided in Subsection (4).
(4) (a) The minimum percentage purchase requirement for fiscal year 1990-91 is 10% of the public procurement unit's projected annual paper and paper product purchases.
(b) The minimum percentage purchase requirement shall be increased by 5% each fiscal year until the minimum percentage purchase requirement is 50%.
(5) Each public procurement unit shall provide the chief procurement officer with a report at the end of each fiscal year documenting:
(a) the dollar amounts of paper and paper products purchased;
(b) the dollar amounts of recycled paper and recycled paper products purchased; and
(c) any additional costs resulting from purchasing recycled paper or recycled paper products.
(6) The chief procurement officer shall provide a written report of the information received under Subsection (5) to the Natural Resources, Agriculture, and Environment Interim Committee prior to November 30 of each year.
(7) (a) Each state agency shall separate and collect all types of recyclable paper for recycling, except under Subsection (7)(b). The chief procurement officer shall maintain an updated list of which papers are recyclable.
(b) If the state agency conducts an evaluation under Subsection (8) and determines the cost of recycling a certain type of recyclable paper is more than 10% greater than the cost of the current disposal method, the entity is exempt from the requirements of Subsection (7)(a) regarding that type of paper.
(8) A state agency's evaluation shall:
(a) determine the types and quantities of recyclable paper in the state agency's current waste stream;
(b) determine the market value of the recyclable paper;
(c) determine and describe the alternatives for separating recyclable paper from the waste stream;
(d) for each type of paper and for each method of separation, determine the cost of separating and collecting the recyclable paper for recycling;
(e) determine the cost of the current disposal method for each type of recyclable paper;
(f) for each type of paper, compare the cost of the current disposal method with the cost of separating and collecting the paper for recycling; and
(g) determine the cost of producing the report required under Subsection (13)(b).
(9) Each evaluation conducted under Subsection (8) shall:
(a) be in writing;
(b) justify all estimates;
(c) be retained by the state agency;
(d) be accessible to the public for review; and
(e) be submitted to the chief procurement officer.
(10) Each state agency conducting an evaluation shall revise the evaluation as necessary, at least every 30 months.
(11) A state agency that is required to separate paper for recycling shall:
(a) designate an existing employee as a recycling coordinator to organize and coordinate the state agency's recycling program;
(b) establish procedures for separating each type of paper required to be separated for recycling;
(c) establish a system for separating and collecting each type of paper to be recycled, which assures the recyclable paper is sold to appropriate industries for reuse or recycling; and
(d) make participation in the recycling program as easy as practicable for state agency personnel by establishing clear policies.
(12) The monies received from the sale of recyclable paper shall be retained by the agency for:
(a) reimbursement to the state agency for program administration costs incurred as a result of recycling, if any; and
(b) funding recycling incentives programs.
(13) (a) The recycling coordinator designated in Subsection (11) shall keep records of:
(i) the quantity of paper recycled by the state agency;
(ii) the costs incurred by the state agency in recycling paper; and
(iii) the monies received from the sale of recyclable paper.
(b) Each recycling coordinator shall provide a written report of the state agency's recycling activities including the information required under Subsection (13)(a) before September 30 of each year to the chief procurement officer.
(14) The chief procurement officer shall provide a written report of the information received under Subsection (13) to the Natural Resources, Agriculture, and Environment Interim Committee prior to November 30 of each year.
Section 1444. Section 63G-6-407, which is renumbered from Section 63-56-407 is renumbered and amended to read:
[63-56-407
]. 63G-6-407. Use of alkaline paper.(1) As used in this section, "alkaline paper" means paper that is acid-free, manufactured with calcium carbonate as the principal filler, and meets standards for paper approved by the American National Standards Institute, National Information Standards Organization, and American Society for Testing and Materials.
(2) (a) Notwithstanding Section [63-56-401] 63G-6-401, which requires public procurement units to purchase products from the lowest responsible bidder, and except as provided in Subsection (2)(b), every public procurement unit shall purchase and use alkaline paper.
(b) A public procurement unit shall purchase alkaline paper unless:
(i) the bid or purchase price for alkaline paper or alkaline recycled paper exceeds the lowest responsive and responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids;
(ii) there is no alkaline or alkaline recycled paper reasonably available that meets the requirements and criteria set forth in the invitation for bids; or
(iii) other paper products have equal or better quality characteristics than alkaline paper and meet standards for paper approved by the American National Standards Institute, National Information Standards Organization, and American Society for Testing and Materials.
(3) The state archivist shall promote the use of alkaline paper within state government, local units of government, and school districts.
Section 1445. Section 63G-6-408, which is renumbered from Section 63-56-408 is renumbered and amended to read:
[63-56-408
]. 63G-6-408. Use of competitive sealed proposals in lieu of bids -- Procedure.(1) (a) When, according to rules established by the Procurement Policy Board, the chief procurement officer, the head of a purchasing agency, or a designee of either officer above the level of procurement officer determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the state, a contract may be entered into by competitive sealed proposals.
(b) (i) Competitive sealed proposals may be used for the procurement of services of consultants, professionals, and providers as defined by the policy board by rule, whether or not the determination described in this subsection has been made.
(ii) The policy board shall make rules establishing guidelines to assure maximum practicable competition in those procurements, including the relative importance, if any, of the fee to be charged by an offeror.
(iii) The rules may provide that it is either not practicable or not advantageous to the state to procure certain types of supplies, services, or construction by competitive sealed bidding or competitive sealed proposals.
(2) (a) Proposals shall be solicited through a request for proposals.
(b) Public notice of the request for proposals shall be given in accordance with policy board rules.
(3) (a) Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation.
(b) A register of proposals shall be prepared in accordance with policy board rules and shall be open for public inspection after the contract is awarded.
(4) The request for proposals shall state the relative importance of price and other evaluating factors.
(5) (a) As provided in the request for proposals and under policy board rules, discussions may be conducted with responsible offerors who submit proposals for the purpose of assuring full understanding of, and responsiveness to, solicitation requirements.
(b) Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be permitted after submissions and before the contract is awarded for the purpose of obtaining best and final offers.
(c) In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.
(6) (a) Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration price and the evaluation factors set forth in the request for proposals.
(b) No other factors or criteria shall be used in the evaluation.
(c) The contract file shall contain the basis on which the award is made.
Section 1446. Section 63G-6-409, which is renumbered from Section 63-56-409 is renumbered and amended to read:
[63-56-409
]. 63G-6-409. Small purchases.Small purchases shall be defined in, and may be made in accordance with procedures established by, rules and regulations; except that the procurement requirement shall not be artificially divided so as to constitute a small purchase under this section.
Section 1447. Section 63G-6-410, which is renumbered from Section 63-56-410 is renumbered and amended to read:
[63-56-410
]. 63G-6-410. Circumstances justifying award of contract without competition.A contract may be awarded for a supply, service, or construction item without competition when, under rules and regulations, the chief procurement officer, the head of a purchasing agency, or a designee of either officer above the level of procurement officer determines in writing that:
(1) there is only one source for the required supply, service, or construction item; or
(2) the award to a specific supplier, service provider, or contractor is a condition of a donation that will fund the full cost of the supply, service, or construction item.
Section 1448. Section 63G-6-411, which is renumbered from Section 63-56-411 is renumbered and amended to read:
[63-56-411
]. 63G-6-411. Emergency procurements.Notwithstanding any other provision of this chapter, when there exists a threat to public health, welfare, or safety under emergency conditions as defined in rules and regulations, the chief procurement officer, the head of a purchasing agency, or a designee of either officer may make or authorize others to make emergency procurements; provided that emergency procurements shall be made with as much competition as practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.
Section 1449. Section 63G-6-412, which is renumbered from Section 63-56-412 is renumbered and amended to read:
[63-56-412
]. 63G-6-412. Cancellation and rejection of bids.An invitation for bids, a request for proposals, or other solicitation may be cancelled, or any or all bids or proposals may be rejected, in whole or in part, as may be specified in the solicitation, when it is in the best interests of the state in accordance with rules and regulations. The reasons shall be made part of the contract file.
Section 1450. Section 63G-6-413, which is renumbered from Section 63-56-413 is renumbered and amended to read:
[63-56-413
]. 63G-6-413. Determination of nonresponsibility of bidder.A written determination of nonresponsibility of a bidder or offeror shall be made in accordance with rules and regulations. The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility with respect to the bidder or offeror. Information furnished by a bidder or offeror pursuant to this section shall not be disclosed outside of the purchasing division or the purchasing agency without prior written consent by the bidder or offeror.
Section 1451. Section 63G-6-414, which is renumbered from Section 63-56-414 is renumbered and amended to read:
[63-56-414
]. 63G-6-414. Prequalification of suppliers.Prospective suppliers may be prequalified for particular types of supplies, services, and construction. Solicitation mailing lists of potential contractors shall include but shall not be limited to prequalified suppliers.
Section 1452. Section 63G-6-415, which is renumbered from Section 63-56-415 is renumbered and amended to read:
[63-56-415
]. 63G-6-415. Rules and regulations to determine allowable incurred costs -- Required information -- Auditing of books.(1) Rules and regulations may be promulgated to set forth cost principles to be used to determine the allowability of incurred costs for the purpose of reimbursing costs under contract provisions which provide for the reimbursement of costs; provided that if a written determination is approved at a level above the procurement officer, the cost principles may be modified by contract.
(2) A person shall, except as provided in Subsection (4), submit cost or pricing data and shall certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted were accurate, complete, and current as of a mutually determined specified date prior to the date of:
(a) the pricing of any contract awarded by competitive sealed proposals or pursuant to the sole source procurement authority, where the total contract price is expected to exceed an amount established by rules and regulations; or
(b) the pricing of any change order which is expected to exceed an amount established by rules and regulations.
(3) Any contract or change order under which a certificate is required shall contain a provision that the price to the state, including profit or fee, shall be adjusted to exclude any significant sums by which the state finds that the price was increased because the contractor-furnished cost or pricing data were inaccurate, incomplete, or not current as of the date agreed upon between the parties.
(4) The requirements of Subsections (2) and (3) need not be applied to contracts:
(a) where the contract price is based on adequate price competition;
(b) where the contract price is based on established catalogue prices or market prices;
(c) where contract prices are set by law or regulation; or
(d) where it is determined in writing in accordance with rules and regulations that the requirements of this section may be waived, and the reasons for such waiver are stated in writing.
(5) The state may, at reasonable times and places, audit the books and records of any person who has submitted cost or pricing data pursuant to this section or any contractor or subcontractor under any negotiated contract or subcontract other than a firm fixed-price contract to the extent that the books and records relate to the cost or pricing data, contract, or subcontract. The books and records shall be maintained by the contractor for three years following the end of the fiscal year in which final payment is made under the prime contract and by the subcontractor for three years following the end of the fiscal year in which final payment is made under the subcontract, unless a shorter period is otherwise authorized in writing.
Section 1453. Section 63G-6-416, which is renumbered from Section 63-56-416 is renumbered and amended to read:
[63-56-416
]. 63G-6-416. Cost-plus-a-percentage-of-cost contract prohibited.(1) Subject to the limitations of this section, any type of contract which will promote the best interests of the state may be used; provided that the use of a cost-plus-a-percentage-of-cost contract is prohibited. A cost-reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the state than any other type or that it is impracticable to obtain the supplies, services, or construction required except under such a contract.
(2) Except with respect to firm fixed-price contracts, no contract type shall be used unless it has been determined in writing by the chief procurement officer, the head of a purchasing agency, or a designee of either officer that:
(a) the proposed contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific contract type contemplated; and
(b) the proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.
Section 1454. Section 63G-6-417, which is renumbered from Section 63-56-417 is renumbered and amended to read:
[63-56-417
]. 63G-6-417. Period of time for contract of supplies.(1) Unless otherwise provided by law, a contract for supplies or services may be entered into for any period of time considered to be in the best interests of the state; provided that the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds.
(2) Prior to the utilization of a multiyear contract, it shall be determined in writing that estimated requirements cover the period of the contract and are reasonably firm and continuing and that such a contract will serve the best interests of the state by encouraging effective competition or otherwise promoting economies in state procurement.
(3) When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled and the contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the supplies or services delivered under the contract. The cost of cancellation may be paid from any appropriations available for that purpose.
Section 1455. Section 63G-6-418, which is renumbered from Section 63-56-418 is renumbered and amended to read:
[63-56-418
]. 63G-6-418. Right of state to inspect place of business of contractor or subcontractor.The state may, at reasonable times, inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the state.
Section 1456. Section 63G-6-419, which is renumbered from Section 63-56-419 is renumbered and amended to read:
[63-56-419
]. 63G-6-419. Determinations final except when arbitrary and capricious.The determinations required by Subsections [63-56-401] 63G-6-401(6), [63-56-408] 63G-6-408(1) and (6), Sections [63-56-410] 63G-6-410, [63-56-411] 63G-6-411, [63-56-413] 63G-6-413, Subsection [63-56-415] 63G-6-415(4), Section [63-56-416] 63G-6-416, and Subsection [63-56-417] 63G-6-417(2) are final and conclusive unless they are arbitrary and capricious or clearly erroneous.
Section 1457. Section 63G-6-420, which is renumbered from Section 63-56-420 is renumbered and amended to read:
[63-56-420
]. 63G-6-420. Factual information to attorney general if collusion suspected.When for any reason collusion or other anticompetitive practices are suspected among bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general.
Section 1458. Section 63G-6-421, which is renumbered from Section 63-56-421 is renumbered and amended to read:
[63-56-421
]. 63G-6-421. Records of contracts made.The chief procurement officer or the head of a purchasing agency shall maintain a record listing all contracts made under Section [63-56-410] 63G-6-410 or [63-56-411] 63G-6-411 and shall maintain the record in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. The record shall contain each contractor's name, the amount and type of each contract, and a listing of the supplies, services, or construction procured under each contract.
Section 1459. Section 63G-6-422, which is renumbered from Section 63-56-422 is renumbered and amended to read:
[63-56-422
]. 63G-6-422. Exemptions from source selection and contract requirements -- Violation penalty.The policy board may, by rule, exempt a public procurement unit from the source selection and contract award provisions of this part, if it considers that to be in the best economic interest of the state.
On projects where public funds or political subdivisions are involved, the owner shall follow the procedures outlined in the Utah Procurement Code when determining or selecting their agent or construction manager. However, no exemption shall be permitted that allows any political subdivision of this state to negotiate, enter into, or cause to be negotiated prior to open bidding for the prime contracting agent any predetermined agreement or arrangement which causes interference with the traditional fair competitive bidding process or the rights of employees under state and federal law. Any agreement or arrangement entered into in violation of this section is unenforceable and void ab initio and the parties to such an agreement or arrangement are subject to a class B misdemeanor penalty.
This provision shall not apply to any political subdivision, agency, or department of this state, if, as a condition of a federal grant, there is a requirement that a schedule of predetermined wages be included in the contract.
Section 1460. Section 63G-6-423, which is renumbered from Section 63-56-423 is renumbered and amended to read:
[63-56-423
]. 63G-6-423. Purchase of prison industry goods.(1) All public procurement units shall purchase goods and services produced by the Utah Correctional Industries Division as provided by this section, which is an exemption from this chapter. All political subdivisions of the state may purchase these goods and services and are encouraged to do so when feasible.
(2) By July 1 of each year, the director of the Utah Correctional Industries shall publish and distribute to all state agencies and interested political subdivisions a catalog of goods and services provided by the Correctional Industries Division. The catalog shall include a description and price of each item offered for sale. The catalog shall be updated and revised during the year as the director considers necessary.
(3) (a) State departments, agencies, and institutions may not purchase any goods or services provided by the Correctional Industries Division from any other source unless it has been determined in writing by the director of Correctional Industries and the state procurement officer or in the case of institutions of higher education, the institutional procurement officer, that purchase from the Correctional Industries Division is not feasible due to one of the following circumstances:
(i) the good or service offered by the division does not meet the reasonable requirements of the purchasing agency;
(ii) the good or service cannot be supplied within a reasonable time by the division; or
(iii) the cost of the good or service, including basic price, transportation costs, and other expenses of acquisition, is not competitive with the cost of procuring the item from another source.
(b) In cases of disagreement, the decision may be appealed to a board consisting of the director of the Department of Corrections, the director of Administrative Services, and a neutral third party agreed upon by the other two members or, in the case of institutions of higher education, the president of the involved institution shall make the final decision.
Section 1461. Section 63G-6-424, which is renumbered from Section 63-56-424 is renumbered and amended to read:
[63-56-424
]. 63G-6-424. Counties and municipalities eligible to participate in state agreements, contracts, and surplus property program.Utah counties, municipalities, and local public procurement units may purchase from or otherwise participate in state public procurement unit agreements and contracts.
Section 1462. Section 63G-6-425, which is renumbered from Section 63-56-425 is renumbered and amended to read:
[63-56-425
]. 63G-6-425. Purchase from community rehabilitation programs.(1) As used in this section:
(a) "Board" means the Purchasing from Persons with Disabilities Advisory Board created under this section.
(b) "Central not-for-profit association" means a group of experts designated by the board to do the following, under guidelines established by the board:
(i) assist the board with its functions; and
(ii) facilitate the implementation of board policies.
(c) (i) "Community rehabilitation program" means a program that is operated primarily for the purpose of the employment and training of persons with a disability by a government agency or qualified nonprofit organization which is an income tax exempt organization under 26 U.S.C. Sec. 501(c)(3) of the Internal Revenue Code.
(ii) A community rehabilitation program:
(A) maintains an employment ratio of at least 75% of the program employees under the procurement contract in question have severe disabilities;
(B) (I) complies with any applicable occupational health and safety standards prescribed by the United States Department of Labor; or
(II) is a supported employment program approved by the Utah State Office of Rehabilitation;
(C) has its principal place of business in Utah;
(D) produces any good provided under this section in Utah; and
(E) provides any service that is provided by individuals with a majority of whom domiciled in Utah.
(d) "Person with a disability" means a person with any disability as defined by and covered under the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
(2) (a) There is created the Purchasing from Persons with Disabilities Advisory Board within the Division of Purchasing and General Services of the Department of Administrative Services. The board shall be composed of the following three members:
(i) the director of the Division of Purchasing and General Services created under Section 63A-2-101 or a designee;
(ii) the executive director of the Utah State Office of Rehabilitation created under Section 53A-24-103 or a designee; and
(iii) a representative of the private business community who shall be appointed to a three-year term by the governor with the advice and consent of the Senate.
(b) The board shall meet, as needed, to facilitate the procurement of goods and services from community rehabilitation programs by a public procurement unit under this chapter by:
(i) identifying goods and services that are available from community rehabilitation programs according to the requirements under Subsection (4);
(ii) approving prices in accordance with Subsection (4)(c) for goods and services that are identified under Subsection (2)(b)(i);
(iii) developing, maintaining, and approving a preferred procurement contract list of goods and services identified and priced under Subsections (2)(b)(i) and (ii);
(iv) reviewing bids received by a community rehabilitation program; and
(v) awarding and renewing specified contracts for set contract times, without competitive bidding, for the purchase of goods and services under Subsection (4).
(c) The provisions of Subsections (2)(b) and (4)(a) are an exception to the procurement provisions under this chapter.
(3) (a) The board may designate a central not-for-profit association, appoint its members, and establish guidelines for its duties.
(b) The designated central not-for-profit association serves at the pleasure of the board and the central not-for-profit association or its individual members may be removed by the board at any time by a majority vote of the board.
(c) Subject to the board guidelines and discretion, a designated central not-for-profit association may be assigned to perform the following duties:
(i) identify qualified community rehabilitation programs and the goods and services that they provide or have the potential to provide;
(ii) help ensure that goods and services are provided at reasonable quality and delivery levels;
(iii) recommend pricing for goods and services;
(iv) reviewing bids and recommending the award of contracts under the board's direction;
(v) collecting and reporting program data to the board and to the division; and
(vi) other duties specified by the board.
(4) Except as provided under Subsection (6), notwithstanding any provision in this chapter to the contrary, each public procurement unit shall purchase goods and services produced by a community rehabilitation program using the preferred procurement contract list approved under Subsection (2)(b)(iii) if:
(a) the good or service offered for sale by a community rehabilitation program reasonably conforms to the needs and specifications of the public procurement unit;
(b) the community rehabilitation program can supply the good or service within a reasonable time; and
(c) the price of the good or service is reasonably competitive with the cost of procuring the good or service from another source.
(5) Each community rehabilitation program:
(a) may submit a bid to the board at any time and not necessarily in response to a request for bids; and
(b) shall certify on any bid it submits to the board or to a public procurement unit under this section that it is claiming a preference under this section.
(6) During a fiscal year, the requirement for a public procurement unit to purchase goods and services produced by a community rehabilitation program under the preferred procurement list under Subsection (4) does not apply if the Division of Purchasing and General Services determines that the total amount of procurement contracts with community rehabilitation programs has reached $5 million for that fiscal year.
(7) In the case of conflict between a purchase under this section and a purchase under Section [63-56-423] 63G-6-423, this section prevails.
Section 1463. Section 63G-6-426, which is renumbered from Section 63-56-426 is renumbered and amended to read:
[63-56-426
]. 63G-6-426. Tie bids -- Preference for providers of state products -- Resolution of tie bids -- Record of tie bids.(1) As used in this section:
(a) (i) "Commodity" means a good, product, material, or item, including an agricultural, manufacturing, or mining product;
(ii) "Commodity" does not include:
(A) a service; or
(B) construction materials or services.
(b) "Provider of state products" means a bidder offering goods, supplies, products, materials, or items that are produced, manufactured, mined, or grown in the state.
(c) "Tie bid" means a low responsive bid from a responsive bidder that is identical in price to a responsive bid from another responsive bidder.
(2) In the event of a tie bid for the provision of a commodity where only one of the bidders having the low responsive bid is a provider of state products, a public procurement unit shall award the contract to the provider of state products if:
(a) the quality of the commodity offered by the provider of state products is equal to or greater than the quality of the commodity offered by the other tied bidders;
(b) the commodity offered by the provider of state products is suitable for the use required by the public procurement unit; and
(c) the provider of state products is able to produce the commodity in sufficient quantity.
(3) Unless Subsection (2) applies, a public procurement unit shall make an award on a tie bid by using one of the following procedures, which shall be selected in the sole discretion of the procurement officer:
(a) where a tie bid includes the cost of delivery, awarding the contract to the bidder closest to the point of delivery;
(b) awarding the contract to the identical bidder who received the previous award, and continue to award succeeding contracts to the same bidder so long as all low bids are tie bids;
(c) awarding the contract to the bidder with the earliest delivery date;
(d) if the price of the tie bid is considered excessive or the bids are unsatisfactory for another reason, rejecting all bids and negotiating a more favorable contact on the open market; or
(e) if the procurement officer determines in writing that no method under this Subsection (3) will equitably resolve the tie bid, awarding the contract by drawing lots.
(4) Awards of tie bids shall not be made by:
(a) dividing business among tied bidders; or
(b) drawing lots, except as provided in Subsection (3)(e).
(5) (a) A state public procurement unit shall retain a record of each invitation for bids on which a tie bid is received, that shall include the following information:
(i) the invitation for bids;
(ii) the supply, service, or construction item requested by the invitation for bids;
(iii) all the bidders and the prices submitted;
(iv) the procedure used to resolve the tie bid; and
(v) the results of the procedure used to resolve the tie bid, including the name of the bidder awarded the contract.
(b) A copy of the record maintained under Subsection (5)(a) shall be provided to the attorney general for all contracts having a tie bid in excess of $50,000.
Section 1464. Section 63G-6-501, which is renumbered from Section 63-56-501 is renumbered and amended to read:
Part 5. Procurement of Construction
[63-56-501]. 63G-6-501. Alternative methods of construction contracting management.
(1) (a) Rules shall provide as many alternative methods of construction contracting management as determined to be feasible.
(b) These rules shall:
(i) grant to the chief procurement officer or the head of the purchasing agency responsible for carrying out the construction project the discretion to select the appropriate method of construction contracting management for a particular project; and
(ii) require the procurement officer to execute and include in the contract file a written statement setting forth the facts which led to the selection of a particular method of construction contracting management for each project.
(c) Before choosing a construction contracting management method, the chief procurement officer or the head of the purchasing agency responsible for carrying out the construction project shall consider the following factors:
(i) when the project must be ready to be occupied;
(ii) the type of project;
(iii) the extent to which the requirements of the procuring agencies and the ways in which they are to be met are known;
(iv) the location of the project;
(v) the size, scope, complexity, and economics of the project;
(vi) the source of funding and any resulting constraints necessitated by the funding source;
(vii) the availability, qualification, and experience of state personnel to be assigned to the project and how much time the state personnel can devote to the project; and
(viii) the availability, qualifications, and experience of outside consultants and contractors to complete the project under the various methods being considered.
(2) (a) Rules adopted by state public procurement units and local public procurement units to implement this section may authorize the use of a Construction Manager/General Contractor as one method of construction contracting management.
(b) Those rules shall require that:
(i) the Construction Manager/General Contractor shall be selected using one of the source selection methods provided for in Part 4, Source Selections and Contract Formation, and Section [63-56-502] 63G-6-502; and
(ii) when entering into any subcontract that was not specifically included in the Construction Manager/General Contractor's cost proposal submitted under the requirements of Subsection (2)(b)(i), the Construction Manager/General Contractor shall procure that subcontractor by using one of the source selection methods provided for in Part 4, Source Selections and Contract Formation, in the same manner as if the subcontract work was procured directly by the state.
(3) Procurement rules adopted by the State Building Board under Subsection (1) for state building construction projects may authorize the use of a design-build provider as one method of construction contracting management.
Section 1465. Section 63G-6-502, which is renumbered from Section 63-56-502 is renumbered and amended to read:
[63-56-502
]. 63G-6-502. Procurement of design-build transportation project contracts.(1) As used in this section:
(a) "Design-build transportation project contract" means the procurement of both the design and construction of a transportation project in a single contract with a company or combination of companies capable of providing the necessary engineering services and construction.
(b) "Transportation agency" means:
(i) the Department of Transportation;
(ii) a county of the first or second class, as defined in Section 17-50-501;
(iii) a municipality of the first class, as defined in Section 10-2-301;
(iv) a public transit district that has more than 200,000 people residing within its boundaries; and
(v) a public airport authority.
(2) Except as provided in Subsection (3), a transportation agency may award a design-build transportation project contract for any transportation project that has an estimated cost of at least $50,000,000 by following the requirements of this section.
(3) (a) The Department of Transportation:
(i) may award a design-build transportation project contract for any transportation project by following the requirements of this section; and
(ii) shall make rules, by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing requirements for the procurement of its design-build transportation project contracts in addition to those required by this section.
(b) A public transit district that has more than 200,000 people residing within its boundaries:
(i) may award a design-build transportation project contract for any transportation project by following the requirements of this section; and
(ii) shall pass ordinances or a resolution establishing requirements for the procurement of its design-build transportation project contracts in addition to those required by this section.
(c) A design-build transportation project contract authorized under this Subsection (3) is not subject to the estimated cost threshold under Subsection (2).
(4) (a) Before entering a design-build transportation project contract, a transportation agency may issue a request for qualifications to prequalify potential contractors.
(b) Public notice of the request for qualifications shall be given in accordance with policy board rules.
(c) A transportation agency shall require, as part of the qualifications specified in the request for qualifications, that potential contractors at least demonstrate their:
(i) construction experience;
(ii) design experience;
(iii) financial, manpower, and equipment resources available for the project; and
(iv) experience in other design-build transportation projects with attributes similar to the project being procured.
(d) The request for qualifications shall identify the number of eligible competing proposers that the transportation agency will select to submit a proposal, which must be at least two.
(5) (a) The transportation agency shall:
(i) evaluate the responses received from the request for qualifications;
(ii) select from their number those qualified to submit proposals; and
(iii) invite those respondents to submit proposals based upon the transportation agency's request for proposals.
(b) (i) Except as provided in Subsection (5)(b)(ii), if the transportation agency fails to receive at least two qualified eligible competing proposers, the transportation agency shall readvertise the project.
(ii) Until July 1, 2010, a transportation agency may award a contract for a transportation project that has an estimated cost of $5,000,000 or less to a qualified eligible proposer if:
(A) only a single proposal is received; and
(B) the transportation agency determines that:
(I) the proposal is advantageous to the state; and
(II) the proposal price is reasonable.
(iii) The Transportation Interim Committee and Government Operations Interim Committee of the Legislature shall review Subsection (5)(b)(ii) prior to November 30, 2009.
(6) The transportation agency shall issue a request for proposals to those qualified respondents that:
(a) includes a scope of work statement constituting an information for proposal that may include:
(i) preliminary design concepts;
(ii) design criteria, needs, and objectives;
(iii) warranty and quality control requirements;
(iv) applicable standards;
(v) environmental documents;
(vi) constraints;
(vii) time expectations or limitations;
(viii) incentives or disincentives; and
(ix) other special considerations;
(b) requires submitters to provide:
(i) a sealed cost proposal;
(ii) a critical path matrix schedule, including cash flow requirements;
(iii) proposal security; and
(iv) other items required by the department for the project; and
(c) may include award of a stipulated fee to be paid to submitters who submit unsuccessful proposals.
(7) The transportation agency shall:
(a) evaluate the submissions received in response to the request for proposals from the prequalified proposers;
(b) comply with rules relating to discussion of proposals, best and final offers, and evaluations of the proposals submitted; and
(c) after considering price and other identified factors, award the contract to the responsible proposer whose proposal is most advantageous to the state.
Section 1466. Section 63G-6-503, which is renumbered from Section 63-56-502.5 is renumbered and amended to read:
[63-56-502.5
]. 63G-6-503. Definitions -- Procurement of tollway development agreements.(1) As used in this section:
(a) "Department" means the Department of Transportation.
(b) "Tollway development agreement" has the same meaning as defined in Section 72-6-202.
(2) The department and the Transportation Commission:
(a) may solicit a tollway development agreement proposal by following the requirements of this section;
(b) may award a solicited tollway development agreement contract for any tollway project by following the requirements of this section; and
(c) shall make rules, by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing requirements for the procurement of tollway development agreement proposals in addition to those required by this section.
(3) (a) Before entering into a tollway development agreement, the department may issue a request for qualifications to prequalify potential contractors.
(b) Public notice of the request for qualifications shall be given in accordance with policy board rules.
(c) The department shall require, as part of the qualifications specified in the request for qualifications, that potential contractors at least provide:
(i) a demonstration of their experience with other transportation concession projects with attributes similar to the project being procured;
(ii) a financial statement of the firm or consortium of firms making the proposal;
(iii) a conceptual project development plan and financing plan;
(iv) the legal structure of the firm or consortium of firms making the proposal;
(v) the organizational structure for the project; and
(vi) a statement describing why the firm or consortium of firms is best qualified for the project.
(d) The request for qualifications shall identify the number of eligible competing proposers that the department will select to submit a proposal.
(4) The department shall:
(a) evaluate the responses received from the request for qualifications;
(b) select from their number those qualified to submit proposals; and
(c) invite those respondents to submit proposals based upon the department's request for proposals.
(5) The department shall issue a request for proposals to those qualified respondents that may require, as appropriate for the procurement:
(a) a description of the proposed project or projects;
(b) a financial plan for the project, including:
(i) the anticipated financial commitment of all parties;
(ii) equity, debt, and other financing mechanisms;
(iii) an analysis of the projected return, rate of return, or both; and
(iv) the monetary benefit and other value to a government entity;
(c) assumptions about user fees or toll rates;
(d) a project development and management plan, including:
(i) the contracting structure;
(ii) the plan for quality management;
(iii) the proposed toll enforcement plan; and
(iv) the plan for safety management; and
(e) the proposal to comply with the minimum guidelines for tollway development agreement proposals under Section 72-6-204.
(6) The department and the Transportation Commission:
(a) shall evaluate the submissions received in response to the request for proposals from the prequalified proposers;
(b) shall comply with rules relating to discussion of proposals, best and final offers, and evaluations of the proposals submitted; and
(c) may after considering price and other identified factors and complying with the requirements of Section 72-6-206, award the contract to the responsible proposer whose proposal is most advantageous to the state.
Section 1467. Section 63G-6-504, which is renumbered from Section 63-56-503 is renumbered and amended to read:
[63-56-503
]. 63G-6-504. Bid security requirements -- Directed suretyship prohibited -- Penalty.(1) Bid security in amount equal to at least 5% of the amount of the bid shall be required for all competitive sealed bidding for construction contracts. Bid security shall be a bond provided by a surety company authorized to do business in this state, the equivalent in cash, or any other form satisfactory to the state.
(2) When a bidder fails to comply with the requirement for bid security set forth in the invitation for bids, the bid shall be rejected unless, pursuant to rules, it is determined that the failure to comply with the security requirements is nonsubstantial.
(3) After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids, except as provided in Subsection [63-56-401] 63G-6-401(6). If a bidder is permitted to withdraw a bid before award, no action shall be taken against the bidder or the bid security.
(4) (a) When issuing an invitation for a bid under this chapter, the chief procurement officer or the head of the purchasing agency responsible for carrying out a construction project may not require a person or entity who is bidding for a contract to obtain a bond of the type referred to in Subsection (1) from a specific insurance or surety company, producer, agent, or broker.
(b) A person who violates Subsection (4)(a) is guilty of an infraction.
Section 1468. Section 63G-6-505, which is renumbered from Section 63-56-504 is renumbered and amended to read:
[63-56-504
]. 63G-6-505. Bonds necessary when contract is awarded -- Waiver -- Action -- Attorneys' fees.(1) When a construction contract is awarded under this chapter, the contractor to whom the contract is awarded shall deliver the following bonds or security to the state, which shall become binding on the parties upon the execution of the contract:
(a) a performance bond satisfactory to the state that is in an amount equal to 100% of the price specified in the contract and is executed by a surety company authorized to do business in this state or any other form satisfactory to the state; and
(b) a payment bond satisfactory to the state that is in an amount equal to 100% of the price specified in the contract and is executed by a surety company authorized to do business in this state or any other form satisfactory to the state, which is for the protection of each person supplying labor, service, equipment, or material for the performance of the work provided for in the contract.
(2) (a) When a construction contract is awarded under this chapter, the chief procurement officer or the head of the purchasing agency responsible for carrying out a construction project may not require a contractor to whom a contract is awarded to obtain a bond of the types referred to in Subsection (1) from a specific insurance or surety company, producer, agent, or broker.
(b) A person who violates Subsection (2)(a) is guilty of an infraction.
(3) Rules may provide for waiver of the requirement of a bid, performance, or payment bond for circumstances in which the state considers any or all of the bonds to be unnecessary to protect the state.
(4) A person shall have a right of action on a payment bond under this section for any unpaid amount due him if:
(a) he has furnished labor, service, equipment, or material for the work provided for in the contract for which the payment bond is furnished under this section; and
(b) he has not been paid in full within 90 days after the last date on which he performed the labor or service or supplied the equipment or material for which the claim is made.
(5) An action upon a payment bond shall be brought in a court of competent jurisdiction in any county where the construction contract was to be performed and not elsewhere. The action is barred if not commenced within one year after the last day on which the claimant performed the labor or service or supplied the equipment or material on which the claim is based. The obligee named in the bond need not be joined as a party to the action.
(6) In any suit upon a payment bond, the court shall award reasonable attorneys' fees to the prevailing party, which fees shall be taxed as costs in the action.
Section 1469. Section 63G-6-506, which is renumbered from Section 63-56-505 is renumbered and amended to read:
[63-56-505
]. 63G-6-506. Preliminary notice requirement.(1) Any person furnishing labor, service, equipment, or material for which a payment bond claim may be made under this chapter shall provide preliminary notice to the designated agent as prescribed by Section 38-1-32, except that this section does not apply:
(a) to a person performing labor for wages; or
(b) if a notice of commencement is not filed as prescribed in Section 38-1-31 for the project or improvement for which labor, service, equipment, or material is furnished.
(2) Any person who fails to provide the preliminary notice required by Subsection (1) may not make a payment bond claim under this chapter.
(3) The preliminary notice required by Subsection (1) must be provided prior to commencement of any action on the payment bond.
Section 1470. Section 63G-6-507, which is renumbered from Section 63-56-506 is renumbered and amended to read:
[63-56-506
]. 63G-6-507. Form of bonds -- Effect of certified copy.The form of the bonds required by this part shall be established by rules and regulations. Any person may obtain from the state a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.
Section 1471. Section 63G-6-601, which is renumbered from Section 63-56-601 is renumbered and amended to read:
Part 6. Contract Clauses
[63-56-601]. 63G-6-601. Required contract clauses -- Computation of price adjustments -- Use of rules and regulations.
(1) Rules and regulations shall require for state construction contracts and may permit or require for state contracts for supplies and services the inclusion of clauses providing for adjustments in prices, time of performance, or other appropriate contract provisions, and covering the following subjects:
(a) the unilateral right of the state to order in writing changes in the work within the scope of the contract and changes in the time of performance of the contract that do not alter the scope of the contract work;
(b) variations occurring between estimated quantities of work in a contract and actual quantities;
(c) suspension of work ordered by the state; and
(d) site conditions differing from those indicated in the construction contract, or ordinarily encountered, except that differing site conditions clauses required by the rules and regulations need not be included in a construction contract when the contract is negotiated, when the contractor provides the site or design, or when the parties have otherwise agreed with respect to the risk of differing site conditions.
(2) Adjustments in price pursuant to clauses promulgated under Subsection (1) shall be computed in one or more of the following ways:
(a) by agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable;
(b) by unit prices specified in the contract or subsequently agreed upon;
(c) by the costs attributable to the events or situations under the clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon;
(d) in any other manner as the contracting parties may mutually agree; or
(e) in the absence of agreement by the parties, by a unilateral determination by the state of the costs attributable to the events or situations under the clauses with adjustment of profit or fee, all as computed by the state in accordance with applicable sections of the rules and regulations issued under Subsection [63-56-415] 63G-6-415(1) and subject to the provisions of Part 8, Legal and Contractual Remedies.
(3) A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of Section [63-56-415] 63G-6-415.
(4) Rules and regulations shall require for state construction contracts and may permit or require for state contracts for supplies and services the inclusion of clauses providing for appropriate remedies and covering at least the following subjects:
(a) liquidated damages as appropriate;
(b) specified excuses for delay or nonperformance;
(c) termination of the contract for default; and
(d) termination of the contract in whole or in part for the convenience of the state.
(5) The contract clauses promulgated under this section shall be set forth in rules and regulations. However, the chief procurement officer or the head of a purchasing agency may modify the clauses for inclusion in any particular contract. Any variations shall be supported by a written determination that describes the circumstances justifying the variations, and notice of any material variation shall be included in the invitation for bids or request for proposals.
Section 1472. Section 63G-6-602, which is renumbered from Section 63-56-602 is renumbered and amended to read:
[63-56-602
]. 63G-6-602. Certification of change order.Under a construction contract, any change order which increases the contract amount shall be subject to prior written certification that the change order is within the determined project or contract budget. The certification shall be made by the fiscal officer of the entity responsible for funding the project or the contract or other official responsible for monitoring and reporting upon the status of the costs of the total project or contract budget. If the certification discloses a resulting increase in the total project or contract budget, the procurement officer shall not execute or make the change order unless sufficient funds are available or the scope of the project or contract is adjusted to permit the degree of completion feasible within the total project or contract budget as it existed prior to the change order under consideration. However, with respect to the validity, as to the contractor, of any executed change order upon which the contractor has reasonably relied, it shall be presumed that there has been compliance with the provisions of this section.
Section 1473. Section 63G-6-701, which is renumbered from Section 63-56-701 is renumbered and amended to read:
Part 7. Architect-Engineer Services
[63-56-701]. 63G-6-701. Policy regarding architect-engineer services.
It is the policy of this state to publicly announce all requirements for architect-engineer services and to negotiate contracts for architect-engineer services on the basis of demonstrated competence and qualification for the type of services required, and at fair and reasonable prices. Architect-engineer services shall be procured as provided in this part except as authorized by Sections [63-56-409] 63G-6-409 through [63-56-411] 63G-6-411. This part does not affect the authority of, and does not apply to procedures undertaken by, a public procurement unit to obtain the services of architects or engineers in the capacity of employees of such unit.
Section 1474. Section 63G-6-702, which is renumbered from Section 63-56-702 is renumbered and amended to read:
[63-56-702
]. 63G-6-702. Selection committee for architect-engineer services.In the procurement of architect-engineer services, the chief procurement officer or the head of a purchasing agency shall encourage firms engaged in the lawful practice of their profession to submit annually a statement of qualifications and performance data. The Building Board shall be the selection committee for architect-engineer services contracts under its authority. Selection committees for architect-engineer services contracts not under the authority of the Building Board shall be established in accordance with rules and regulations promulgated by the policy board. Selection committees shall evaluate current statements of qualifications and performance data on file with the state, together with those that may be submitted by other firms in response to the announcement of the proposed contract. Selection committees shall consider no less than three firms and then shall select therefrom, based upon criteria established and published by the selection committees, no less than three of the firms considered to be the most highly qualified to provide the services required.
Section 1475. Section 63G-6-703, which is renumbered from Section 63-56-703 is renumbered and amended to read:
[63-56-703
]. 63G-6-703. Selection as part of design-build or lease.Notwithstanding any other provision of this chapter, architect-engineer services may be procured under Title 63A, Chapter 5, State Building Board - Division of Facilities Construction and Management, as part of the services obtained in a design-build contract or as part of the services obtained in a lease contract for real property, provided that the qualifications of those providing the architect-engineer services are part of the consideration in the selection process.
Section 1476. Section 63G-6-704, which is renumbered from Section 63-56-704 is renumbered and amended to read:
[63-56-704
]. 63G-6-704. Determination of compensation for architect-engineer services.The procurement officer shall award a contract to a qualified firm at compensation which the procurement officer determines in writing to be fair and reasonable to the state. In making this decision, the procurement officer shall take into account the estimated value, the scope, and complexity, and the professional nature of the services to be rendered. Should the procurement officer be unable to agree to a satisfactory contract with the firm first selected, at a price the procurement officer determines to be fair and reasonable to the state, discussions with that firm shall be formally terminated. The procurement officer shall then undertake discussions with a second qualified firm. Failing accord with the second firm, the procurement officer shall formally terminate discussions. The procurement officer shall then undertake discussions with a third qualified firm. Should the procurement officer be unable to award a contract at a fair and reasonable price with any of the selected firms, the procurement officer shall select additional firms, and the procurement officer shall continue discussions in accordance with this part until an agreement is reached.
Section 1477. Section 63G-6-705, which is renumbered from Section 63-56-705 is renumbered and amended to read:
[63-56-705
]. 63G-6-705. Restrictions on state agency procurement of architect-engineer services.(1) Except as provided in Subsection (2), when a public procurement unit, in accordance with Section [63-56-701] 63G-6-701, elects to obtain architect or engineering services by using a competitive procurement process and has provided public notice of its competitive procurement process:
(a) a higher education entity, or any part of one, may not submit a proposal in response to the public procurement unit's competitive procurement process; and
(b) the public procurement unit may not award a contract to perform the architect or engineering services solicited in the competitive procurement process to a higher education entity or any part of one.
(2) A public procurement unit need not comply with the requirements of Subsection (1) when the public procurement unit is procuring architect or engineer services for contracts related to research activities and technology transfer.
Section 1478. Section 63G-6-801, which is renumbered from Section 63-56-801 is renumbered and amended to read:
Part 8. Legal and Contractual Remedies
[63-56-801]. 63G-6-801. Protest to chief procurement officer -- Time -- Authority to resolve protest.
(1) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the chief procurement officer or the head of a purchasing agency. A protest with respect to an invitation for bids or a request for proposals shall be submitted in writing prior to the opening of bids or the closing date for proposals, unless the aggrieved person did not know and should not have known of the facts giving rise to the protest prior to bid opening or the closing date for proposals. The protest shall be submitted in writing within five working days after the aggrieved person knows or should have known of the facts giving rise thereto.
(2) The chief procurement officer, the head of a purchasing agency, or a designee of either officer shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve the protest.
Section 1479. Section 63G-6-802, which is renumbered from Section 63-56-802 is renumbered and amended to read:
[63-56-802
]. 63G-6-802. Effect of timely protest.In the event of a timely protest under Subsection [63-56-801] 63G-6-801(1), [63-56-810] 63G-6-810(1), or [63-56-815] 63G-6-815(1), the state shall not proceed further with the solicitation or with the award of the contract until all administrative and judicial remedies have been exhausted or until the chief procurement officer, after consultation with the head of the using agency or the head of a purchasing agency, makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the state.
Section 1480. Section 63G-6-803, which is renumbered from Section 63-56-803 is renumbered and amended to read:
[63-56-803
]. 63G-6-803. Costs to or against protestor.(1) When a protest is sustained administratively or upon administrative or judicial review and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, the protestor shall be entitled to the following relief as a claim against the state:
(a) the reasonable costs incurred in connection with the solicitation, including bid preparation and appeal costs; and
(b) any equitable relief determined to be appropriate by the reviewing administrative or judicial body.
(2) When a protest is not sustained by the Procurement Appeals Board, the protestor shall reimburse the Division of Purchasing and General Services for the per diem and expenses paid by the division to witnesses or appeals board members and any additional expenses incurred by the state agency staff who have provided materials and administrative services to the board for that case.
Section 1481. Section 63G-6-804, which is renumbered from Section 63-56-804 is renumbered and amended to read:
[63-56-804
]. 63G-6-804. Debarment from consideration for award of contracts -- Causes for debarment.(1) After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the chief procurement officer or the head of a purchasing agency, after consultation with the using agency and the attorney general, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period exceeding three years. The same officer, after consultation with the using agency and the attorney general, shall have authority to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall not be for a period exceeding three months unless an indictment has been issued for an offense which would be a cause for debarment under Subsection (2), in which case the suspension shall, at the request of the attorney general, remain in effect until after the trial of the suspended person.
(2) The causes for debarment include the following:
(a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of such contract or subcontract;
(b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a state contractor;
(c) conviction under state or federal antitrust statutes;
(d) failure without good cause to perform in accordance with the terms of the contract; or
(e) any other cause the chief procurement officer, or the head of a purchasing agency determines to be so serious and compelling as to affect responsibility as a state contractor, including debarment by another governmental entity for any cause listed in rules and regulations.
Section 1482. Section 63G-6-805, which is renumbered from Section 63-56-805 is renumbered and amended to read:
[63-56-805
]. 63G-6-805. Authority to resolve controversy between state and contractor.The chief procurement officer, the head of a purchasing agency, or a designee of either officer is authorized, prior to commencement of an action in court concerning the controversy, to settle and resolve a controversy which arises between the state and a contractor under or by virtue of a contract between them. This includes, without limitation, controversies based upon breach of contract, mistakes, misrepresentation, or other cause for contract modification or rescission.
Section 1483. Section 63G-6-806, which is renumbered from Section 63-56-806 is renumbered and amended to read:
[63-56-806
]. 63G-6-806. Decisions of chief procurement officer to be in writing -- Effect of no writing.(1) The chief procurement officer, the head of a purchasing agency, or the designee of either officer shall promptly issue a written decision regarding any protest, debarment or suspension, or contract controversy if it is not settled by a mutual agreement. The decision shall state the reasons for the action taken and inform the protestor, contractor, or prospective contractor of the right to judicial or administrative review as provided in this chapter.
(2) A decision shall be effective until stayed or reversed on appeal, except to the extent provided in Section [63-56-802] 63G-6-802. A copy of the decision under Subsection (1) shall be mailed or otherwise furnished immediately to the protestor, prospective contractor, or contractor. The decision shall be final and conclusive unless the protestor, prospective contractor, or contractor appeals administratively to the procurement appeals board in accordance with Subsection [63-56-810] 63G-6-810(2) or the protestor, prospective contractor, or contractor commences an action in district court in accordance with Section [63-56-815] 63G-6-815.
(3) If the chief procurement officer, the head of a purchasing agency, or the designee of either officer does not issue the written decision regarding a contract controversy within 60 calendar days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.
Section 1484. Section 63G-6-807, which is renumbered from Section 63-56-807 is renumbered and amended to read:
[63-56-807
]. 63G-6-807. Creation of Procurement Appeals Board.(1) (a) A Procurement Appeals Board is created in the executive branch. The Procurement Appeals Board shall be composed of a chair and one other member, to be appointed by the governor, and a third member to be designated by the two appointed members on a case-by-case basis.
(b) None of the members of the Procurement Appeals Board shall otherwise be full-time employees of the state.
(c) The appointed members of the Procurement Appeals Board shall have been members in good standing of the state bar for at least five years and shall be experienced in contract or commercial matters.
(d) The designated member shall possess the technical expertise and experience needed for the proper disposition of the factual issues presented by the case.
(2) (a) Except as required by Subsection (2)(b), as terms of current board members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(c) The designated member shall serve for the case on which designated until the final disposition of the case.
(d) Appointed members may be reappointed for succeeding terms and may continue to serve after the expiration of their terms until a successor takes office.
(e) Qualified persons may be redesignated as members.
(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(4) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
Section 1485. Section 63G-6-808, which is renumbered from Section 63-56-808 is renumbered and amended to read:
[63-56-808
]. 63G-6-808. Rules of procedure to be adopted.The Procurement Appeals Board shall adopt rules of procedure which, to the fullest extent possible, will provide for the expeditious resolution of controversies, including procedures to encourage agreements between the parties to a controversy prior to a hearing. The board may adopt small claims procedures for the resolution of controversies involving claims of less than $15,000.
Section 1486. Section 63G-6-809, which is renumbered from Section 63-56-809 is renumbered and amended to read:
[63-56-809
]. 63G-6-809. Decisions to be in writing.The Procurement Appeals Board shall issue a decision in writing or take other appropriate action of each appeal submitted. A copy of any decision shall be provided to all parties and the chief procurement officer or the head of a purchasing agency.
Section 1487. Section 63G-6-810, which is renumbered from Section 63-56-810 is renumbered and amended to read:
[63-56-810
]. 63G-6-810. Jurisdiction of Procurement Appeals Board.Unless an action has been initiated previously in district courts for essentially the same cause of action, the board shall have jurisdiction to review and determine de novo:
(1) any protest of a solicitation or award of a contract addressed to the board by an aggrieved actual or prospective bidder or offeror, or a contractor; and
(2) any appeal by an aggrieved party from a decision rendered or considered to have been rendered pursuant to Section [63-56-806] 63G-6-806.
Section 1488. Section 63G-6-811, which is renumbered from Section 63-56-811 is renumbered and amended to read:
[63-56-811
]. 63G-6-811. Time limits to file protest or appeal -- Effect of filing.(1) For a protest under Subsection [63-56-810] 63G-6-810(1), the aggrieved person shall file a protest with the board within five working days after the aggrieved person knows or should have known of the facts and circumstances upon which the protest is based; provided, however, that a protest with respect to an invitation for bids or request for proposals shall be filed prior to the opening of bids or the closing date for proposals unless the aggrieved person did not know and should not have known of the facts giving rise to the protest prior to bid opening or the closing date for proposals.
(2) For an appeal from a decision regarding a protested solicitation or award, the aggrieved person shall file an appeal within seven calendar days of receipt of a decision rendered or considered to have been rendered pursuant to Section [63-56-806] 63G-6-806.
(3) For an appeal from a decision regarding a debarment, suspension, or contract controversy, the aggrieved person shall file an appeal within 60 calendar days of receipt of a decision rendered or considered to have been rendered pursuant to Section [63-56-806] 63G-6-806.
Section 1489. Section 63G-6-812, which is renumbered from Section 63-56-812 is renumbered and amended to read:
[63-56-812
]. 63G-6-812. Discontinued appeal with prejudice, except as authorized.After notice of an appeal has been filed with the Procurement Appeals Board, no party may discontinue the appeal without prejudice, except as authorized by the Procurement Appeals Board.
Section 1490. Section 63G-6-813, which is renumbered from Section 63-56-813 is renumbered and amended to read:
[63-56-813
]. 63G-6-813. Factual determination of appeals board final and conclusive.(1) On any protest or appeal under Section [63-56-810] 63G-6-810, the Procurement Appeals Board shall promptly decide the contract controversy or whether the solicitation or award was in accordance with this chapter. Any prior determinations by administrative officials regarding protests of solicitations or awards, suspension or debarments, contract controversies, or breach of contract controversies shall not be final or conclusive.
(2) A determination of an issue of fact by the Procurement Appeals Board under Subsection (1) shall be final and conclusive unless arbitrary and capricious or clearly erroneous. No determination on an issue of law shall be final or conclusive.
Section 1491. Section 63G-6-814, which is renumbered from Section 63-56-814 is renumbered and amended to read:
[63-56-814
]. 63G-6-814. Right to appeal to Court of Appeals.Any person receiving an adverse decision or the state may appeal a decision of the Procurement Appeals Board to the Court of Appeals. However, no appeal may be made by the state unless recommended by the chief procurement officer or the head of the purchasing agency involved, and approved by the attorney general.
Section 1492. Section 63G-6-815, which is renumbered from Section 63-56-815 is renumbered and amended to read:
[63-56-815
]. 63G-6-815. Jurisdiction of district court.(1) The district court shall have jurisdiction over an action, whether the action is at law or in equity, between the state and:
(a) a bidder, offeror, or contractor, prospective or actual, who is aggrieved in connection with the solicitation or award of a contract;
(b) a person who is subject to a suspension or debarment proceeding; and
(c) a contractor, for any cause of action which arises under, or by virtue of a contract.
(2) The provisions of [Title 63, Chapter 30d] Title 63G, Chapter 7, Part 4, Notice of Claim Against a Governmental Entity or a Government Employee, and Section [63-30d-601] 63G-7-601 do not apply to actions brought under this chapter by an aggrieved party for equitable relief or reasonable costs incurred in preparing or appealing an unsuccessful bid or offer.
Section 1493. Section 63G-6-816, which is renumbered from Section 63-56-816 is renumbered and amended to read:
[63-56-816
]. 63G-6-816. Effect of prior determination by agents of state.In any judicial action under Section [63-56-815] 63G-6-815, determinations by employees, agents, or other persons appointed by the state shall be final and conclusive only as provided in Sections [63-56-419] 63G-6-419 and [63-56-806] 63G-6-806, and Subsection [63-56-813] 63G-6-813(2).
Section 1494. Section 63G-6-817, which is renumbered from Section 63-56-817 is renumbered and amended to read:
[63-56-817
]. 63G-6-817. Statutes of limitations.(1) Any action under Subsection [63-56-815] 63G-6-815(1)(a) shall be initiated as follows:
(a) within 20 calendar days after the aggrieved person knows or should have known of the facts giving rise to the action; provided, however, that an action with respect to an invitation for bids or request for proposals shall be initiated prior to the opening of bids or the closing date for proposals unless the aggrieved person did not know and should not have known of the facts giving rise to the action prior to bid opening or the closing date for proposals; or
(b) within 14 calendar days after receipt of a final administrative decision pursuant to either Section [63-56-806] 63G-6-806 or Section [63-56-813] 63G-6-813, whichever is applicable.
(2) Any action under Subsection [63-56-815] 63G-6-815(1)(b) shall be commenced within six months after receipt of a final administrative decision pursuant to Section [63-56-806] 63G-6-806 or Section [63-56-813] 63G-6-813, whichever is applicable.
(3) The statutory limitations on an action between private persons on a contract or for breach of contract shall apply to any action commenced pursuant to Subsection [63-56-815] 63G-6-815(1)(c), except notice of appeals from the Procurement Appeals Board pursuant to Section [63-56-814] 63G-6-814 concerning actions on a contract or for breach of contract shall be filed within one year after the date of the Procurement Appeals Board decision.
Section 1495. Section 63G-6-818, which is renumbered from Section 63-56-818 is renumbered and amended to read:
[63-56-818
]. 63G-6-818. Effect of violation prior to award of contract.If prior to award it is determined administratively or upon administrative or judicial review that a solicitation or proposed award of a contract is in violation of law, the solicitation or proposed award shall be cancelled or revised to comply with the law.
Section 1496. Section 63G-6-819, which is renumbered from Section 63-56-819 is renumbered and amended to read:
[63-56-819
]. 63G-6-819. Effect of violation after award of contract.If after an award it is determined administratively or upon administrative or judicial review that a solicitation or award of a contract is in violation of law:
(1) If the person awarded the contract has not acted fraudulently or in bad faith:
(a) The contract may be ratified and affirmed if it is determined that doing so is in the best interests of the state; or
(b) The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract prior to termination, plus a reasonable profit;
(2) If the person awarded the contract has acted fraudulently or in bad faith:
(a) The contract may be declared null and void; or
(b) The contract may be ratified and affirmed if such action is in the best interests of the state, without prejudice to the state's rights to any appropriate damages.
Section 1497. Section 63G-6-820, which is renumbered from Section 63-56-820 is renumbered and amended to read:
[63-56-820
]. 63G-6-820. Interest rate.(1) Except as provided in Subsection (2), in controversies between the state and contractors under this part, interest on amounts ultimately determined to be due to a contractor or to the state are payable at the rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later.
(2) This section does not apply to public assistance benefits programs.
Section 1498. Section 63G-6-901, which is renumbered from Section 63-56-901 is renumbered and amended to read:
Part 9. Intergovernmental Relations
[63-56-901]. 63G-6-901. Agreements between public procurement units.
Under the terms agreed upon among the parties, any public procurement unit may enter into agreements with one or more other public procurement units to:
(1) sponsor, conduct, or administer a cooperative agreement for the procurement or disposal of any supplies, services, or construction;
(2) cooperatively use supplies or services;
(3) commonly use or share warehousing facilities, capital equipment, and other facilities;
(4) provide personnel; provided that the requesting public procurement unit shall pay the public procurement unit providing the personnel the direct and indirect cost of providing the personnel, in accordance with the agreement; or
(5) make available informational, technical, and other services, provided that the requirements of the public procurement unit tendering the services shall have precedence over the requesting public procurement unit and that the requesting public procurement unit shall pay for the expenses of the services so provided, in accordance with the agreement.
Section 1499. Section 63G-6-902, which is renumbered from Section 63-56-902 is renumbered and amended to read:
[63-56-902
]. 63G-6-902. Services between public procurement units.(1) Upon request, any public procurement unit may make available to other public procurement units the following services, among others: standard forms; printed manuals; qualified products lists; source information; common use commodities listings; supplier prequalification information; supplier performance ratings; debarred and suspended bidders lists; forms for invitation for bids, requests for proposals, instructions to bidders, general contract provisions, and other contract forms; and contracts or published summaries thereof, including price and time of delivery information.
(2) Any public procurement unit may provide the following technical services, among others, to other public procurement units; development of specifications; development of quality assurance test methods, including receiving, inspection, and acceptance procedures; use of testing and inspection facilities; and use of personnel training programs.
(3) Public procurement units may enter into contractual arrangements and publish a schedule of fees for the services provided under Subsections (1) and (2).
Section 1500. Section 63G-6-903, which is renumbered from Section 63-56-903 is renumbered and amended to read:
[63-56-903
]. 63G-6-903. Payments between public procurement units.All payments from any public procurement unit received by a public procurement unit supplying personnel or services shall be available to the supplying public procurement unit.
Section 1501. Section 63G-6-904, which is renumbered from Section 63-56-904 is renumbered and amended to read:
[63-56-904
]. 63G-6-904. Compliance by one public procurement unit pursuant to agreement considered compliance by others to agreement.Where the public procurement unit administering a cooperative purchase complies with the requirements of this chapter, any public procurement unit participating in such a purchase shall be considered to have complied with this chapter. Public procurement units may not enter into a cooperative purchasing agreement for the purpose of circumventing this chapter.
Section 1502. Section 63G-6-905, which is renumbered from Section 63-56-905 is renumbered and amended to read:
[63-56-905
]. 63G-6-905. Chief procurement officer to collect information as to supplies, etc.To the extent possible, the chief procurement officer may collect information concerning the type, cost, quality, and quantity of commonly used supplies, services, or construction being procured or used by state public procurement units and local public procurement units. The chief procurement officer may make the information available to any public procurement unit upon request.
Section 1503. Section 63G-6-906, which is renumbered from Section 63-56-906 is renumbered and amended to read:
[63-56-906
]. 63G-6-906. Resolving controversy arising under a cooperative purchasing agreement.Under a cooperative purchasing agreement, controversies arising between an administering state public procurement unit and its bidders, offerors, or contractors shall be resolved in accordance with Part 8, Legal and Contractual Remedies.
Section 1504. Section 63G-6-907, which is renumbered from Section 63-56-907 is renumbered and amended to read:
[63-56-907
]. 63G-6-907. Resolution of local public procurement controversies.Any local public procurement unit is authorized to enter into an agreement with the State Procurement Appeals Board to resolve controversies between the local public procurement unit and its contractors, whether or not such controversy arose from a cooperative purchasing agreement.
Section 1505. Section 63G-6-1001, which is renumbered from Section 63-56-1001 is renumbered and amended to read:
Part 10. Illegal Activities
[63-56-1001]. 63G-6-1001. Felony to accept emolument.
Any person acting as a procurement officer for the state of Utah or any subdivision thereof, or who in any official capacity participates in the procurement of any supplies, services, construction, real property, or insurance for any such political units, is guilty of a felony if the person asks, receives, or offers to receive any emolument, gratuity, contribution, loan, or reward, or any promise thereof, either for the person's own use or the use or benefit of any other person or organization from any person interested in the sale of such supplies, services, construction, real property, or insurance.
Section 1506. Section 63G-6-1002, which is renumbered from Section 63-56-1002 is renumbered and amended to read:
[63-56-1002
]. 63G-6-1002. Felony to offer emolument.A person who is interested in any way in the sale of any supplies, services, construction, real property, or insurance to the state of Utah or any political subdivision thereof, is guilty of a felony if the person gives or offers to give any emolument, gratuity, contribution, loan or reward, or any promise thereof to any person acting as a procurement officer, or who in any official capacity participates in the procurement of such supplies, services, construction, real property, or insurance, whether it is given for his own use or for the use or benefit of any other person or organization.
Section 1507. Section 63G-7-101, which is renumbered from Section 63-30d-101 is renumbered and amended to read:
CHAPTER 7. GOVERNMENTAL IMMUNITY ACT OF UTAH
Part 1. General Provisions
[63-30d-101]. 63G-7-101. Title, scope, and intent.
(1) This chapter is known as the "Governmental Immunity Act of Utah."
(2) (a) The waivers and retentions of immunity found in this chapter apply to all functions of government, no matter how labeled.
(b) This single, comprehensive chapter governs all claims against governmental entities or against their employees or agents arising out of the performance of the employee's duties, within the scope of employment, or under color of authority.
Section 1508. Section 63G-7-102, which is renumbered from Section 63-30d-102 is renumbered and amended to read:
[63-30d-102
]. 63G-7-102. Definitions.As used in this chapter:
(1) "Claim" means any asserted demand for or cause of action for money or damages, whether arising under the common law, under state constitutional provisions, or under state statutes, against a governmental entity or against an employee in the employee's personal capacity.
(2) (a) "Employee" includes:
(i) a governmental entity's officers, employees, servants, trustees, or commissioners;
(ii) members of a governing body;
(iii) members of a government entity board;
(iv) members of a government entity commission;
(v) members of an advisory body, officers, and employees of a Children's Justice Center created in accordance with Section 67-5b-104;
(vi) student teachers holding a letter of authorization in accordance with Sections 53A-6-103 and 53A-6-104;
(vii) educational aides;
(viii) students engaged in providing services to members of the public in the course of an approved medical, nursing, or other professional health care clinical training program;
(ix) volunteers as defined by Subsection 67-20-2(3); and
(x) tutors.
(b) "Employee" includes all of the positions identified in Subsection (2)(a), whether or not the individual holding that position receives compensation.
(c) "Employee" does not include an independent contractor.
(3) "Governmental entity" means the state and its political subdivisions as both are defined in this section.
(4) (a) "Governmental function" means each activity, undertaking, or operation of a governmental entity.
(b) "Governmental function" includes each activity, undertaking, or operation performed by a department, agency, employee, agent, or officer of a governmental entity.
(c) "Governmental function" includes a governmental entity's failure to act.
(5) "Injury" means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person or estate, that would be actionable if inflicted by a private person or his agent.
(6) "Personal injury" means an injury of any kind other than property damage.
(7) "Political subdivision" means any county, city, town, school district, community development and renewal agency, special improvement or taxing district, local district, special service district, an entity created by an interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation Act, or other governmental subdivision or public corporation.
(8) "Property damage" means injury to, or loss of, any right, title, estate, or interest in real or personal property.
(9) "State" means the state of Utah, and includes each office, department, division, agency, authority, commission, board, institution, hospital, college, university, Children's Justice Center, or other instrumentality of the state.
(10) "Willful misconduct" means the intentional doing of a wrongful act, or the wrongful failure to act, without just cause or excuse, where the actor is aware that his conduct will probably result in injury.
Section 1509. Section 63G-7-201, which is renumbered from Section 63-30d-201 is renumbered and amended to read:
Part 2. Governmental Immunity - Statement, Scope, and Effect
[63-30d-201]. 63G-7-201. Immunity of governmental entities from suit.
(1) Except as may be otherwise provided in this chapter, each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function.
(2) Notwithstanding the waiver of immunity provisions of Section [63-30d-301] 63G-7-301, a governmental entity, its officers, and its employees are immune from suit for any injury or damage resulting from the implementation of or the failure to implement measures to:
(a) control the causes of epidemic and communicable diseases and other conditions significantly affecting the public health or necessary to protect the public health as set out in Title 26A, Chapter 1, Local Health Departments;
(b) investigate and control suspected bioterrorism and disease as set out in Title 26, Chapter 23b, Detection of Public Health Emergencies Act; and
(c) respond to a national, state, or local emergency, a public health emergency as defined in Section 26-23b-102, or a declaration by the President of the United States or other federal official requesting public health related activities.
Section 1510. Section 63G-7-202, which is renumbered from Section 63-30d-202 is renumbered and amended to read:
[63-30d-202
]. 63G-7-202. Act provisions not construed as admission or denial of liability -- Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on personal liability.(1) (a) Nothing contained in this chapter, unless specifically provided, may be construed as an admission or denial of liability or responsibility by or for a governmental entity or its employees.
(b) If immunity from suit is waived by this chapter, consent to be sued is granted, and liability of the entity shall be determined as if the entity were a private person.
(c) No cause of action or basis of liability is created by any waiver of immunity in this chapter, nor may any provision of this chapter be construed as imposing strict liability or absolute liability.
(2) Nothing in this chapter may be construed as adversely affecting any immunity from suit that a governmental entity or employee may otherwise assert under state or federal law.
(3) (a) Except as provided in Subsection (3)(c), an action under this chapter against a governmental entity for an injury caused by an act or omission that occurs during the performance of an employee's duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.
(b) Judgment under this chapter against a governmental entity is a complete bar to any action by the claimant, based upon the same subject matter, against the employee whose act or omission gave rise to the claim.
(c) A plaintiff may not bring or pursue any civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless:
(i) the employee acted or failed to act through fraud or willful misconduct;
(ii) the injury or damage resulted from the employee driving a vehicle, or being in actual physical control of a vehicle:
(A) with a blood alcohol content equal to or greater by weight than the established legal limit;
(B) while under the influence of alcohol or any drug to a degree that rendered the person incapable of safely driving the vehicle; or
(C) while under the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely driving the vehicle;
(iii) injury or damage resulted from the employee being physically or mentally impaired so as to be unable to reasonably perform his or her job function because of:
(A) the use of alcohol;
(B) the nonprescribed use of a controlled substance as defined in Section 58-37-4; or
(C) the combined influence of alcohol and a nonprescribed controlled substance as defined by Section 58-37-4; or
(iv) in a judicial or administrative proceeding, the employee intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry under this section.
(4) Except as permitted in Subsection (3)(c), no employee may be joined or held personally liable for acts or omissions occurring:
(a) during the performance of the employee's duties;
(b) within the scope of employment; or
(c) under color of authority.
Section 1511. Section 63G-7-203, which is renumbered from Section 63-30d-203 is renumbered and amended to read:
[63-30d-203
]. 63G-7-203. Exemptions for certain takings actions.An action that involves takings law, as defined in Section [63-90-2] 63L-3-102, is not subject to the requirements of Sections [63-30d-401] 63G-7-401, [63-30d-402] 63G-7-402, [63-30d-403] 63G-7-403, and [63-30d-601] 63G-7-601.
Section 1512. Section 63G-7-301, which is renumbered from Section 63-30d-301 is renumbered and amended to read:
Part 3. Waivers of Immunity
[63-30d-301]. 63G-7-301. Waivers of immunity -- Exceptions.
(1) (a) Immunity from suit of each governmental entity is waived as to any contractual obligation.
(b) Actions arising out of contractual rights or obligations are not subject to the requirements of Sections [63-30d-401] 63G-7-401, [63-30d-402] 63G-7-402, [63-30d-403] 63G-7-403, or [63-30d-601] 63G-7-601.
(c) The Division of Water Resources is not liable for failure to deliver water from a reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development Act, if the failure to deliver the contractual amount of water is due to drought, other natural condition, or safety condition that causes a deficiency in the amount of available water.
(2) Immunity from suit of each governmental entity is waived:
(a) as to any action brought to recover, obtain possession of, or quiet title to real or personal property;
(b) as to any action brought to foreclose mortgages or other liens on real or personal property, to determine any adverse claim on real or personal property, or to obtain an adjudication about any mortgage or other lien that the governmental entity may have or claim on real or personal property;
(c) as to any action based on the negligent destruction, damage, or loss of goods, merchandise, or other property while it is in the possession of any governmental entity or employee, if the property was seized for the purpose of forfeiture under any provision of state law;
(d) subject to Subsection [63-30d-302] 63G-7-302(1), as to any action brought under the authority of Article I, Section 22, of the Utah Constitution, for the recovery of compensation from the governmental entity when the governmental entity has taken or damaged private property for public uses without just compensation;
(e) subject to Subsection [63-30d-302] 63G-7-302(2), as to any action brought to recover attorney fees under Sections [63-2-405] 63G-2-405 and [63-2-802] 63G-2-802;
(f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees Act; or
(g) as to any action brought to obtain relief from a land use regulation that imposes a substantial burden on the free exercise of religion under [Title 63, Chapter 90b] Title 63L, Chapter 5, Utah Religious Land Use Act.
(3) (a) Except as provided in Subsection (3)(b), immunity from suit of each governmental entity is waived as to any injury caused by:
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) any defective or dangerous condition of a public building, structure, dam, reservoir, or other public improvement.
(b) Immunity from suit of each governmental entity is not waived if the injury arises out of, in connection with, or results from:
(i) a latent dangerous or latent defective condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) a latent dangerous or latent defective condition of any public building, structure, dam, reservoir, or other public improvement.
(4) Immunity from suit of each governmental entity is waived as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.
(5) Immunity from suit of each governmental entity is not waived under Subsections (3) and (4) if the injury arises out of, in connection with, or results from:
(a) the exercise or performance, or the failure to exercise or perform, a discretionary function, whether or not the discretion is abused;
(b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation of civil rights;
(c) the issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization;
(d) a failure to make an inspection or by making an inadequate or negligent inspection;
(e) the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause;
(f) a misrepresentation by an employee whether or not it is negligent or intentional;
(g) riots, unlawful assemblies, public demonstrations, mob violence, and civil disturbances;
(h) the collection of and assessment of taxes;
(i) the activities of the Utah National Guard;
(j) the incarceration of any person in any state prison, county or city jail, or other place of legal confinement;
(k) any natural condition on publicly owned or controlled lands;
(l) any condition existing in connection with an abandoned mine or mining operation;
(m) any activity authorized by the School and Institutional Trust Lands Administration or the Division of Forestry, Fire, and State Lands;
(n) the operation or existence of a pedestrian or equestrian trail that is along a ditch, canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river, if:
(i) the trail is designated under a general plan adopted by a municipality under Section 10-9a-401 or by a county under Section 17-27a-401;
(ii) the trail right-of-way or the right-of-way where the trail is located is open to public use as evidenced by a written agreement between the owner or operator of the trail right-of-way, or of the right-of-way where the trail is located, and the municipality or county where the trail is located; and
(iii) the written agreement:
(A) contains a plan for operation and maintenance of the trail; and
(B) provides that an owner or operator of the trail right-of-way or of the right-of-way where the trail is located has, at minimum, the same level of immunity from suit as the governmental entity in connection with or resulting from the use of the trail.
(o) research or implementation of cloud management or seeding for the clearing of fog;
(p) the management of flood waters, earthquakes, or natural disasters;
(q) the construction, repair, or operation of flood or storm systems;
(r) the operation of an emergency vehicle, while being driven in accordance with the requirements of Section [41-6a-208] 41-6a-212;
(s) the activities of:
(i) providing emergency medical assistance;
(ii) fighting fire;
(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(iv) emergency evacuations;
(v) transporting or removing injured persons to a place where emergency medical assistance can be rendered or where the person can be transported by a licensed ambulance service; or
(vi) intervening during dam emergencies;
(t) the exercise or performance, or the failure to exercise or perform, any function pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources; or
(u) unauthorized access to government records, data, or electronic information systems by any person or entity.
Section 1513. Section 63G-7-302, which is renumbered from Section 63-30d-302 is renumbered and amended to read:
[63-30d-302
]. 63G-7-302. Specific remedies -- "Takings" actions -- Government Records Access and Management Actions.(1) In any action brought under the authority of Article I, Section 22, of the Utah Constitution for the recovery of compensation from the governmental entity when the governmental entity has taken or damaged private property for public uses without just compensation, compensation and damages shall be assessed according to the requirements of Title 78, Chapter 34, Eminent Domain.
(2) (a) Notwithstanding Section [63-30d-401] 63G-7-401, a notice of claim for attorneys' fees under Subsection [63-30d-301] 63G-7-301(2)(e) may be filed contemporaneously with a petition for review under Section [63-2-404] 63G-2-404.
(b) The provisions of Subsection [63-30d-403] 63G-7-403(1), relating to the governmental entity's response to a claim, and the provisions of [63-30d-601] 63G-7-601, requiring an undertaking, do not apply to a notice of claim for attorneys' fees filed contemporaneously with a petition for review under Section [63-2-404] 63G-2-404.
(c) Any other claim under this chapter that is related to a claim for attorneys' fees under Subsection [63-30d-301] 63G-7-301(2)(e) may be brought contemporaneously with the claim for attorneys' fees or in a subsequent action.
Section 1514. Section 63G-7-401, which is renumbered from Section 63-30d-401 is renumbered and amended to read:
Part 4. Notice of Claim Against a Governmental Entity or a Government Employee
[63-30d-401]. 63G-7-401. Claim for injury -- Notice -- Contents -- Service -- Legal disability -- Appointment of guardian ad litem.
(1) (a) Except as provided in Subsection (1)(b), a claim arises when the statute of limitations that would apply if the claim were against a private person begins to run.
(b) The statute of limitations does not begin to run until a claimant knew, or with the exercise of reasonable diligence should have known:
(i) that the claimant had a claim against the governmental entity or its employee; and
(ii) the identity of the governmental entity or the name of the employee.
(c) The burden to prove the exercise of reasonable diligence is upon the claimant.
(2) Any person having a claim against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority shall file a written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental.
(3) (a) The notice of claim shall set forth:
(i) a brief statement of the facts;
(ii) the nature of the claim asserted;
(iii) the damages incurred by the claimant so far as they are known; and
(iv) if the claim is being pursued against a governmental employee individually as provided in Subsection [63-30d-202] 63G-7-202(3)(c), the name of the employee.
(b) The notice of claim shall be:
(i) signed by the person making the claim or that person's agent, attorney, parent, or legal guardian; and
(ii) directed and delivered by hand or by mail according to the requirements of Section 68-3-8.5 to the office of:
(A) the city or town clerk, when the claim is against an incorporated city or town;
(B) the county clerk, when the claim is against a county;
(C) the superintendent or business administrator of the board, when the claim is against a school district or board of education;
(D) the presiding officer or secretary/clerk of the board, when the claim is against a local district or special service district;
(E) the attorney general, when the claim is against the State of Utah;
(F) a member of the governing board, the executive director, or executive secretary, when the claim is against any other public board, commission, or body; or
(G) the agent authorized by a governmental entity to receive the notice of claim by the governmental entity under Subsection (5)(e).
(4) (a) If an injury that may reasonably be expected to result in a claim against a governmental entity is sustained by a claimant who is under the age of majority or mentally incompetent, that governmental entity may file a request with the court for the appointment of a guardian ad litem for the potential claimant.
(b) If a guardian ad litem is appointed, the time for filing a claim under Section [63-30d-402] 63G-7-402 begins when the order appointing the guardian is issued.
(5) (a) Each governmental entity subject to suit under this chapter shall file a statement with the Division of Corporations and Commercial Code within the Department of Commerce containing:
(i) the name and address of the governmental entity;
(ii) the office or agent designated to receive a notice of claim; and
(iii) the address at which it is to be directed and delivered.
(b) Each governmental entity shall update its statement as necessary to ensure that the information is accurate.
(c) The Division of Corporations and Commercial Code shall develop a form for governmental entities to complete that provides the information required by Subsection (5)(a).
(d) (i) Newly incorporated municipalities shall file the statement required by Subsection (5)(a) at the time that the statement of incorporation and boundaries is filed with the lieutenant governor under Section 10-1-106.
(ii) Newly incorporated local districts shall file the statement required by Subsection (5)(a) at the time that the written notice is filed with the lieutenant governor under Section 17B-1-215.
(e) A governmental entity may, in its statement, identify an agent authorized by the entity to accept notices of claim on its behalf.
(6) The Division of Corporations and Commercial Code shall:
(a) maintain an index of the statements required by this section arranged both alphabetically by entity and by county of operation; and
(b) make the indices available to the public both electronically and via hard copy.
(7) A governmental entity may not challenge the validity of a notice of claim on the grounds that it was not directed and delivered to the proper office or agent if the error is caused by the governmental entity's failure to file or update the statement required by Subsection (5).
Section 1515. Section 63G-7-402, which is renumbered from Section 63-30d-402 is renumbered and amended to read:
[63-30d-402
]. 63G-7-402. Time for filing notice of claim.A claim against a governmental entity, or against an employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed with the person and according to the requirements of Section [63-30d-401] 63G-7-401 within one year after the claim arises regardless of whether or not the function giving rise to the claim is characterized as governmental.
Section 1516. Section 63G-7-403, which is renumbered from Section 63-30d-403 is renumbered and amended to read:
[63-30d-403
]. 63G-7-403. Notice of claim -- Approval or denial by governmental entity or insurance carrier within 60 days -- Remedies for denial of claim.(1) (a) Within 60 days of the filing of a notice of claim, the governmental entity or its insurance carrier shall inform the claimant in writing that the claim has either been approved or denied.
(b) A claim is considered to be denied if, at the end of the 60-day period, the governmental entity or its insurance carrier has failed to approve or deny the claim.
(2) (a) If the claim is denied, a claimant may institute an action in the district court against the governmental entity or an employee of the entity.
(b) The claimant shall begin the action within one year after denial of the claim or within one year after the denial period specified in this chapter has expired, regardless of whether or not the function giving rise to the claim is characterized as governmental.
Section 1517. Section 63G-7-501, which is renumbered from Section 63-30d-501 is renumbered and amended to read:
Part 5. Legal Actions Under This Chapter - Jurisdiction and Venue
[63-30d-501]. 63G-7-501. Jurisdiction of district courts over actions.
(1) The district courts have exclusive, original jurisdiction over any action brought under this chapter.
(2) An action brought under this chapter may not be tried as a small claims action.
Section 1518. Section 63G-7-502, which is renumbered from Section 63-30d-502 is renumbered and amended to read:
[63-30d-502
]. 63G-7-502. Venue of actions.(1) Actions against the state may be brought in the county in which the claim arose or in Salt Lake County.
(2) (a) Actions against a county may be brought in the county in which the claim arose, or in the defendant county, or, upon leave granted by a district court judge of the defendant county, in any county contiguous to the defendant county.
(b) Leave may be granted ex parte.
(3) Actions against all other political subdivisions, including cities and towns, shall be brought in the county in which the political subdivision is located or in the county in which the claim arose.
Section 1519. Section 63G-7-601, which is renumbered from Section 63-30d-601 is renumbered and amended to read:
Part 6. Legal Actions Under This Chapter - Procedures,
Requirements, Damages, and Limitations on Judgments
[63-30d-601]. 63G-7-601. Actions governed by Utah Rules of Civil Procedure -- Undertaking required.
(1) An action brought under this chapter shall be governed by the Utah Rules of Civil Procedure to the extent that they are consistent with this chapter.
(2) At the time the action is filed, the plaintiff shall file an undertaking in a sum fixed by the court that is:
(a) not less than $300; and
(b) conditioned upon payment by the plaintiff of taxable costs incurred by the governmental entity in the action if the plaintiff fails to prosecute the action or fails to recover judgment.
Section 1520. Section 63G-7-602, which is renumbered from Section 63-30d-602 is renumbered and amended to read:
[63-30d-602
]. 63G-7-602. Compromise and settlement of claims.(1) A political subdivision, after conferring with its legal officer or other legal counsel if it does not have a legal officer, may compromise and settle any action as to the damages or other relief sought.
(2) The risk manager in the Department of Administrative Services may compromise and settle any action against the state for which the Risk Management Fund may be liable:
(a) on the risk manager's own authority, if the amount of the settlement is $25,000 or less;
(b) with the concurrence of the attorney general or the attorney general's representative and the executive director of the Department of Administrative Services if the amount of the settlement is $25,000.01 to $100,000; or
(c) by complying with the procedures and requirements of [Title 63, Chapter 38b] Title 63G, Chapter 10, State Settlement Agreements, if the amount of the settlement is more than $100,000.
Section 1521. Section 63G-7-603, which is renumbered from Section 63-30d-603 is renumbered and amended to read:
[63-30d-603
]. 63G-7-603. Exemplary or punitive damages prohibited -- Governmental entity exempt from execution, attachment, or garnishment.(1) (a) A judgment may not be rendered against a governmental entity for exemplary or punitive damages.
(b) If a governmental entity would be required to pay the judgment under Section [63-30d-902] 63G-7-902 or [63-30d-903] 63G-7-903, the governmental entity shall pay any judgment or portion of any judgment entered against its employee in the employee's personal capacity even if the judgment is for or includes exemplary or punitive damages.
(2) Execution, attachment, or garnishment may not issue against a governmental entity.
Section 1522. Section 63G-7-604, which is renumbered from Section 63-30d-604 is renumbered and amended to read:
[63-30d-604
]. 63G-7-604. Limitation of judgments against governmental entity or employee -- Process for adjustment of limits.(1) (a) Except as provided in Subsection (2) and subject to Subsection (3), if a judgment for damages for personal injury against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $583,900 for one person in any one occurrence, the court shall reduce the judgment to that amount.
(b) A court may not award judgment of more than the amount in effect under Subsection (1)(a) for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental.
(c) Except as provided in Subsection (2) and subject to Subsection (3), if a judgment for property damage against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $233,600 in any one occurrence, the court shall reduce the judgment to that amount, regardless of whether or not the function giving rise to the damage is characterized as governmental.
(d) Subject to Subsection (3), there is a $2,000,000 limit to the aggregate amount of individual awards that may be awarded in relation to a single occurrence.
(2) The damage limits established in this section do not apply to damages awarded as compensation when a governmental entity has taken or damaged private property for public use without just compensation.
(3) The limitations of judgments established in Subsection (1) shall be adjusted according to the methodology set forth in Subsection (4).
(4) (a) Each even-numbered year, the risk manager shall:
(i) calculate the consumer price index as provided in Sections 1(f)(4) and 1(f)(5), Internal Revenue Code;
(ii) calculate the increase or decrease in the limitation of judgment amounts established in this section as a percentage equal to the percentage change in the Consumer Price Index since the previous adjustment made by the risk manager or the Legislature; and
(iii) after making an increase or decrease under Subsection (4)(a)(ii), round up the limitation of judgment amounts established in Subsection (1) to the nearest $100.
(b) Each even-numbered year, the risk manager shall make rules, which become effective no later than July 1, that establish the new limitation of judgment amounts calculated under Subsection (4)(a).
(c) Adjustments made by the risk manager to the limitation of judgment amounts established by this section have prospective effect only from the date the rules establishing the new limitation of judgment take effect and those adjusted limitations of judgment apply only to claims for injuries or losses that occur after the effective date of the rules that establish those new limitations of judgment.
Section 1523. Section 63G-7-701, which is renumbered from Section 63-30d-701 is renumbered and amended to read:
Part 7. Payment Process and Sources for Paying Proved
Claims Against Governmental Entities
[63-30d-701]. 63G-7-701. Payment of claim or judgment against state -- Presentment for payment.
(1) (a) Each claim, as defined by Subsection [63-30d-102] 63G-7-102(1), that is approved by the state or any final judgment obtained against the state shall be presented for payment to:
(i) the state risk manager; or
(ii) the office, agency, institution, or other instrumentality involved, if payment by that instrumentality is otherwise permitted by law.
(b) If payment of the claim is not authorized by law, the judgment or claim shall be presented to the board of examiners for action as provided in Section [63-6-10] 63G-9-301.
(c) If a judgment against the state is reduced by the operation of Section [63-30d-604] 63G-7-604, the claimant may submit the excess claim to the board of examiners.
Section 1524. Section 63G-7-702, which is renumbered from Section 63-30d-702 is renumbered and amended to read:
[63-30d-702
]. 63G-7-702. Payment of claim or judgment against political subdivision -- Procedure by governing body -- Payment options.(1) (a) Each claim approved by a political subdivision or any final judgment obtained against a political subdivision shall be submitted to the governing body of the political subdivision.
(b) The governing body shall pay the claim immediately from the general funds of the political subdivision unless:
(i) the funds are appropriated to some other use or restricted by law or contract for other purposes; or
(ii) the political subdivision opts to pay the claim or award in installments under Subsection (2).
(2) If the subdivision is unable to pay the claim or award during the current fiscal year, it may pay the claim or award in not more than ten ensuing annual installments of equal size or in whatever other installments that are agreeable to the claimant.
Section 1525. Section 63G-7-703, which is renumbered from Section 63-30d-703 is renumbered and amended to read:
[63-30d-703
]. 63G-7-703. Reserve funds for payment of claims or purchase of insurance created by political subdivisions.Any political subdivision may create and maintain a reserve fund or, may jointly with one or more other political subdivisions, make contributions to a joint reserve fund, for the purpose of:
(1) making payment of claims against the cooperating subdivisions when they become payable under this chapter; or
(2) for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.
Section 1526. Section 63G-7-704, which is renumbered from Section 63-30d-704 is renumbered and amended to read:
[63-30d-704
]. 63G-7-704. Tax levy by political subdivisions for payment of claims, judgments, or insurance premiums.(1) Notwithstanding any provision of law to the contrary, a political subdivision may levy an annual property tax sufficient to pay:
(a) any claim, settlement, or judgment;
(b) the costs to defend against any claim, settlement, or judgment; or
(c) for the establishment and maintenance of a reserve fund for the payment of claims, settlements, or judgments that may be reasonably anticipated.
(2) (a) The payments authorized to pay for punitive damages or to pay the premium for authorized insurance is money spent for a public purpose within the meaning of this section and Article XIII, Sec. 5, Utah Constitution, even though, as a result of the levy, the maximum levy as otherwise restricted by law is exceeded.
(b) No levy under this section may exceed .0001 per dollar of taxable value of taxable property.
(c) The revenues derived from this levy may not be used for any purpose other than those specified in this section.
Section 1527. Section 63G-7-801, which is renumbered from Section 63-30d-801 is renumbered and amended to read:
Part 8. Self-Insurance and Purchase of Liability Insurance by Governmental Entities
[63-30d-801]. 63G-7-801. Insurance -- Self-insurance or purchase of liability insurance by governmental entity authorized -- Establishment of trust accounts for self-insurance.
(1) Any governmental entity within the state may self-insure, purchase commercial insurance, or self-insure and purchase excess commercial insurance in excess of the statutory limits of this chapter against:
(a) any risk created or recognized by this chapter; or
(b) any action for which a governmental entity or its employee may be held liable.
(2) (a) In addition to any other reasonable means of self-insurance, a governmental entity may self-insure with respect to specified classes of claims by establishing a trust account.
(b) In creating the trust account, the governmental entity shall ensure that:
(i) the trust account is managed by an independent private trustee; and
(ii) the independent private trustee has authority, with respect to claims covered by the trust, to:
(A) expend both principal and earnings of the trust account solely to pay the costs of investigation, discovery, and other pretrial and litigation expenses including attorneys' fees; and
(B) pay all sums for which the governmental entity may be adjudged liable or for which a compromise settlement may be agreed upon.
(c) Notwithstanding any law to the contrary, the trust agreement between the governmental entity and the trustee may authorize the trustee to:
(i) employ counsel to defend actions against the entity and its employees;
(ii) protect and safeguard the assets of the trust;
(iii) provide for claims investigation and adjustment services;
(iv) employ expert witnesses and consultants; and
(v) provide other services and functions that are necessary and proper to carry out the purposes of the trust.
(d) The monies and interest earned on the trust fund may be invested by following the procedures and requirements of Title 51, Chapter 7, State Money Management Act, and are subject to audit by the state auditor.
Section 1528. Section 63G-7-802, which is renumbered from Section 63-30d-802 is renumbered and amended to read:
[63-30d-802
]. 63G-7-802. Insurance -- Liability insurance -- Government vehicles operated by employees outside scope of employment.(1) A governmental entity that owns vehicles driven by an employee of the governmental entity with the express or implied consent of the entity, but which, at the time liability is incurred as a result of an automobile accident, is not being driven and used within the course and scope of the driver's employment is, subject to Subsection (2), considered to provide the driver with the insurance coverage required by Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle Owners and Operators Act.
(2) The liability coverages considered provided are the minimum limits under Section 31A-22-304.
Section 1529. Section 63G-7-803, which is renumbered from Section 63-30d-803 is renumbered and amended to read:
[63-30d-803
]. 63G-7-803. Liability insurance -- Construction of policy not in compliance with act.(1) If any insurance policy, rider, or endorsement issued after June 30, 2004 that was purchased to insure against any risk that may arise as a result of the application of this chapter contains any condition or provision not in compliance with the requirements of this chapter, that policy, rider, or endorsement is not invalid, but shall be construed and applied according to the conditions and provisions that would have applied had the policy, rider, or endorsement been in full compliance with this chapter, provided that the policy is otherwise valid.
(2) If any insurance policy, rider, or endorsement issued after June 30, 1966 and before July 1, 2004 that was purchased to insure against any risk that may arise as a result of the application of this chapter contains any condition or provision not in compliance with the requirements of the chapter, that policy, rider, or endorsement is not invalid, but shall be construed and applied according to the conditions and provisions that would have applied had the policy, rider, or endorsement been in full compliance with this chapter, provided that the policy is otherwise valid.
Section 1530. Section 63G-7-804, which is renumbered from Section 63-30d-804 is renumbered and amended to read:
[63-30d-804
]. 63G-7-804. Liability insurance -- Methods for purchase or renewal.(1) Except as provided in Subsection (2), a contract or policy of insurance may be purchased or renewed under this chapter only upon public bid to be let to the lowest and best bidder.
(2) The purchase or renewal of insurance by the state shall be conducted in accordance with the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
Section 1531. Section 63G-7-805, which is renumbered from Section 63-30d-805 is renumbered and amended to read:
[63-30d-805
]. 63G-7-805. Liability insurance -- Insurance for employees authorized -- No right to indemnification or contribution from governmental agency.(1) (a) A governmental entity may insure any or all of its employees against liability, in whole or in part, for injury or damage resulting from an act or omission occurring during the performance of an employee's duties, within the scope of employment, or under color of authority, regardless of whether or not that entity is immune from suit for that act or omission.
(b) Any expenditure for that insurance is for a public purpose.
(c) Under any contract or policy of insurance providing coverage on behalf of a governmental entity or employee for any liability defined by this section, regardless of the source of funding for the coverage, the insurer has no right to indemnification or contribution from the governmental entity or its employee for any loss or liability covered by the contract or policy.
(2) Any surety covering a governmental entity or its employee under any faithful performance surety bond has no right to indemnification or contribution from the governmental entity or its employee for any loss covered by that bond based on any act or omission for which the governmental entity would be obligated to defend or indemnify under the provisions of Section [63-30d-902] 63G-7-902.
Section 1532. Section 63G-7-901, which is renumbered from Section 63-30d-901 is renumbered and amended to read:
Part 9. Coverage and Representation of State Entities and Employees
[63-30d-901]. 63G-7-901. Expenses of attorney general, general counsel for state judiciary, and general counsel for the Legislature in representing the state, its branches, members, or employees.
(1) (a) The Office of the Attorney General has primary responsibility to provide legal representation to the judicial, executive, and legislative branches of state government in cases where coverage under the Risk Management Fund created by Section 63A-4-201 applies.
(b) When the attorney general has primary responsibility to provide legal representation to the judicial or legislative branches, the attorney general shall consult with the general counsel for the state judiciary and with the general counsel for the Legislature, to solicit their assistance in defending their respective branch, and in determining strategy and making decisions concerning the disposition of those claims.
(c) Notwithstanding Subsection (1)(b), the decision for settlement of monetary claims in those cases lies with the attorney general and the state risk manager.
(2) (a) If the Judicial Council, after consultation with the general counsel for the state judiciary, determines that the Office of the Attorney General cannot adequately defend the state judiciary, its members, or employees because of a conflict of interest, separation of powers concerns, or other political or legal differences, the Judicial Council may direct its general counsel to separately represent and defend it.
(b) If the general counsel for the state judiciary undertakes independent legal representation of the state judiciary, its members, or employees, the general counsel shall notify the state risk manager and the attorney general in writing before undertaking that representation.
(c) If the state judiciary elects to be represented by its own counsel under this section, the decision for settlement of claims against the state judiciary, its members, or employees, where Risk Management Fund coverage applies, lies with the general counsel for the state judiciary and the state risk manager.
(3) (a) If the Legislative Management Committee, after consultation with the general counsel for the Legislature, determines that the Office of the Attorney General cannot adequately defend the legislative branch, its members, or employees because of a conflict of interest, separation of powers concerns, or other political or legal differences, the Legislative Management Committee may direct its general counsel to separately represent and defend it.
(b) If the general counsel for the Legislature undertakes independent legal representation of the Legislature, its members, or employees, the general counsel shall notify the state risk manager and the attorney general in writing before undertaking that representation.
(c) If the legislative branch elects to be represented by its own counsel under this section, the decision for settlement of claims against the legislative branch, its members, or employees, where Risk Management Fund coverage applies, lies with the general counsel for the Legislature and the state risk manager.
(4) (a) Notwithstanding the provisions of Section 67-5-3 or any other provision of the Utah Code, the attorney general, the general counsel for the state judiciary, and the general counsel for the Legislature may bill the Department of Administrative Services for all costs and legal fees expended by their respective offices, including attorneys' and secretarial salaries, in representing the state or any indemnified employee against any claim for which the Risk Management Fund may be liable and in advising state agencies and employees regarding any of those claims.
(b) The risk manager shall draw funds from the Risk Management Fund for this purpose.
Section 1533. Section 63G-7-902, which is renumbered from Section 63-30d-902 is renumbered and amended to read:
[63-30d-902
]. 63G-7-902. Defending government employee -- Request -- Cooperation -- Payment of judgment.(1) Except as provided in Subsections (2) and (3), a governmental entity shall defend any action brought against its employee arising from an act or omission occurring:
(a) during the performance of the employee's duties;
(b) within the scope of the employee's employment; or
(c) under color of authority.
(2) (a) Before a governmental entity may defend its employee against a claim, the employee shall make a written request to the governmental entity to defend him:
(i) within ten days after service of process upon him; or
(ii) within a longer period that would not prejudice the governmental entity in maintaining a defense on his behalf; or
(iii) within a period that would not conflict with notice requirements imposed on the entity in connection with insurance carried by the entity relating to the risk involved.
(b) If the employee fails to make a request, or fails to reasonably cooperate in the defense, including the making of an offer of judgment under Rule 68, Utah Rules of Civil Procedure, Offers of Judgment, the governmental entity need not defend or continue to defend the employee, nor pay any judgment, compromise, or settlement against the employee in respect to the claim.
(3) The governmental entity may decline to defend, or, subject to any court rule or order, decline to continue to defend, an action against an employee if it determines:
(a) that the act or omission in question did not occur:
(i) during the performance of the employee's duties;
(ii) within the scope of his employment; or
(iii) under color of authority; or
(b) that the injury or damage on which the claim was based resulted from conditions set forth in Subsection [63-30d-202] 63G-7-202(3)(c).
(4) (a) Within ten days of receiving a written request to defend an employee, the governmental entity shall inform the employee whether or not it shall provide a defense, and, if it refuses to provide a defense, the basis for its refusal.
(b) A refusal by the entity to provide a defense is not admissible for any purpose in the action in which the employee is a defendant.
(5) Except as provided in Subsection (6), if a governmental entity conducts the defense of an employee, the governmental entity shall pay any judgment based upon the claim.
(6) A governmental entity may conduct the defense of an employee under a reservation of rights under which the governmental entity reserves the right not to pay a judgment if any of the conditions set forth in Subsection (3) are established.
(7) (a) Nothing in this section or Section [63-30d-903] 63G-7-903 affects the obligation of a governmental entity to provide insurance coverage according to the requirements of Subsection 41-12a-301(3) and Section [63-30d-802] 63G-7-802.
(b) When a governmental entity declines to defend, or declines to continue to defend, an action against its employee under any of the conditions set forth in Subsection (3), it shall still provide coverage up to the amount specified in Section 31A-22-304.
Section 1534. Section 63G-7-903, which is renumbered from Section 63-30d-903 is renumbered and amended to read:
[63-30d-903
]. 63G-7-903. Recovery of judgment paid and defense costs by government employee.(1) Subject to Subsection (2), if an employee pays a judgment entered against him, or any portion of it, that the governmental entity is required to pay under Section [63-30d-902] 63G-7-902, the employee may recover from the governmental entity the amount of the payment and the reasonable costs incurred in the employee's defense.
(2) (a) If a governmental entity does not conduct the defense of an employee against a claim, or conducts the defense under a reservation of rights as provided in Subsection [63-30d-902] 63G-7-902(6), the employee may recover from the governmental entity under Subsection (1) if the employee can prove that none of the conditions set forth in Subsection [63-30d-202] 63G-7-202(3)(c) applied.
(b) The employee has the burden of proof that none of the conditions set forth in Subsection [63-30d-202] 63G-7-202(3)(c) applied.
Section 1535. Section 63G-7-904, which is renumbered from Section 63-30d-904 is renumbered and amended to read:
[63-30d-904
]. 63G-7-904. Indemnification of governmental entity by employee not required.If a governmental entity pays all or part of a judgment, compromise, or settlement based on a claim against the governmental entity or an employee, the employee is not required to indemnify the governmental entity for the payment.
Section 1536. Section 63G-8-101 is enacted to read:
CHAPTER 8. IMMUNITY FOR PERSONS PERFORMING
VOLUNTARY SERVICES ACT
Part 1. General Provisions
63G-8-101. Title.
This chapter is known as the "Immunity for Persons Performing Voluntary Services Act."
Section 1537. Section 63G-8-102, which is renumbered from Section 63-30b-1 is renumbered and amended to read:
[63-30b-1
]. 63G-8-102. Definitions.As used in this act:
(1) "Public entity" means the state or any political subdivision of it, or any office, department, division, board, agency, commission, council, authority, institution, hospital, school, college, university, or other instrumentality of the state or any political subdivision.
(2) "Compensation" means payment for services in any form whatsoever, whether per diem or otherwise, except where the payment is solely for the purpose of paying subsistence, travel, or other expenses incurred by the person performing those services.
Section 1538. Section 63G-8-201, which is renumbered from Section 63-30b-2 is renumbered and amended to read:
Part 2. Immunity for Voluntary Services
[63-30b-2]. 63G-8-201. Voluntary services -- Immunity from liability -- Exceptions.
Any person performing services on a voluntary basis, without compensation, under the general supervision of, and on behalf of any public entity, shall be immune from liability with respect to any decisions or actions, other than in connection with the operation of a motor vehicle, taken during the course of those services, unless it is established that such decisions or actions were grossly negligent, not made in good faith, or were made maliciously.
Section 1539. Section 63G-8-202, which is renumbered from Section 63-30b-3 is renumbered and amended to read:
[63-30b-3
]. 63G-8-202. Action under Governmental Immunity Act of Utah permitted.Nothing in this chapter shall preclude legal action against a public entity for any injury occurring as a result of the decisions or actions taken by a person performing services on a voluntary basis for that entity, where such action would otherwise be permitted under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Section 1540. Section 63G-8-301, which is renumbered from Section 63-30b-4 is renumbered and amended to read:
Part 3. Application
[63-30b-4]. 63G-8-301. Applicability of act.
This act shall apply to any actions or decisions taken subsequent to the effective date of this act.
Section 1541. Section 63G-9-101 is enacted to read:
CHAPTER 9. BOARD OF EXAMINERS ACT
Part 1. General Provisions
63G-9-101. Title.
This chapter is known as the "Board of Examiners Act."
Section 1542. Section 63G-9-201, which is renumbered from Section 63-6-1 is renumbered and amended to read:
Part 2. Board of Examiners
[63-6-1]. 63G-9-201. Members -- Functions.
(1) As used in this chapter:
(a) "Political subdivision" means any county, city, town, school district, community development and renewal agency, special improvement or taxing district, local district, special service district, an entity created by an interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation Act, or other governmental subdivision or public corporation.
(b) "State" means the state of Utah, and includes each office, department, division, agency, authority, commission, board, institution, college, university, Children's Justice Center, or other instrumentality of the state.
(2) The governor, the state auditor, and the attorney general shall constitute a Board of Examiners, with power to examine all claims against the state or a political subdivision, for the payment of which funds appropriated by the Legislature or derived from any other source are not available.
(3) No claim against the state or a political subdivision, for the payment of which specifically designated funds are required to be appropriated by the Legislature shall be passed upon by the Legislature without having been considered and acted upon by the Board of Examiners.
(4) The governor shall be the president, and the state auditor shall be the secretary of the board, and in the absence of either an officer pro tempore may be elected from among the members of the board.
Section 1543. Section 63G-9-202, which is renumbered from Section 63-6-1.5 is renumbered and amended to read:
[63-6-1.5
]. 63G-9-202. Procedures -- Adjudicative proceedings.The Board of Examiners shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 1544. Section 63G-9-203, which is renumbered from Section 63-6-2 is renumbered and amended to read:
[63-6-2
]. 63G-9-203. Meetings.The meetings of the board shall be held upon the call of the president or any two members.
Section 1545. Section 63G-9-204, which is renumbered from Section 63-6-3 is renumbered and amended to read:
[63-6-3
]. 63G-9-204. Record of proceedings.The board must keep a record of all its proceedings, and any member may cause his dissent to the action of a majority upon any matter to be entered upon such record. An abstract of all claims must be entered upon the minutes of the board before the same are acted upon.
Section 1546. Section 63G-9-205, which is renumbered from Section 63-6-4 is renumbered and amended to read:
[63-6-4
]. 63G-9-205. Rules and regulations.The board may, in writing, establish rules and regulations not inconsistent with law for its government.
Section 1547. Section 63G-9-206, which is renumbered from Section 63-6-5 is renumbered and amended to read:
[63-6-5
]. 63G-9-206. Witnesses -- Subpoena -- Examination -- Fees.The president of the board may issue subpoenas and compel the attendance of witnesses and the production of books and papers before the board or any member thereof; and any member of the board may administer oaths and may examine witnesses. Whenever a witness is subpoenaed before the board to testify against any claim pending before it, the board may allow a reasonable fee to such witness for attendance, which fee must not exceed the fees allowed by law to witnesses in civil cases, and must be paid out of the appropriation for the contingent expenses of the board; provided, that in no instance shall a fee be allowed to a witness who has appeared in behalf of a claimant.
Section 1548. Section 63G-9-207, which is renumbered from Section 63-6-6 is renumbered and amended to read:
[63-6-6
]. 63G-9-207. Depositions.Each member of the board may take depositions to be used before it.
Section 1549. Section 63G-9-301, which is renumbered from Section 63-6-10 is renumbered and amended to read:
Part 3. Review of Claims
[63-6-10]. 63G-9-301. Audit and approval of claims -- Overexpenditure by agencies.
(1) (a) The Board of Examiners shall audit any claim presented to it, if the settlement of the claim is required by law.
(b) If the claim is approved, the board shall transmit it to the Legislature with a statement of the reasons for the approval.
(2) When an agency's line item appropriation has been overexpended and a written report is submitted to the board as required by Section [63-38-10] 63J-1-405, the board shall review the report and either:
(a) recommend and submit to the Legislature any supplemental appropriations or corrective legislation that may be needed; or
(b) recommend other internal procedures or policies that will make an overexpenditure in the future unlikely.
Section 1550. Section 63G-9-302, which is renumbered from Section 63-6-11 is renumbered and amended to read:
[63-6-11
]. 63G-9-302. Form for presentment of claim against the state or political subdivision.Any person having a claim against the state or a political subdivision, for which funds have not been provided for the payment thereof, or the settlement of which is not otherwise provided for by law, must present the same to the Board of Examiners, accompanied by a statement showing the facts constituting the claim.
Section 1551. Section 63G-9-303, which is renumbered from Section 63-6-12 is renumbered and amended to read:
[63-6-12
]. 63G-9-303. Meeting to examine claims -- Notice of meeting.At least 60 days preceding the meeting of each Legislature the board must hold a session for the purpose of examining the claims referred to in Section [63-6-11] 63G-9-302, and may adjourn from time to time until the work is completed. The board must cause notice of such meeting or meetings to be published in some newspaper at the seat of government and such other newspapers as may be determined by the board for such time as the board may prescribe.
Section 1552. Section 63G-9-304, which is renumbered from Section 63-6-13 is renumbered and amended to read:
[63-6-13
]. 63G-9-304. Adjustment of claims -- Recommendations to Legislature.(1) The board must, at the time designated, proceed to examine and adjust all claims referred to in Section [63-6-11] 63G-9-302, and may hear evidence in support of or against them, and shall report to the Legislature the facts and recommendations concerning them as it may think proper.
(2) In making its recommendations, the board may state and use any official or personal knowledge which any member of the board may have touching such claims.
(3) The board shall not pass upon or send to the Legislature any claim for which the state or a political subdivision would not otherwise be liable were it not for its sovereign immunity.
(4) Notwithstanding Subsection (3), claims wherein the state or a political subdivision would be liable, were it not for its sovereign immunity, whether recommended by the board for approval or disapproval, shall be reported by the board to the Legislature with appropriate findings and recommendations as above provided.
Section 1553. Section 63G-9-305, which is renumbered from Section 63-6-14 is renumbered and amended to read:
[63-6-14
]. 63G-9-305. Publication of abstract of claims allowed and rejected.The board must make up its report and recommendations at least thirty days before the meeting of the Legislature; and a brief abstract of the report, showing the claims rejected, and those allowed and the amounts thereof, must be published in a newspaper published at the seat of government before the meeting of the Legislature for such time as the board may prescribe.
Section 1554. Section 63G-9-306, which is renumbered from Section 63-6-16 is renumbered and amended to read:
[63-6-16
]. 63G-9-306. Reconsideration of rejected claims.The board shall not entertain for a third time a demand against the state or a political subdivision once rejected by it or by the Legislature, unless the facts or reasons are presented to the board as in actions between private parties would furnish sufficient ground for granting a new trial.
Section 1555. Section 63G-9-401, which is renumbered from Section 63-6-17 is renumbered and amended to read:
Part 4. Appeal of Claim Reviews
[63-6-17]. 63G-9-401. Appeal to Legislature.
Any person interested who is aggrieved by the disapproval of a claim by the board may appeal from its decision to the Legislature by filing with the board a notice thereof, and upon the receipt of such notice the board must transmit the demand and all the papers accompanying the same, with a statement of the evidence taken before it, to the Legislature.
Section 1556. Section 63G-10-101 is enacted to read:
CHAPTER 10. STATE SETTLEMENT AGREEMENTS ACT
Part 1. General Provisions
63G-10-101. Title.
This chapter is known as the "State Settlement Agreements Act."
Section 1557. Section 63G-10-102, which is renumbered from Section 63-38b-101 is renumbered and amended to read:
[63-38b-101
]. 63G-10-102. Definitions.As used in this chapter:
(1) (a) "Action settlement agreement" includes a stipulation, consent decree, settlement agreement, or any other legally binding document or representation that resolves a threatened or pending lawsuit between the state and another party by requiring the state to take legally binding action.
(b) "Action settlement agreement" includes stipulations, consent decrees, settlement agreements, and other legally binding documents or representations resolving a dispute between the state and another party when the state is required to pay money and required to take legally binding action.
(c) "Action settlement agreement" does not include:
(i) the internal process established by the Department of Transportation to resolve construction contract claims;
(ii) any resolution of an employment dispute or claim made by an employee of the state of Utah against the state as employer;
(iii) adjudicative orders issued by the State Tax Commission, the Public Service Commission, the Labor Commission, or the Department of Workforce Services; or
(iv) the settlement of disputes arising from audits, defaults, or breaches of permits, contracts of sale, easements, or leases by the School and Institutional Trust Lands Administration.
(2) (a) "Agency" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state.
(b) "Agency" includes the legislative branch, the judicial branch, the attorney general's office, the State Office of Education, the Board of Regents, the institutional councils of each higher education institution, and each higher education institution.
(3) (a) "Financial settlement agreement" includes a stipulation, consent decree, settlement agreement, and any other legally binding document or representation that resolves a dispute between the state and another party exclusively by requiring the payment of money from one party to the other.
(b) "Financial settlement agreement" does not include:
(i) agreements made under the internal process established by the Department of Transportation to resolve construction contract claims;
(ii) adjudicative orders issued by the State Tax Commission, Public Service Commission, Labor Commission, or the Department of Workforce Services;
(iii) the settlement of disputes arising from audits, defaults, or breaches of permits, contracts of sale, easements, or leases by the School and Institutional Trust Lands Administration; or
(iv) agreements made under the internal processes established by the Division of Facilities Construction and Management or by law to resolve construction contract claims made against the state by contractors or subcontractors.
(4) "Government entities" means the state and its political subdivisions.
Section 1558. Section 63G-10-103, which is renumbered from Section 63-38b-102 is renumbered and amended to read:
[63-38b-102
]. 63G-10-103. Notice of voidableness of settlement agreements.Each financial settlement agreement that might cost government entities more than $100,000 that is executed by an agency in violation of this chapter, and each action settlement agreement that is executed by an agency in violation of this chapter, is voidable by the governor or the Legislature as provided in this chapter.
Section 1559. Section 63G-10-201, which is renumbered from Section 63-38b-201 is renumbered and amended to read:
Part 2. Financial Settlement Agreements
[63-38b-201]. 63G-10-201. Governor to approve financial settlement agreements.
(1) Before legally binding the state by executing a financial settlement agreement that might cost government entities more than $100,000 to implement, an agency shall submit the proposed financial settlement agreement to the governor for his approval or rejection.
(2) The governor shall approve or reject each financial settlement agreement.
(3) (a) If the governor approves the financial settlement agreement, the agency may execute the agreement.
(b) If the governor rejects the financial settlement agreement, the agency may not execute the agreement.
(4) If an agency executes a financial settlement agreement without obtaining the governor's approval under this section, the governor may issue an executive order declaring the settlement agreement void.
Section 1560. Section 63G-10-202, which is renumbered from Section 63-38b-202 is renumbered and amended to read:
[63-38b-202
]. 63G-10-202. Legislative review and approval of financial settlement agreements.(1) (a) Before legally binding the state by executing a financial settlement agreement that might cost government entities more than $500,000 to implement, an agency shall:
(i) submit the proposed financial settlement agreement to the governor for his approval or rejection as required by Section [63-38b-201] 63G-10-201; and
(ii) if the governor approves the financial settlement agreement, submit the financial settlement agreement to the Legislative Management Committee for its review and recommendations.
(b) The Legislative Management Committee shall review the financial settlement agreement and may:
(i) recommend that the agency execute the financial settlement agreement;
(ii) recommend that the agency reject the financial settlement agreement; or
(iii) recommend to the governor that he call a special session of the Legislature to review and approve or reject the financial settlement agreement.
(2) (a) Before legally binding the state by executing a financial settlement agreement that might cost government entities more than $1,000,000 to implement, an agency shall:
(i) submit the proposed financial settlement agreement to the governor for his approval or rejection as required by Section [63-38b-201] 63G-10-201; and
(ii) if the governor approves the financial settlement agreement, submit the financial settlement agreement to the Legislature for its approval in an annual general session or a special session.
(b) (i) If the Legislature approves the financial settlement agreement, the agency may execute the agreement.
(ii) If the Legislature rejects the financial settlement agreement, the agency may not execute the agreement.
(c) If an agency executes a financial settlement agreement without obtaining the Legislature's approval under this Subsection (2):
(i) the governor may issue an executive order declaring the settlement agreement void; or
(ii) the Legislature may pass a joint resolution declaring the settlement agreement void.
Section 1561. Section 63G-10-301, which is renumbered from Section 63-38b-301 is renumbered and amended to read:
Part 3. Action Settlement Agreements
[63-38b-301]. 63G-10-301. Cost evaluation of action settlement agreements.
(1) Before legally binding the state to an action settlement agreement that might cost the state a total of $100,000 or more to implement, an agency shall estimate the cost of implementing the action settlement agreement and submit that cost estimate to the governor and the Legislative Management Committee.
(2) The Legislative Management Committee may:
(a) direct its staff to make an independent cost estimate of the cost of implementing the action settlement agreement; and
(b) affirmatively adopt a cost estimate as the benchmark for determining which authorizations established by this part are necessary.
Section 1562. Section 63G-10-302, which is renumbered from Section 63-38b-302 is renumbered and amended to read:
[63-38b-302
]. 63G-10-302. Governor to approve action settlement agreements.(1) Before legally binding the state by executing an action settlement agreement that might cost government entities more than $100,000 to implement, an agency shall submit the proposed settlement agreement to the governor for his approval or rejection.
(2) The governor shall approve or reject each action settlement agreement.
(3) (a) If the governor approves the action settlement agreement, the agency may execute the agreement.
(b) If the governor rejects the action settlement agreement, the agency may not execute the agreement.
(4) If an agency executes an action settlement agreement without obtaining the governor's approval under this section, the governor may issue an executive order declaring the settlement agreement void.
Section 1563. Section 63G-10-303, which is renumbered from Section 63-38b-303 is renumbered and amended to read:
[63-38b-303
]. 63G-10-303. Legislative review and approval of action settlement agreements.(1) (a) Before legally binding the state by executing an action settlement agreement that might cost government entities more than $500,000 to implement, an agency shall:
(i) submit the proposed action settlement agreement to the governor for his approval or rejection as required by Section [63-38b-302] 63G-10-302; and
(ii) if the governor approves the action settlement agreement, submit the action settlement agreement to the Legislative Management Committee for its review and recommendations.
(b) The Legislative Management Committee shall review the action settlement agreement and may:
(i) recommend that the agency execute the settlement agreement;
(ii) recommend that the agency reject the settlement agreement; or
(iii) recommend to the governor that he call a special session of the Legislature to review and approve or reject the settlement agreement.
(2) (a) Before legally binding the state by executing an action settlement agreement that might cost government entities more than $1,000,000 to implement, an agency shall:
(i) submit the proposed action settlement agreement to the governor for his approval or rejection as required by Section [63-38b-302] 63G-10-302; and
(ii) if the governor approves the action settlement agreement, submit the action settlement agreement to the Legislature for its approval in an annual general session or a special session.
(b) (i) If the Legislature approves the action settlement agreement, the agency may execute the agreement.
(ii) If the Legislature rejects the action settlement agreement, the agency may not execute the agreement.
(c) If an agency executes an action settlement agreement without obtaining the Legislature's approval under this Subsection (2):
(i) the governor may issue an executive order declaring the action settlement agreement void; or
(ii) the Legislature may pass a joint resolution declaring the action settlement agreement void.
Section 1564. Section 63G-10-401, which is renumbered from Section 63-38b-401 is renumbered and amended to read:
Part 4. Condemnation and Inverse Condemnation Settlement Agreements
[63-38b-401]. 63G-10-401. Condemnation, inverse condemnation settlements involving the Department of Transportation.
(1) Notwithstanding the provisions of this chapter, the Department of Transportation need not obtain the approval of the governor or the Legislature for financial or action settlement agreements that resolve condemnation or inverse condemnation cases.
(2) Financial settlement agreements involving condemnation or inverse condemnation cases for $1,000,000 to $2,000,000 over the Department of Transportation's original appraisal shall be presented to the Transportation Commission for approval or rejection.
(3) (a) Financial settlement agreements involving condemnation or inverse condemnation cases for more than $2,000,000 over the Department of Transportation's original appraisal and all action settlement agreements that resolve condemnation or inverse condemnation cases shall be presented:
(i) to the Transportation Commission for approval or rejection; and
(ii) if the financial or action settlement agreement is approved by the Transportation Commission, to the Legislative Management Committee.
(b) The Legislative Management Committee may recommend approval or rejection of the financial or action settlement agreement.
(4) (a) The Department of Transportation may not enter into a financial settlement agreement that resolves a condemnation or inverse condemnation case and requires payment of $1,000,000 to $2,000,000 over the Department of Transportation's original appraisal until the Transportation Commission has approved the agreement.
(b) The Department of Transportation may not enter into a financial settlement agreement that resolves a condemnation or inverse condemnation case and requires payment of more than $2,000,000 over the Department of Transportation's original appraisal or enter into an action settlement agreement that resolves a condemnation or inverse condemnation case until:
(i) the Transportation Commission has approved the agreement; and
(ii) the Legislative Management Committee has reviewed the agreement.
Section 1565. Section 63I-1-101, which is renumbered from Section 63-55-101 is renumbered and amended to read:
TITLE 63I. OVERSIGHT
CHAPTER 1. LEGISLATIVE OVERSIGHT AND SUNSET ACT
Part 1. General Provisions
[63-55-101]. 63I-1-101. Title.
(1) This title is known as "Oversight."
(2) This chapter is known as the "Legislative Oversight and Sunset Act."
Section 1566. Section 63I-1-102, which is renumbered from Section 63-55-102 is renumbered and amended to read:
[63-55-102
]. 63I-1-102. Agency defined -- Periodic termination of statutes and agencies -- Legislative review.(1) As used in this chapter, "agency" means any state authority, board, commission, department, division, office, or other agency, and the statute that established it.
(2) The Legislature finds that the state should not regulate any area unless the regulation is necessary to protect the health, safety, and welfare of the public.
(3) In order to make state government more productive and responsive to the people, it is necessary to place many of the statutes and agencies of state government under Part 2 of this chapter on a reauthorization schedule. Any statute or agency scheduled for termination under this chapter is terminated unless the Legislature through affirmative act reauthorizes its existence. The continued existence of a statute or agency subject to this chapter may not be reauthorized for a period of more than ten years.
(4) It is the purpose of this chapter to terminate any statute or agency that is not meeting a clear public purpose, and to improve the ability of state government to meet and fulfill legitimate public purposes.
Section 1567. Section 63I-1-103, which is renumbered from Section 63-55-103 is renumbered and amended to read:
[63-55-103
]. 63I-1-103. Guidelines for conduct of review.(1) (a) Any statute or agency scheduled for termination may be reviewed by an interim committee at the direction of:
(i) Legislative Management Committee;
(ii) the chairs of an interim committee; or
(iii) an interim committee as approved by motion and majority vote of its membership.
(b) The review shall begin not later than one year before scheduled termination and end before January 1 of the year in which termination is scheduled.
(2) In determining whether to reauthorize the statute or agency, the agency overseeing the statute or agency scheduled for termination shall clearly identify for the interim committee the public purpose and interest for which each statute or agency was originally created and clearly identify whether that public purpose and interest is still relevant.
(3) The interim committee shall then consider:
(a) the extent to which the statute or agency has operated in the public interest and any areas in which the statute or agency needs to improve its ability to operate in the public interest;
(b) the extent to which existing statutes interfere with or assist the legitimate functions of the statute or agency, and any other circumstances including budgetary, resource, and personnel matters that have a bearing on the capacity of the statute or agency to serve the public interest;
(c) the extent to which the public has been encouraged to participate in the adoption of the rules established in connection with the statute or agency;
(d) the extent to which the statute's provisions or agency's programs and services are duplicative of those offered by other statutes or state agencies;
(e) the extent to which the objectives of the statute or agency have been accomplished and their public benefit;
(f) the adverse effect on the public of termination of the statute or agency; and
(g) any other matter relevant to the review.
(4) It is the responsibility of any agency scheduled for termination or any agency which has oversight responsibilities for a statute scheduled for termination to seek its reauthorization with the Legislature.
Section 1568. Section 63I-1-104, which is renumbered from Section 63-55-104 is renumbered and amended to read:
[63-55-104
]. 63I-1-104. Terminated authority -- Winding up of affairs.Any agency terminated under this chapter may continue in existence, if necessary to wind up its affairs, until July 1 of the year next succeeding the year of termination.
Section 1569. Section 63I-1-105, which is renumbered from Section 63-55-105 is renumbered and amended to read:
[63-55-105
]. 63I-1-105. Reviewing committee -- Report of recommendations.The reviewing committee shall submit a report of its recommendations, including proposed legislation and recommendations concerning the statute or agency, to the Legislature before January 1 of the year in which the agency is scheduled for termination.
Section 1570. Section 63I-1-106, which is renumbered from Section 63-55-106 is renumbered and amended to read:
[63-55-106
]. 63I-1-106. Legislative reauthorization of statute or agency.If the Legislature determines that the public interest requires the continued existence of the statute or agency, it shall reauthorize the existence of the statute or agency in this chapter.
Section 1571. Section 63I-1-209, which is renumbered from Section 63-55-209 is renumbered and amended to read:
[63-55-209
]. 63I-1-209. Repeal dates, Title 9.(1) Title 9, Chapter 1, Part 8, Commission on National and Community Service Act, is repealed July 1, 2014.
(2) Title 9, Chapter 3, Part 3, Heber Valley Historic Railroad Authority, is repealed July 1, 2009.
(3) Title 9, Chapter 4, Part 9, Utah Housing Corporation Act, is repealed July 1, 2016.
Section 1572. Section 63I-1-210, which is renumbered from Section 63-55-210 is renumbered and amended to read:
[63-55-210
]. 63I-1-210. Repeal dates, Title 10.Section 1573. Section 63I-1-213, which is renumbered from Section 63-55-213 is renumbered and amended to read:
[63-55-213
]. 63I-1-213. Repeal dates, Title 13.Title 13, Chapter 16, Motor Fuel Marketing Act, is repealed July 1, 2012.
Section 1574. Section 63I-1-219, which is renumbered from Section 63-55-219 is renumbered and amended to read:
[63-55-219
]. 63I-1-219. Repeal dates, Title 19.(1) Title 19, Chapter 2, Air Conservation Act, is repealed July 1, 2009.
(2) Title 19, Chapter 3, Radiation Control Act, is repealed July 1, 2012.
(3) Title 19, Chapter 4, Safe Drinking Water Act, is repealed July 1, 2009.
(4) Title 19, Chapter 5, Water Quality Act, is repealed July 1, 2009.
(5) Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act, is repealed July 1, 2009.
(6) Title 19, Chapter 6, Part 3, Hazardous Substances Mitigation Act, is repealed July 1, 2010.
(7) Title 19, Chapter 6, Part 4, Underground Storage Tank Act, is repealed July 1, 2008.
(8) Title 19, Chapter 6, Part 6, Lead Acid Battery Disposal, is repealed July 1, 2016.
(9) Title 19, Chapter 6, Part 7, Used Oil Management Act, is repealed July 1, 2009.
(10) Title 19, Chapter 6, Part 8, Waste Tire Recycling Act, is repealed July 1, 2010.
(11) Title 19, Chapter 6, Part 10, Mercury Switch Removal Act, is repealed July 1, 2012.
Section 1575. Section 63I-1-220, which is renumbered from Section 63-55-220 is renumbered and amended to read:
[63-55-220
]. 63I-1-220. Repeal dates, Title 20A.Section 1576. Section 63I-1-223, which is renumbered from Section 63-55-223 is renumbered and amended to read:
[63-55-223
]. 63I-1-223. Repeal dates, Title 23.Section 1577. Section 63I-1-226, which is renumbered from Section 63-55-226 is renumbered and amended to read:
[63-55-226
]. 63I-1-226. Repeal dates, Title 26.(1) Title 26, Chapter 9f, Utah Digital Health Service Commission Act, is repealed July 1, 2015.
(2) Title 26, Chapter 23b, Detection of Public Health Emergencies Act, is repealed July 1, 2009.
(3) Title 26, Chapter 33a, Utah Health Data Authority Act, is repealed July 1, 2014.
(4) Section 26-21-23, Licensing of non-Medicaid nursing care facility beds, is repealed July 1, 2009.
Section 1578. Section 63I-1-230, which is renumbered from Section 63-55-230 is renumbered and amended to read:
[63-55-230
]. 63I-1-230. Repeal dates, Title 30.Section 1579. Section 63I-1-231, which is renumbered from Section 63-55-231 is renumbered and amended to read:
[63-55-231
]. 63I-1-231. Repeal dates, Title 31A.(1) Section 31A-2-208.5, Comparison tables, is repealed July 1, 2010.
(2) Section 31A-2-217, Coordination with other states, is repealed July 1, 2013.
(3) Section 31A-22-315, Motor vehicle insurance reporting -- Penalty, is repealed July 1, 2010.
(4) Section 31A-22-625, Catastrophic coverage of mental health conditions, is repealed July 1, 2011.
Section 1580. Section 63I-1-232, which is renumbered from Section 63-55-232 is renumbered and amended to read:
[63-55-232
]. 63I-1-232. Repeal dates, Title 32A.Section 1581. Section 63I-1-234, which is renumbered from Section 63-55-234 is renumbered and amended to read:
[63-55-234
]. 63I-1-234. Repeal dates, Title 34A.(1) Section 34A-2-202.5 is repealed December 31, 2010.
(2) Title 34A, Chapter 8, Utah Injured Worker Reemployment Act, is repealed July 1, 2009.
Section 1582. Section 63I-1-235, which is renumbered from Section 63-55-235 is renumbered and amended to read:
[63-55-235
]. 63I-1-235. Repeal dates, Title 35A.(1) Title 35A, Utah Workforce Services Code, is repealed July 1, 2015.
(2) Section 35A-3-114, the Displaced Homemaker Program, together with the provision for funding that program contained in Subsection 17-16-21(2)(b), is repealed July 1, 2012.
Section 1583. Section 63I-1-236, which is renumbered from Section 63-55-236 is renumbered and amended to read:
[63-55-236
]. 63I-1-236. Repeal dates, Title 36.Sections 36-26-101 through 36-26-104 are repealed December 31, 2017.
Section 1584. Section 63I-1-238, which is renumbered from Section 63-55-238 is renumbered and amended to read:
[63-55-238
]. 63I-1-238. Repeal dates, Title 38.Section 38-1-27 and Sections 38-1-30 through 38-1-37 are repealed July 1, 2008.
Section 1585. Section 63I-1-241, which is renumbered from Section 63-55-241 is renumbered and amended to read:
[63-55-241
]. 63I-1-241. Repeal dates, Title 41.The following provisions of Title 41 are repealed on the following dates:
(1) Title 41, Chapter 12a, Part 8, Uninsured Motorist Identification Database Program, is repealed July 1, 2010.
(2) The HOV lane exception in Subsection 41-6a-702(5) is repealed December 31, 2010.
Section 1586. Section 63I-1-253, which is renumbered from Section 63-55-253 is renumbered and amended to read:
[63-55-253
]. 63I-1-253. Repeal dates, Titles 53, 53A, and 53B.The following provisions of Title 53A are repealed on the following dates:
(1) Title 53A, Chapter 1a, Part 6, Public Education Job Enhancement Program is repealed July 1, 2010.
(2) Title 53A, Chapter 1a, Part 9, Voluntary Extended-day Kindergarten Program, is repealed July 1, 2011.
(3) The State Instructional Materials Commission, created in Section 53A-14-101, is repealed July 1, 2011.
(4) Title 53A, Chapter 20a, Public Education Revenue Bond Act, is repealed July 1, 2007.
(5) Section 53-3-232, Conditional licenses, is repealed July 1, 2015.
Section 1587. Section 63I-1-254, which is renumbered from Section 63-55-254 is renumbered and amended to read:
[63-55-254
]. 63I-1-254. Repeal dates, Title 54.Section 1588. Section 63I-1-258, which is renumbered from Section 63-55-258 is renumbered and amended to read:
[63-55-258
]. 63I-1-258. Repeal dates, Title 58.(1) Title 58, Chapter 9, Funeral Services Licensing Act, is repealed July 1, 2008.
(2) Title 58, Chapter 13, Health Care Providers Immunity from Liability Act, is repealed July 1, 2016.
(3) Title 58, Chapter 15, Health Facility Administrator Act, is repealed July 1, 2015.
(4) Title 58, Chapter 20a, Environmental Health Scientist Act, is repealed July 1, 2013.
(5) Title 58, Chapter 40, Recreational Therapy Practice Act, is repealed July 1, 2013.
(6) Title 58, Chapter 41, Speech-language Pathology and Audiology Licensing Act, is repealed July 1, 2009.
(7) Title 58, Chapter 42a, Occupational Therapy Practice Act, is repealed July 1, 2015.
(8) Title 58, Chapter 46a, Hearing Instrument Specialist Licensing Act, is repealed July 1, 2013.
(9) Title 58, Chapter 47b, Massage Therapy Practice Act, is repealed July 1, 2014.
(10) Title 58, Chapter 49, Dietitian Certification Act, is repealed July 1, 2015.
(11) Title 58, Chapter 72, Acupuncture Licensing Act, is repealed July 1, 2017.
Section 1589. Section 63I-1-259, which is renumbered from Section 63-55-259 is renumbered and amended to read:
[63-55-259
]. 63I-1-259. Repeal dates, Title 59.Section 59-9-102.5 is repealed December 31, 2010.
Section 1590. Section 63I-1-261, which is renumbered from Section 63-55-261 is renumbered and amended to read:
[63-55-261
]. 63I-1-261. Repeal dates, Title 61.Title 61, Chapter 1, Utah Uniform Securities Act, is repealed July 1, 2009.
Section 1591. Section 63I-1-262, which is renumbered from Section 63-55-262 is renumbered and amended to read:
[63-55-262
]. 63I-1-262. Repeal dates, Title 62A.(1) Section 62A-5-103.1, Pilot program for provision of supported employment services, is repealed July 1, 2008.
(2) Section 62A-5-103.2, Pilot program for family preservation services, is repealed July 1, 2009.
Section 1592. Section 63I-1-263, which is renumbered from Section 63-55-263 is renumbered and amended to read:
[63-55-263
]. 63I-1-263. Repeal dates, Titles 63 to 63E.(1) [Title 63, Chapter 25a, Part 3,] Title 63M, Chapter 7, Part 4, Sentencing Commission, is repealed January 1, 2012.
(2) The Crime Victims' Reparations Board, created in Section [63-25a-404] 63M-7-504, is repealed July 1, 2017.
(3) The Resource Development Coordinating Committee, created in Section [63-38d-501] 63J-4-501, is repealed July 1, 2015.
(4) [Title 63, Chapter 38f] Title 63M, Chapter 1, Part 4, Enterprise Zone Act, is repealed July 1, 2008.
(5) (a) [Title 63, Chapter 38f] Title 63M, Chapter 1, Part 11, Recycling Market Development Zone Act, is repealed July 1, 2010.
(b) Sections 59-7-610 and 59-10-1007 regarding tax credits for certain persons in recycling market development zones, are repealed for taxable years beginning on or after January 1, 2011.
(c) Notwithstanding Subsection (5)(b), a person may not claim a tax credit under Section 59-7-610 or 59-10-1007:
(i) for the purchase price of machinery or equipment described in Section 59-7-610 or 59-10-1007, if the machinery or equipment is purchased on or after July 1, 2010; or
(ii) for an expenditure described in Subsection 59-7-610(1)(b) or 59-10-1007(1)(b), if the expenditure is made on or after July 1, 2010.
(d) Notwithstanding Subsections (5)(b) and (c), a person may carry forward a tax credit in accordance with Section 59-7-610 or 59-10-1007 if:
(i) the person is entitled to a tax credit under Section 59-7-610 or 59-10-1007; and
(ii) (A) for the purchase price of machinery or equipment described in Section 59-7-610 or 59-10-1007, the machinery or equipment is purchased on or before June 30, 2010; or
(B) for an expenditure described in Subsection 59-7-610(1)(b) or 59-10-1007(1)(b), the expenditure is made on or before June 30, 2010.
(6) [Title 63, Chapter 47] Title 63M, Chapter 8, Utah Commission for Women and Families, is repealed July 1, 2011.
(7) [Title 63, Chapter 75] Title 63M, Chapter 9, Families, Agencies, and Communities Together for Children and Youth At Risk Act, is repealed July 1, 2016.
(8) [Title 63, Chapter 88] Title 51, Chapter 9, Part 5, Navajo Trust Fund, is repealed July 1, 2008.
(9) [Title 63, Chapter 99] Title 63M, Chapter 11, Utah Commission on Aging, is repealed July 1, 2009.
(10) Section 63A-4-204, authorizing the Risk Management Fund to provide coverage to any public school district that chooses to participate, is repealed July 1, 2016.
(11) Section 63C-8-106, Rural residency training program, is repealed July 1, 2015.
Section 1593. Section 63I-1-267, which is renumbered from Section 63-55-267 is renumbered and amended to read:
[63-55-267
]. 63I-1-267. Repeal dates, Title 67.(1) Section 67-1-15 is repealed December 31, 2017.
(2) Sections 67-1a-10 and 67-1a-11 creating the Commission on Civic and Character Education and establishing its duties are repealed on July 1, 2011.
Section 1594. Section 63I-1-269, which is renumbered from Section 63-55-269 is renumbered and amended to read:
[63-55-269
]. 63I-1-269. Repeal dates, Title 69.Section 69-2-5.6, Emergency services telephone charge to fund statewide unified E-911 emergency service, is repealed July 1, 2011.
Section 1595. Section 63I-1-272, which is renumbered from Section 63-55-272 is renumbered and amended to read:
[63-55-272
]. 63I-1-272. Repeal dates, Title 72.Section 1596. Section 63I-1-273, which is renumbered from Section 63-55-273 is renumbered and amended to read:
[63-55-273
]. 63I-1-273. Repeal dates, Title 73.Title 73, Chapter 27, State Water Development Commission, is repealed December 31, 2008.
Section 1597. Section 63I-1-277, which is renumbered from Section 63-55-277 is renumbered and amended to read:
[63-55-277
]. 63I-1-277. Repeal dates, Title 77.Section 1598. Section 63I-1-278, which is renumbered from Section 63-55-278 is renumbered and amended to read:
[63-55-278
]. 63I-1-278. Repeal dates, Title 78.(1) The Office of the Court Administrator, created in Section 78-3-23, is repealed July 1, 2008.
(2) Foster care citizen review boards and steering committee, created in Title 78, Chapter 3g, is repealed July 1, 2012.
(3) Alternative Dispute Resolution Act, created in Title 78, Chapter 31b, is repealed July 1, 2016.
(4) Section 78-14-17, regarding medical malpractice arbitration agreements, is repealed July 1, 2009.
(5) The case management program coordinator in Subsection 78-3-25(4) is repealed July 1, 2009.
Section 1599. Section 63I-2-101 is enacted to read:
CHAPTER 2. REPEAL DATES BY TITLE ACT
Part 1. General Provisions
63I-2-101. Title.
This chapter is known as the "Repeal Dates By Title Act."
Section 1600. Section 63I-2-210, which is renumbered from Section 63-55b-110 is renumbered and amended to read:
Part 2. Repeal Dates by Title
[63-55b-110]. 63I-2-210. Repeal dates -- Title 10.
Section 10-2-427 is repealed July 1, 2010.
Section 1601. Section 63I-2-220, which is renumbered from Section 63-55b-120 is renumbered and amended to read:
[63-55b-120
]. 63I-2-220. Repeal dates, Title 20A.Section 20A-2-107.5 is repealed July 1, 2008.
Section 1602. Section 63I-2-223, which is renumbered from Section 63-55b-123 is renumbered and amended to read:
[63-55b-123
]. 63I-2-223. Repeal dates -- Title 23.This section is reserved - ASK GAY how to handle these sections that don't have any text in them.
Section 1603. Section 63I-2-226, which is renumbered from Section 63-55b-126 is renumbered and amended to read:
[63-55b-126
]. 63I-2-226. Repeal dates -- Title 26.(1) Section 26-38-4 is repealed January 1, 2009.
(2) Title 26, Chapter 46, Utah Health Care Workforce Financial Assistance Program, is repealed July 1, 2017.
Section 1604. Section 63I-2-231, which is renumbered from Section 63-55b-131 is renumbered and amended to read:
[63-55b-131
]. 63I-2-231. Repeal dates, Title 31A.Section 31A-23a-415 is repealed July 1, 2011.
Section 1605. Section 63I-2-232, which is renumbered from Section 63-55b-132 is renumbered and amended to read:
[63-55b-132
]. 63I-2-232. Repeal dates -- Title 32A.Section 1606. Section 63I-2-234, which is renumbered from Section 63-55b-134 is renumbered and amended to read:
[63-55b-134
]. 63I-2-234. Repeal dates -- Title 34A.Section 1607. Section 63I-2-253, which is renumbered from Section 63-55b-153 is renumbered and amended to read:
[63-55b-153
]. 63I-2-253. Repeal dates -- Titles 53, 53A, and 53B.(1) Section 53-3-210 is repealed February 1, 2007.
(2) Section 53A-1-403.5 is repealed July 1, 2012.
(3) Subsection 53A-1a-511(7)(c) is repealed July 1, 2007.
(4) Section 53A-3-702 is repealed July 1, 2008.
(5) Section 53A-6-112 is repealed July 1, 2009.
(6) Section 53A-17a-152 is repealed July 1, 2010.
Section 1608. Section 63I-2-254, which is renumbered from Section 63-55b-154 is renumbered and amended to read:
[63-55b-154
]. 63I-2-254. Repeal dates -- Title 54.Section 1609. Section 63I-2-258, which is renumbered from Section 63-55b-158 is renumbered and amended to read:
[63-55b-158
]. 63I-2-258. Repeal dates -- Title 58.Section 58-31b-301.6, Medication Aide Certified Pilot Program, is repealed May 15, 2010.
Section 1610. Section 63I-2-259, which is renumbered from Section 63-55b-159 is renumbered and amended to read:
[63-55b-159
]. 63I-2-259. Repeal dates -- Title 59.Section 1611. Section 63I-2-263, which is renumbered from Section 63-55b-163 is renumbered and amended to read:
[63-55b-163
]. 63I-2-263. Repeal dates, Title 63 to Title 63B.(1) Section 63-38a-105 is repealed July 1, 2007.
(2) Sections 63-63b-101 and 63-63b-102 are repealed on July 1, 2007.
(3) Section 63B-14-101 is repealed December 31, 2008.
Section 1612. Section 63I-2-264, which is renumbered from Section 63-55b-164 is renumbered and amended to read:
[63-55b-164
]. 63I-2-264. Repeal dates -- Title 64.Section 1613. Section 63I-2-267, which is renumbered from Section 63-55b-167 is renumbered and amended to read:
[63-55b-167
]. 63I-2-267. Repeal dates -- Title 67.Section 1614. Section 63I-2-272, which is renumbered from Section 63-55b-172 is renumbered and amended to read:
[63-55b-172
]. 63I-2-272. Repeal dates -- Title 72.Section 72-3-113 is repealed January 1, 2020.
Section 1615. Section 63I-2-276, which is renumbered from Section 63-55b-176 is renumbered and amended to read:
[63-55b-176
]. 63I-2-276. Repeal dates -- Title 76.Section 1616. Section 63I-2-277, which is renumbered from Section 63-55b-177 is renumbered and amended to read:
[63-55b-177
]. 63I-2-277. Repeal dates, Title 77.Section 77-2a-3.1 is repealed June 30, 2008.
Section 1617. Section 63I-2-278, which is renumbered from Section 63-55b-178 is renumbered and amended to read:
[63-55b-178
]. 63I-2-278. Repeal dates, Title 78.(1) Section 78-9-101, Practicing law without a license, is repealed May 3, 2012.
(2) Subsection 78-45-7.14(1) is repealed January 1, 2010.
Section 1618. Section 63I-3-101, which is renumbered from Section 63-54-101 is renumbered and amended to read:
CHAPTER 3. CONSTITUTIONAL REVISION COMMISSION ACT
Part 1. General Provisions
[63-54-101]. 63I-3-101. Title.
This chapter is known as the "Constitutional Revision Commission Act."
Section 1619. Section 63I-3-102, which is renumbered from Section 63-54-102 is renumbered and amended to read:
[63-54-102
]. 63I-3-102. Definitions.As used in this chapter, "commission" means the Utah Constitutional Revision Commission created under Section [63-54-103] 63I-3-201.
Part 2. Commission and Duties
Section 1620. Section 63I-3-201, which is renumbered from Section 63-54-103 is renumbered and amended to read:
[63-54-103
]. 63I-3-201. Creation -- Members -- Appointment -- Qualifications -- Term of office -- Maximum length of service.(1) There is created a state commission to be known as the Utah Constitutional Revision Commission, composed of 15 members.
(2) (a) The speaker of the House of Representatives shall appoint three members from the House of Representatives, not more than two of whom may be from the same political party.
(b) The president of the Senate shall appoint three members from the Senate, not more than two of whom may be from the same political party.
(c) The governor shall appoint three members, not more than two of whom may be from the same political party.
(3) (a) The nine members appointed under Subsection (2) shall select six additional members.
(b) In selecting the six additional members, consideration shall be given to achieving representation from the major geographical areas of the state and to achieving as closely as possible equal bipartisan representation.
(4) The term for each commission member shall be six years.
(5) A commission member may not serve on the commission more than 12 consecutive years.
Section 1621. Section 63I-3-202, which is renumbered from Section 63-54-104 is renumbered and amended to read:
[63-54-104
]. 63I-3-202. Vacancies -- Person filling a vacancy begins serving new term.(1) If a member appointed by the speaker of the House resigns, is unable to serve, or is no longer a member of the House of Representatives, the vacancy shall be filled by the speaker of the House, as provided in Subsection [63-54-103] 63I-3-201(2)(a).
(2) If a member appointed by the president of the Senate resigns, is unable to serve, or is no longer a member of the Senate, the vacancy shall be filled by the president of the Senate, as provided in Subsection [63-54-103] 63I-3-201(2)(b).
(3) If a member appointed by the governor resigns or is unable to serve, the vacancy shall be filled by the governor, as provided in Subsection [63-54-103] 63I-3-201(2)(c).
(4) If a member appointed by the nine commission members appointed under Subsection [63-54-103] 63I-3-201(3) resigns or is unable to serve, the vacancy shall be filled by those nine commission members as provided in Subsection [63-54-103] 63I-3-201(3).
(5) A person appointed to fill a vacancy under this section does not serve the remaining unexpired term of the member that the person is replacing but begins serving a new term.
Section 1622. Section 63I-3-203, which is renumbered from Section 63-54-105 is renumbered and amended to read:
[63-54-105
]. 63I-3-203. Duties.(1) Subject to Subsection (2), the Utah Constitutional Revision Commission shall:
(a) conduct a comprehensive examination of the Utah Constitution, as amended, and make recommendations to the governor and the Legislature as to specific proposed constitutional amendments to implement the commission's recommendations for changes in the constitution; and
(b) upon request of the governor, president of the Senate, speaker of the House of Representatives, minority leader of the Senate, minority leader of the House, or the legislative sponsor of a resolution to amend the Utah Constitution, advise the governor and the Legislature on any proposed constitutional amendment or revision.
(2) The commission may not make a recommendation on a proposed constitutional amendment after both houses of the Legislature have taken final action on it.
(3) The commission shall select a chair and a vice chair from among its members.
Section 1623. Section 63I-3-204, which is renumbered from Section 63-54-106 is renumbered and amended to read:
[63-54-106
]. 63I-3-204. The commission may invite testimony.In performing its duties and responsibilities, the commission may invite testimony from the governor, state agencies, members of the Utah Legislature, and responsible members of the public.
Section 1624. Section 63I-3-205, which is renumbered from Section 63-54-107 is renumbered and amended to read:
[63-54-107
]. 63I-3-205. Public hearings -- Purpose.The commission may hold public hearings that it considers advisable and in locations within the state that it chooses in order to afford any interested person who is a citizen of this state an opportunity to appear and present views in respect to any subject relating to the work of the commission.
Section 1625. Section 63I-3-206, which is renumbered from Section 63-54-108 is renumbered and amended to read:
[63-54-108
]. 63I-3-206. Per diem and expenses of members.(1) (a) A member who is not a government employee may not receive compensation or benefits for the member's service, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) A member who is not a government employee may decline to receive per diem and expenses for the member's service.
(2) (a) A state government officer or employee member who does not receive salary, per diem, or expenses from the member's agency for the member's service may receive per diem and expenses incurred in the performance of the member's official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) A state government officer or employee member may decline to receive per diem and expenses for the member's service.
(3) Each legislator on the committee shall receive compensation and expenses as provided by law and legislative rule.
Section 1626. Section 63I-3-207, which is renumbered from Section 63-54-109 is renumbered and amended to read:
[63-54-109
]. 63I-3-207. Appointment of staff.The Office of Legislative Research and General Counsel shall, in consultation with the chair and vice chair, provide staffing for the commission. The office shall employ other staff members as the commission considers desirable or necessary.
Section 1627. Section 63I-4-101 is enacted to read:
CHAPTER 4. PRIVATIZATION POLICY BOARD ACT
Part 1. General Provisions
63I-4-101. Title.
This chapter is known as the "Privatization Policy Board Act."
Section 1628. Section 63I-4-102, which is renumbered from Section 63-55a-1 is renumbered and amended to read:
[63-55a-1
]. 63I-4-102. Definitions.(1) (a) "Agency" means a department, division, office, bureau, board, commission, or other administrative unit of the state.
(b) "Agency" includes departments, divisions, offices, bureaus, boards, commissions, and other administrative units of the state's counties and municipalities.
(2) "Agency head" means the chief administrative officer of an agency.
(3) "Privatization" means action by a state agency to contract with the private sector or with another state agency to perform functions or services currently being performed by it.
Section 1629. Section 63I-4-201, which is renumbered from Section 63-55a-2 is renumbered and amended to read:
Part 2. Board Membership and Duties
[63-55a-2]. 63I-4-201. Privatization Policy Board -- Created -- Membership -- Operations -- Expenses.
(1) (a) There is created a Privatization Policy Board composed of 15 members.
(b) The governor shall appoint:
(i) two senators, one each from the majority and minority political parties, from names recommended by the president of the Senate;
(ii) two representatives, one each from the majority and minority political parties, from names recommended by the speaker of the House;
(iii) two members representing public employees, from names recommended by the largest public employees' association;
(iv) one member from state management;
(v) five members from the private business community;
(vi) one member representing education;
(vii) one member representing the Utah League of Cities and Towns from names recommended by the league; and
(viii) one member representing the Utah Association of Counties from names recommended by the association.
(2) (a) Except as required by Subsection (2)(b), board members shall serve four-year terms.
(b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(3) (a) Each board member shall hold office until his successor has been appointed and qualified.
(b) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(c) Eight members of the board are a quorum for the purpose of organizing the board and conducting the business of the board.
(d) The vote of a majority of members voting when a quorum is present is necessary for the board to take action.
(4) (a) At the initial meeting of the board, the board shall select one of their number to serve as chair of the board.
(b) The chief procurement officer or his designee is the nonvoting secretary to the board and is responsible for scheduling quarterly meetings.
(c) The board shall meet at least quarterly and at the call of the chair.
(5) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
Section 1630. Section 63I-4-202, which is renumbered from Section 63-55a-3 is renumbered and amended to read:
[63-55a-3
]. 63I-4-202. Privatization Policy Board -- Duties.(1) Except as otherwise provided in Subsection (5), the board shall:
(a) review whether or not certain services performed by existing state agencies could be privatized to provide the same types and quality of services that would result in cost savings;
(b) review particular requests for privatization of services and issues concerning agency competition with the private sector and determine whether privatization would be feasible and would result in cost savings and ways to eliminate any unfair competition;
(c) recommend privatization to the agency head when the proposed privatization is demonstrated to provide a more cost efficient and effective manner of providing existing governmental services;
(d) comply with the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act, in making rules establishing privatization standards, procedures, and requirements;
(e) maintain communication with and access information from, other entities promoting privatization;
(f) prepare an annual report that contains:
(i) information about the board's activities; and
(ii) recommendations on privatizing government services; and
(g) submit the annual report to the Legislature and the governor.
(2) In addition to filing copies of its recommendations for privatization with the relevant agency head, the board shall file copies of its recommendations for privatization with:
(a) the governor's office; and
(b) the Office of Legislative Fiscal Analyst for submission to the relevant Legislative Appropriation Subcommittee.
(3) (a) The board may appoint advisory groups to conduct studies, research, analyses, and make reports and recommendations with respect to subjects or matters within the jurisdiction of the board.
(b) At least one member of the board shall serve on each advisory group.
(4) This chapter does not preclude any agency from privatizing any service or function independently of the board if, as part of the contract that privatizes the function, the contractor assumes all liability to perform the privatizated function.
(5) The board may not exercise its authority under Subsection (1) over an agency referred to in Subsection [63-55a-1] 63I-4-102(b), unless requested by the agency.
Section 1631. Section 63I-5-101, which is renumbered from Section 63-91-101 is renumbered and amended to read:
CHAPTER 5. UTAH INTERNAL AUDIT ACT
Part 1. General Provisions
[63-91-101]. 63I-5-101. Title.
This chapter is known as the "Utah Internal Audit Act."
Section 1632. Section 63I-5-102, which is renumbered from Section 63-91-102 is renumbered and amended to read:
[63-91-102
]. 63I-5-102. Definitions.As used in this chapter:
(1) "Agency head" means a cabinet officer, an elected official, an executive director, or a board or commission vested with responsibility to administer or make policy for a state agency.
(2) "Agency internal audit director" or "audit director" means the person appointed by the agency head, with the approval of the audit committee if one has been established, to direct the internal audit function for the state agency.
(3) "Appointing authority" means:
(a) the governor, for state agencies;
(b) the Judicial Council, for judicial branch agencies;
(c) the Board of Regents, for higher education entities; and
(d) the State Board of Education, for the State Office of Education.
(4) "Audit committee" means a standing committee whose members are appointed by an appointing authority:
(a) from members of the agency governing board; and
(b) from individuals who do not have administrative responsibilities within the agency who have the expertise to provide effective oversight of and advice about internal audit activities and services.
(5) "Audit plan" means a list of audits to be performed by the internal audit organization within a specified period of time.
(6) "Agency governing board" is any board or commission that has policy making and oversight responsibility over the agency, including the authority to appoint and remove the agency director.
(7) "Higher education entity" means the board of regents, the institutional councils of each higher education institution, and each higher education institution.
(8) "Internal audit" means an independent appraisal activity established within a state agency as a control system to examine and evaluate the adequacy and effectiveness of other control systems within the agency.
(9) "Judicial branch agency" means each administrative entity of the judicial branch.
(10) (a) "State agency" means:
(i) each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state; and
(ii) each state public education entity.
(b) "State agency" does not mean:
(i) a legislative branch agency;
(ii) an independent agency;
(iii) a county, municipality, school district, local district, or special service district; or
(iv) any administrative subdivision of a county, municipality, school district, local district, or special service district.
Section 1633. Section 63I-5-201, which is renumbered from Section 63-91-201 is renumbered and amended to read:
Part 2. Internal Auditing Programs
[63-91-201]. 63I-5-201. Internal auditing programs -- State agencies.
(1) (a) The Departments of Administrative Services, Agriculture, Commerce, Community and Culture, Corrections, Workforce Services, Environmental Quality, Health, Human Services, Natural Resources, Public Safety, and Transportation; and the State Tax Commission shall conduct various types of auditing procedures as determined by the agency head or governor.
(b) The governor may, by executive order, require other state agencies to establish an internal audit program.
(c) An agency head may establish an internal audit program for his agency if the agency administers programs that:
(i) might pose a high liability risk to the state; or
(ii) are essential to the health, safety, and welfare of the citizens of Utah.
(2) (a) The Office of the Court Administrator shall conduct various types of auditing procedures as determined by the Judicial Council, including auditing procedures for courts not of record.
(b) The Judicial Council may, by rule, require other judicial agencies to establish an internal audit program.
(c) An agency head within the judicial branch may establish an internal audit program for his agency if the agency administers programs that:
(i) might pose a high liability risk to the state; or
(ii) are essential to the health, safety, and welfare of the citizens of Utah.
(3) (a) The University of Utah, Utah State University, Salt Lake Community College, Utah Valley University, and Weber State University shall conduct various types of auditing procedures as determined by the Board of Regents.
(b) The Board of Regents may issue policies requiring other higher education entities or programs to establish an internal audit program.
(c) An agency head within higher education may establish an internal audit program for his agency if the agency administers programs that:
(i) might pose a high liability risk to the state; or
(ii) are essential to the health, safety, and welfare of the citizens of Utah.
(4) The State Office of Education shall conduct various types of auditing procedures as determined by the State Board of Education.
Section 1634. Section 63I-5-301, which is renumbered from Section 63-91-301 is renumbered and amended to read:
Part 3. Audit Committee
[63-91-301]. 63I-5-301. Audit committee -- Powers and duties.
(1) Each appointing authority may establish an audit committee to monitor the activities of the agency internal audit organization.
(2) The appointing authority shall ensure that audit committee members have the expertise to provide effective oversight of and advice about internal audit activities and services.
(3) If an audit committee has been established, the audit committee shall:
(a) consent to the appointment or removal of the agency internal audit director as proposed by the agency head;
(b) consent to the internal auditing policies proposed by the agency head;
(c) review and approve the annual internal audit plan and budget;
(d) review internal and external audit reports, follow-up reports, and quality assurance reviews of the internal audit office; and
(e) periodically meet with the agency internal audit director to discuss pertinent matters, including whether there are any restrictions on the scope of audits.
Section 1635. Section 63I-5-302, which is renumbered from Section 63-91-302 is renumbered and amended to read:
[63-91-302
]. 63I-5-302. Agency head -- Powers and duties.(1) For each agency that establishes an internal audit program, the agency head shall:
(a) prepare and adopt, or if an audit committee has been established, propose to the audit committee, a formal policy that defines:
(i) the purpose of the agency's internal audit program;
(ii) the authority and responsibility of the agency's internal auditors; and
(b) ensure that the policy:
(i) places no limitations on the scope of the internal audit department's work; and
(ii) declares that auditors are to have no authority or responsibility for the activities they audit.
(2) The agency head shall appoint or employ an agency internal audit director with the consent of the audit committee, if an audit committee has been established.
(3) The agency head shall ensure that:
(a) the audit director is allowed to employ a sufficient number of professional and support staff to implement an effective program of internal auditing;
(b) compensation, training, job tenure, and advancement of internal auditing staff is based upon job performance;
(c) the audit director and staff collectively possess the knowledge, skills, and experience essential to the practices of the profession and are proficient in applying internal auditing standards, procedures, and techniques;
(d) the internal audit organization has employees who are qualified in disciplines such as accounting, business management, public administration, human resource management, economics, finance, statistics, electronic data processing, engineering, and law as needed to meet the audit responsibilities;
(e) internal audit staff are free of operational and management responsibilities that would impair their ability to make independent audits of any aspects of the agency's operations;
(f) the audit director and the internal audit staff have access to all personnel and any records, data, and other information of the state agency that they consider necessary to carry out their assigned duties; and
(g) the agency internal audit director reports to the agency head and to the audit committee, if one has been established, and has freedom of access to the agency head to ensure that the director is responsive to the agency head's specific requests, directions, and needs.
(4) The agency internal audit director may, within budgetary constraints, contract with consultants to assist with audits.
(5) The agency head shall either:
(a) approve the annual internal audit plan and budget prepared by the agency internal audit director; or
(b) if an audit committee has been established, review the plan and budget and submit them to the audit committee for approval.
Section 1636. Section 63I-5-401, which is renumbered from Section 63-91-401 is renumbered and amended to read:
Part 4. Duties of Director
[63-91-401]. 63I-5-401. Duties of the agency internal audit director.
(1) The agency internal audit director may:
(a) furnish independent analyses, appraisals, and recommendations that may, depending upon the audit scope, identify:
(i) the adequacy of the state agency's systems of internal control;
(ii) the efficiency and effectiveness of agency management in carrying out assigned responsibilities; and
(iii) the agency's compliance with applicable laws, rules, and regulations;
(b) submit audit reports directly to the agency head and to the audit committee, if one has been established;
(c) conduct internal audits of state agency programs, activities, and functions that may consist of one or more of the following objectives:
(i) to verify the accuracy and reliability of agency records;
(ii) to assess compliance with management policies, plans, procedures, and regulations;
(iii) to assess compliance with applicable laws, rules, and regulations;
(iv) to evaluate the efficient and effective use of agency resources; and
(v) to verify the appropriate protection of agency assets;
(d) prepare audit reports of findings;
(e) review and evaluate internal controls over the state agency's accounting systems, administrative systems, electronic data processing systems, and all other major systems necessary to ensure the fiscal and administrative accountability of the state agency;
(f) develop audit plans containing the information required by Subsection (2) to be based on the findings of periodic risk assessments;
(g) upon request, make a copy of the approved audit plan available to the state auditor, legislative auditor, or other appropriate external auditor to assist in planning and coordination of any external financial, compliance, electronic data processing, or performance audit;
(h) determine the scope and assignment of the audits;
(i) perform an audit of a special program, activity, function, or organizational unit at the direction of the agency head;
(j) maintain the classification of any public records consistent with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act;
(k) be subject to the same penalties as the custodian of those public records for violating [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(l) identify in the audit report any abuse, illegal acts, errors and omissions, or conflicts of interest.
(2) (a) The audit plan required by this section shall:
(i) identify the individual audits to be conducted during each year;
(ii) identify the related resources to be devoted to each of the respective audits;
(iii) ensure that internal controls are reviewed periodically as determined by the agency head or the audit committee, if one has been established; and
(iv) ensure that audits that evaluate the efficient and effective use of agency resources are adequately represented in the plan.
(b) The agency internal audit director shall submit the audit plan to the agency head and the audit committee, if one has been established, for approval.
(3) The agency internal audit director shall ensure that:
(a) audits are conducted in accordance with professional auditing standards such as those published by the Institute of Internal Auditors, Inc., the American Institute of Certified Public Accountants and, when required by other law, regulation, agreement, contract, or policy, in accordance with Government Auditing Standards, issued by the Comptroller General of the United States;
(b) all reports of audit findings issued by internal audit staff shall include a statement that the audit was conducted according to the appropriate standards;
(c) public release of reports of audit findings comply with the conditions specified by the state laws and rules governing the state agency;
(d) copies of all reports of audit findings issued by the internal audit staff are available to the Offices of the Legislative Auditor General and the State Auditor upon request; and
(e) significant audit matters that cannot be appropriately addressed by the agency internal audit office are referred to either the Office of Legislative Auditor General or the Office of the State Auditor.
Section 1637. Section 63J-1-101, which is renumbered from Section 63-38-1 is renumbered and amended to read:
TITLE 63J. BUDGETING
CHAPTER 1. BUDGETARY PROCEDURES ACT
Part 1. General Provisions
[63-38-1]. 63J-1-101. Title.
(1) This title is known as "Budgeting."
(2) This [act shall be known and may be cited] chapter is known as the "Budgetary Procedures Act."
Section 1638. Section 63J-1-103, which is renumbered from Section 63-38-9.5 is renumbered and amended to read:
[63-38-9.5
]. 63J-1-103. Agency exempt from act.The Utah Housing Corporation is exempt from this act.
Section 1639. Section 63J-1-201, which is renumbered from Section 63-38-2 is renumbered and amended to read:
Part 2. Budget and Funds
[63-38-2]. 63J-1-201. Governor to submit budget to Legislature -- Contents -- Preparation -- Appropriations based on current tax laws and not to exceed estimated revenues.
(1) (a) The governor shall, within three days after the convening of the Legislature in the annual general session, submit a budget for the ensuing fiscal year by delivering it to the presiding officer of each house of the Legislature together with a schedule for all of the proposed appropriations of the budget, clearly itemized and classified.
(b) The budget message shall include:
(i) a projection of estimated revenues and expenditures for the next fiscal year; and
(ii) the source of all direct, indirect, or in-kind matching funds for all federal grants or assistance programs included in the budget.
(2) At least 34 days before the submission of any budget, the governor shall deliver a confidential draft copy of his proposed budget recommendations to the Office of the Legislative Fiscal Analyst.
(3) (a) The budget shall contain a complete plan of proposed expenditures and estimated revenues for the next fiscal year based upon the current fiscal year state tax laws and rates.
(b) The budget may be accompanied by a separate document showing proposed expenditures and estimated revenues based on changes in state tax laws or rates.
(4) The budget shall be accompanied by a statement showing:
(a) the revenues and expenditures for the last fiscal year;
(b) the current assets, liabilities, and reserves, surplus or deficit, and the debts and funds of the state;
(c) an estimate of the state's financial condition as of the beginning and the end of the period covered by the budget;
(d) a complete analysis of lease with an option to purchase arrangements entered into by state agencies;
(e) the recommendations for each state agency for new full-time employees for the next fiscal year; which recommendation should be provided also to the State Building Board under Subsection 63A-5-103(2);
(f) any explanation the governor may desire to make as to the important features of the budget and any suggestion as to methods for the reduction of expenditures or increase of the state's revenue; and
(g) the information detailing certain regulatory fee increases required by Section [63-38-3.2] 63J-1-303.
(5) The budget shall include an itemized estimate of the appropriations for:
(a) the Legislative Department as certified to the governor by the president of the Senate and the speaker of the House;
(b) the Executive Department;
(c) the Judicial Department as certified to the governor by the state court administrator;
(d) payment and discharge of the principal and interest of the indebtedness of the state;
(e) the salaries payable by the state under the Utah Constitution or under law for the lease agreements planned for the next fiscal year;
(f) other purposes that are set forth in the Utah Constitution or under law; and
(g) all other appropriations.
(6) Deficits or anticipated deficits shall be included in the budget.
(7) (a) (i) For the purpose of preparing and reporting the budget, the governor shall require from the proper state officials, including public and higher education officials, all heads of executive and administrative departments and state institutions, bureaus, boards, commissions, and agencies expending or supervising the expenditure of the state moneys, and all institutions applying for state moneys and appropriations, itemized estimates of revenues and expenditures.
(ii) (A) The governor may also require other information under these guidelines and at times as the governor may direct.
(B) These guidelines may include a requirement for program productivity and performance measures, where appropriate, with emphasis on outcome indicators.
(b) The estimate for the Legislative Department as certified by the presiding officers of both houses shall be included in the budget without revision by the governor.
(c) The estimate for the Judicial Department, as certified by the state court administrator, shall also be included in the budget without revision, but the governor may make separate recommendations on it.
(d) The governor may require the attendance at budget meetings of representatives of public and higher education, state departments and institutions, and other institutions or individuals applying for state appropriations.
(e) The governor may revise all estimates, except those relating to the Legislative Department, the Judicial Department, and those providing for the payment of principal and interest to the state debt and for the salaries and expenditures specified by the Utah Constitution or under the laws of the state.
(8) The total appropriations requested for expenditures authorized by the budget may not exceed the estimated revenues from taxes, fees, and all other sources for the next ensuing fiscal year.
(9) If any item of the budget as enacted is held invalid upon any ground, the invalidity does not affect the budget itself or any other item in it.
(10) (a) In submitting the budgets for the Departments of Health and Human Services and the Office of the Attorney General, the governor shall consider a separate recommendation in his budget for funds to be contracted to:
(i) local mental health authorities under Section 62A-15-110;
(ii) local substance abuse authorities under Section 62A-15-110;
(iii) area agencies under Section 62A-3-104.2;
(iv) programs administered directly by and for operation of the Divisions of Substance Abuse and Mental Health and Aging and Adult Services;
(v) local health departments under Title 26A, Chapter 1, Local Health Departments; and
(vi) counties for the operation of Children's Justice Centers under Section 67-5b-102.
(b) In his budget recommendations under Subsections (10)(a)(i), (ii), and (iii), the governor shall consider an amount sufficient to grant local health departments, local mental health authorities, local substance abuse authorities, and area agencies the same percentage increase for wages and benefits that he includes in his budget for persons employed by the state.
(c) If the governor does not include in his budget an amount sufficient to grant the increase described in Subsection (10)(b), he shall include a message to the Legislature regarding his reason for not including that amount.
(11) (a) In submitting the budget for the Department of Agriculture, the governor shall consider an amount sufficient to grant local conservation districts and Utah Association of Conservation District employees the same percentage increase for wages and benefits that he includes in his budget for persons employed by the state.
(b) If the governor does not include in his budget an amount sufficient to grant the increase described in Subsection (11)(a), he shall include a message to the Legislature regarding his reason for not including that amount.
(12) (a) In submitting the budget for the Utah State Office of Rehabilitation and the Division of Services for People with Disabilities, the Division of Child and Family Services, and the Division of Juvenile Justice Services within the Department of Human Services, the governor shall consider an amount sufficient to grant employees of corporations that provide direct services under contract with those divisions, the same percentage increase for cost-of-living that he includes in his budget for persons employed by the state.
(b) If the governor does not include in his budget an amount sufficient to grant the increase described in Subsection (12)(a), he shall include a message to the Legislature regarding his reason for not including that amount.
(13) (a) The Families, Agencies, and Communities Together Council may propose to the governor under Subsection [63-75-4] 63M-9-201(4)(e) a budget recommendation for collaborative service delivery systems operated under Section [63-75-6.5] 63M-9-402.
(b) The Legislature may, through a specific program schedule, designate funds appropriated for collaborative service delivery systems operated under Section [63-75-6.5] 63M-9-402.
(14) The governor shall include in his budget the state's portion of the budget for the Utah Communications Agency Network established in Title 63C, Chapter 7, Utah Communications Agency Network Act.
(15) (a) The governor shall include a separate recommendation in the governor's budget for funds to maintain the operation and administration of the Utah Comprehensive Health Insurance Pool.
(b) In making the recommendation the governor may consider:
(i) actuarial analysis of growth or decline in enrollment projected over a period of at least three years;
(ii) actuarial analysis of the medical and pharmacy claims costs projected over a period of at least three years;
(iii) the annual Medical Care Consumer Price Index;
(iv) the annual base budget for the pool established by the Commerce and Revenue Appropriations Subcommittee for each fiscal year;
(v) the growth or decline in insurance premium taxes and fees collected by the tax commission and the insurance department; and
(vi) the availability of surplus General Fund revenue under Section [63-38-2.5] 63J-1-202 and Subsection 59-14-204(5)(b).
(16) In adopting a budget for each fiscal year, the Legislature shall consider an amount sufficient to grant local health departments, local mental health authorities, local substance abuse authorities, area agencies on aging, conservation districts, and Utah Association of Conservation District employees the same percentage increase for wages and benefits that is included in the budget for persons employed by the state.
(17) (a) In adopting a budget each year for the Utah Comprehensive Health Insurance Pool, the Legislature shall determine an amount that is sufficient to fund the pool for each fiscal year.
(b) When making a determination under Subsection (17)(a), the Legislature shall consider factors it determines are appropriate, which may include:
(i) actuarial analysis of growth or decline in enrollment projected over a period of at least three years;
(ii) actuarial analysis of the medical and pharmacy claims costs projected over a period of at least three years;
(iii) the annual Medical Care Consumer Price Index;
(iv) the annual base budget for the pool established by the Commerce and Revenue Appropriations Subcommittee for each fiscal year;
(v) the growth or decline in insurance premium taxes and fees collected by the tax commission and the insurance department from the previous fiscal year; and
(vi) the availability of surplus General Fund revenue under Section [63-38-2.5] 63J-1-202 and Subsection 59-14-204(5)(b).
(c) The funds appropriated by the Legislature to fund the Utah Comprehensive Health Insurance Pool as determined under Subsection (17)(a):
(i) shall be deposited into the enterprise fund established by Section 31A-29-120; and
(ii) are restricted and are to be used to maintain the operation, administration, and management of the Utah Comprehensive Health Insurance Pool created by Section 31A-29-104.
(18) In considering the factors in Subsections (15)(b)(i), (ii), and (iii) and Subsections (17)(b)(i), (ii), and (iii), the governor and the Legislature may consider the actuarial data and projections prepared for the board of the Utah Comprehensive Health Insurance Pool as it develops its financial statements and projections for each fiscal year.
Section 1640. Section 63J-1-202, which is renumbered from Section 63-38-2.5 is renumbered and amended to read:
[63-38-2.5
]. 63J-1-202. Establishing a General Fund Budget Reserve Account -- Providing for deposits and expenditures from the account.(1) There is created within the General Fund a restricted account to be known as the General Fund Budget Reserve Account, which is designated to receive the surplus revenue required by this section.
(2) (a) (i) At the end of any fiscal year in which the Division of Finance, in conjunction with the completion of the annual audit by the state auditor, determines that there is a General Fund surplus, 25% of the surplus shall be transferred to the General Fund Budget Reserve Account, except that the amount in the combined totals of the General Fund Budget Reserve Account and the Education Budget Reserve Account created in Section [63-38-2.6] 63J-1-203 may not exceed 6% of the total of the General Fund appropriation amount and the Uniform School Fund appropriation amount for the fiscal year in which the surplus occurred.
(ii) In addition to Subsection (2)(a)(i), if a surplus exists and if, within the last ten years, the Legislature has appropriated any money from the General Fund Budget Reserve Account that has not been replaced by appropriation or as provided in this Subsection (2)(a)(ii), the Division of Finance shall, before any contingent appropriations or other transfers required by law are made, transfer up to 25% more of the surplus to the General Fund Budget Reserve Account to replace the amounts appropriated until transfers of the surplus under this Subsection (2)(a)(ii) have replaced the appropriations from the fund.
(b) The amount to be transferred to the General Fund Budget Reserve Account shall be determined before any other contingency appropriation using surplus funds.
(3) (a) If, at the close of any fiscal year, there appear to be insufficient monies to pay additional debt service for any bonded debt authorized by the Legislature, the Division of Finance may hold back monies from any General Fund surplus sufficient to pay the additional debt service requirements resulting from issuance of bonded debt that was authorized by the Legislature.
(b) The Division of Finance may not spend the hold back amount for debt service under Subsection (3)(a) unless and until it is appropriated by the Legislature.
(c) If, after calculating the amount for transfers to the General Fund Budget Reserve Account, the remaining surplus is insufficient to cover the hold back for debt service required by Subsection (3)(a), the Division of Finance shall reduce the transfer to the General Fund Budget Reserve Account by the amount necessary to cover the debt service hold back.
(d) Notwithstanding Subsection (2), the Division of Finance shall hold back the General Fund balance for debt service authorized by this Subsection (3) before making any transfers to the General Fund Budget Reserve Account or any other designation or allocation of surplus.
(4) (a) Any appropriation made by the Legislature from the General Fund Budget Reserve Account may only be used to cover operating deficits, state settlement agreements approved under [Title 63, Chapter 38b] Title 63G, Chapter 10, State Settlement Agreements, or retroactive tax refunds.
(b) The General Fund Budget Reserve Account is available for appropriation to fund operating deficits in public education appropriations.
(5) All interest generated from investments of money in the General Fund Budget Reserve Account shall be deposited into the account.
Section 1641. Section 63J-1-203, which is renumbered from Section 63-38-2.6 is renumbered and amended to read:
[63-38-2.6
]. 63J-1-203. Establishing an Education Budget Reserve Account -- Providing for deposits and expenditures from the account.(1) There is created within the Education Fund a restricted account to be known as the Education Budget Reserve Account, which is designated to receive the surplus revenue required by this section.
(2) (a) (i) At the end of any fiscal year in which the Division of Finance, in conjunction with the completion of the annual audit by the state auditor, determines that there is a surplus in the Education Fund, the Uniform School Fund or both, 25% of the cumulative surplus shall be transferred to the Education Budget Reserve Account, except that the amount in the combined totals of the Education Budget Reserve Account and the General Fund Budget Reserve Account created in Section [63-38-2.5] 63J-1-202 may not exceed 6% of the total combined appropriations from the Education Fund and the General Fund for the fiscal year in which the surplus occurred.
(ii) In addition to Subsection (2)(a)(i), if a surplus exists and if, within the last ten years, the Legislature has appropriated any money from the Education Budget Reserve Account that has not been replaced by appropriation or as provided in this Subsection (2)(a)(ii), the Division of Finance shall, before any contingent appropriations or other transfers required by law are made, transfer up to 25% more of the surplus to the Education Budget Reserve Account to replace the amounts appropriated until transfers of the surplus under this Subsection (2)(a)(ii) have replaced the appropriations from the fund.
(b) The amount to be transferred to the Education Budget Reserve Account shall be determined before any other contingency appropriation using surplus funds.
(3) Any appropriation made by the Legislature from the Education Budget Reserve Account may only be used to cover operating deficits in the state's public and higher education system.
(4) All interest generated from investments of money in the Education Budget Reserve Account shall be deposited into the account.
Section 1642. Section 63J-1-204, which is renumbered from Section 63-38-2.7 is renumbered and amended to read:
[63-38-2.7
]. 63J-1-204. Deposits related to the Disaster Recovery Funding Act.Beginning with the fiscal year ending June 30, 2007, at the end of each fiscal year and after the transfer of surplus General Fund revenues has been made to the General Fund Budget Reserve Account as provided in Section [63-38-2.5] 63J-1-202, the Division of Finance shall deposit an amount into the State Disaster Recovery Restricted Account, created in Section 53-2-403, calculated by:
(1) determining the amount of surplus General Fund revenues after the transfer to the General Fund Budget Reserve Account under Section [63-38-2.5] 63J-1-202 that is unrestricted and undesignated;
(2) calculating an amount equal to the lesser of:
(a) 25% of the amount determined under Subsection (1); or
(b) 6% of the total of the General Fund appropriation amount and the Uniform School Fund appropriation amount for the fiscal year in which the surplus occurs; and
(3) adding to the amount calculated under Subsection (2) an amount equal to the lesser of:
(a) 25% more of the amount described in Subsection (1); or
(b) the amount necessary to replace in accordance with this Subsection (3) any amount appropriated from the State Disaster Recovery Restricted Account within ten fiscal years before the fiscal year in which the surplus occurs if:
(i) a surplus exists; and
(ii) the Legislature appropriates money from the State Disaster Recovery Restricted Account that is not replaced by appropriation or as provided in this Subsection (3).
Section 1643. Section 63J-1-301, which is renumbered from Section 63-38-3 is renumbered and amended to read:
Part 3. Appropriations and Expenditures
[63-38-3]. 63J-1-301. Appropriations governed by chapter -- Restrictions on expenditures -- Transfer of funds.
(1) All moneys appropriated by the Legislature are appropriated upon the terms and conditions set forth in this chapter, and any department, agency, or institution, except the Legislature and its committees, or where specifically exempted by the appropriating act, which accepts moneys appropriated by the Legislature, does so subject to this chapter.
(2) (a) In providing that certain appropriations are to be expended in accordance with a schedule or other restrictions, if any, set forth after each appropriations item, it is the intent of the Legislature to limit the amount of money to be expended from each appropriations item for certain specified purposes.
(b) Each schedule:
(i) is a restriction or limitation upon the expenditure of the respective appropriation made;
(ii) does not itself appropriate any money; and
(iii) is not itself an item of appropriation.
(c) An appropriation or any surplus of any appropriation may not be diverted from any department, agency, institution, or division to any other department, agency, institution, or division.
(d) The money appropriated subject to a schedule or restriction may be used only for the purposes authorized.
(e) (i) If any department, agency, or institution for which money is appropriated requests the transfer of moneys appropriated to it from one purpose or function to another purpose or function within an item of appropriation, the director of the Governor's Office of Planning and Budget shall require a new work program to be submitted for the fiscal year involved setting forth the purpose and necessity for such transfer.
(ii) The director and fiscal officer shall review the proposed change and submit their findings and recommendations to the governor, who may permit the transfer.
(iii) The state fiscal officer shall notify the Legislature through the Office of the Legislative Fiscal Analyst of action taken by the governor.
(f) Monies may not be transferred from one item of appropriation to any other item of appropriation.
(3) This section does not apply to the Investigation Account of the Water Resources Construction Fund. The investigation account shall continue to be governed by Section 73-10-8.
Section 1644. Section 63J-1-302, which is renumbered from Section 63-38-3.1 is renumbered and amended to read:
[63-38-3.1
]. 63J-1-302. Restrictions on agency expenditures of monies -- Lobbyists.(1) As used in this section:
(a) (i) "Agency" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state.
(ii) "Agency" includes the legislative branch, the judicial branch, the Board of Regents, the board of trustees of each higher education institution, each higher education institution, or a public education entity.
(b) "Executive action" means action undertaken by the governor, including signing or vetoing legislation, and action undertaken by any official in the executive branch of government.
(c) "Legislative action" means action undertaken by the Utah Legislature or any part of it.
(d) "Lobbyist" means a person who is not an employee of an agency who is hired as an independent contractor by the agency to communicate with legislators or the governor for the purpose of influencing the passage, defeat, amendment, or postponement of legislative or executive action.
(2) A state agency or entity to which monies are appropriated by the Legislature may not expend any monies to pay a lobbyist.
Section 1645. Section 63J-1-303, which is renumbered from Section 63-38-3.2 is renumbered and amended to read:
[63-38-3.2
]. 63J-1-303. Fees -- Adoption, procedure, and approval -- Establishing and assessing fees without legislative approval.(1) As used in this section:
(a) (i) "Agency" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state.
(ii) "Agency" does not mean the Legislature or its committees.
(b) "Fee agency" means any agency that is authorized to establish regulatory fees.
(c) "Fee schedule" means the complete list of regulatory fees charged by a fee agency and the amount of those fees.
(d) "Regulatory fees" means fees established for licensure, registration, or certification.
(2) Each fee agency shall:
(a) adopt a schedule of fees assessed for services provided by the fee agency that are:
(i) reasonable, fair, and reflect the cost of services provided; and
(ii) established according to a cost formula determined by the director of the Governor's Office of Planning and Budget and the director of the Division of Finance in conjunction with the agency seeking to establish the regulatory fee;
(b) conduct a public hearing on any proposed regulatory fee and increase or decrease the proposed regulatory fee based upon the results of the public hearing;
(c) except as provided in Subsection (6), submit the fee schedule to the Legislature as part of the agency's annual appropriations request;
(d) where necessary, modify the fee schedule to implement the Legislature's actions; and
(e) deposit all regulatory fees collected under the fee schedule into the General Fund.
(3) A fee agency may not:
(a) set regulatory fees by rule; or
(b) charge or collect any regulatory fee without approval by the Legislature unless the fee agency has complied with the procedures and requirements of Subsection (5).
(4) The Legislature may approve, increase or decrease and approve, or reject any regulatory fee submitted to it by a fee agency.
(5) (a) After the public hearing required by this section, a fee agency may establish and assess regulatory fees without legislative approval if:
(i) the Legislature creates a new program that is to be funded by regulatory fees to be set by the Legislature; and
(ii) the new program's effective date is before the Legislature's next annual general session; or
(iii) the Division of Occupational and Professional licensing makes a special assessment against qualified beneficiaries under the Residence Lien Restriction and Lien Recovery Fund Act as provided in Subsection 38-11-206(1).
(b) Each fee agency shall submit its fee schedule or special assessment amount to the Legislature for its approval at a special session, if allowed in the governor's call, or at the next annual general session of the Legislature, whichever is sooner.
(c) Unless the fee schedule is approved by the Legislature, the fee agency may not collect a regulatory fee set according to this subsection after the adjournment of the annual general session following the session that established the new program.
(6) (a) Each fee agency that wishes to increase any regulatory fee by 5% or more shall obtain legislative approval for the fee increase as provided in this subsection before assessing the new regulatory fee.
(b) Each fee agency that wishes to increase any regulatory fee by 5% or more shall submit to the governor as part of the agency's annual appropriation request a list that identifies:
(i) the title or purpose of the regulatory fee;
(ii) the present amount of the regulatory fee;
(iii) the proposed new amount of the regulatory fee;
(iv) the percent that the regulatory fee will have increased if the Legislature approves the higher fee; and
(v) the reason for the increase in the regulatory fee.
(c) (i) The governor may review and approve, modify and approve, or reject the regulatory fee increases.
(ii) The governor shall transmit the list required by Subsection (6)(b), with any modifications, to the Legislative Fiscal Analyst with the governor's budget recommendations.
(d) Bills approving any regulatory fee increases of 5% or more shall be filed before the beginning of the Legislature's annual general session, if possible.
Section 1646. Section 63J-1-304, which is renumbered from Section 63-38-3.3 is renumbered and amended to read:
[63-38-3.3
]. 63J-1-304. Payment of fees prerequisite to service -- Exception.(1) (a) State and county officers required by law to charge fees may not perform any official service unless the fees prescribed for that service are paid in advance.
(b) When the fee is paid, the officer shall perform the services required.
(c) An officer is liable upon the officer's official bond for every failure or refusal to perform an official duty when the fees are tendered.
(2) (a) Except as provided in Subsection (2)(b), no fees may be charged:
(i) to the officer's state, or any county or subdivision of the state;
(ii) to any public officer acting for the state, county, or subdivision;
(iii) in cases of habeas corpus;
(iv) in criminal causes before final judgment;
(v) for administering and certifying the oath of office;
(vi) for swearing pensioners and their witnesses; or
(vii) for filing and recording bonds of public officers.
(b) Fees may be charged for payment:
(i) of recording fees for assessment area recordings in compliance with Section 11-42-205;
(ii) of recording fees for judgments recorded in compliance with Sections 57-3-106 and 78-5-119; and
(iii) to the state engineer under Section 73-2-14.
Section 1647. Section 63J-1-305, which is renumbered from Section 63-38-3.4 is renumbered and amended to read:
[63-38-3.4
]. 63J-1-305. Parking fees at court buildings.(1) State-owned or leased court facilities may not charge or collect fees for parking without prior approval by the Legislature.
(2) The Legislature may approve, increase, decrease and approve, or reject any parking fee submitted to it by the courts.
Section 1648. Section 63J-1-306, which is renumbered from Section 63-38-3.5 is renumbered and amended to read:
[63-38-3.5
]. 63J-1-306. Internal service funds -- Governance and review.(1) For purposes of this section:
(a) "Agency" means a department, division, office, bureau, or other unit of state government, and includes any subdivision of an agency.
(b) "Do not replace vehicles" means a vehicle accounted for in the Division of Fleet Operations for which charges to an agency for its use do not include amounts to cover depreciation or to accumulate assets to replace the vehicle at the end of its useful life.
(c) "Internal service fund agency" means an agency that provides goods or services to other agencies of state government or to other governmental units on a capital maintenance and cost reimbursement basis, and which recovers costs through interagency billings.
(d) "Revolving loan fund" means each of the revolving loan funds defined in Section 63A-3-205.
(2) An internal service fund agency is not subject to this section with respect to its administration of a revolving loan fund.
(3) An internal service fund agency may not bill another agency for services that it provides, unless the Legislature has:
(a) reviewed and approved the internal service fund agency's budget request;
(b) reviewed and approved the internal service fund agency's rates, fees, and other amounts that it charges those who use its services and included those rates, fees, and amounts in an appropriation act;
(c) approved the number of full-time, permanent positions of the internal service fund agency as part of the annual appropriation process; and
(d) appropriated to the internal service fund agency the internal service fund's estimated revenue based upon the rates and fee structure that are the basis for the estimate.
(4) (a) Except as provided in Subsection (4)(b), an internal service fund agency may not charge rates, fees, and other amounts that exceed the rates, fees, and amounts established by the Legislature in the appropriations act.
(b) (i) An internal service fund agency that begins a new service or introduces a new product between annual general sessions of the Legislature may establish and charge an interim rate or amount for that service or product.
(ii) The internal service fund agency shall submit that interim rate or amount to the Legislature for approval at the next annual general session.
(5) The internal service fund agency budget request shall separately identify the capital needs and the related capital budget.
(6) In the fiscal year that the accounting change referred to in Subsection 51-5-6(2) is implemented by the Division of Finance, the Division of Finance shall transfer equity created by that accounting change to any internal service fund agency up to the amount needed to eliminate any long-term debt and deficit working capital in the fund.
(7) No new internal service fund agency may be established unless reviewed and approved by the Legislature.
(8) (a) Except as provided in Subsection (8)(f), an internal service fund agency may not acquire capital assets unless legislative approval for acquisition of the assets has been included in an appropriations act for the internal service fund agency.
(b) An internal service fund agency may not acquire capital assets after the transfer mandated by Subsection (6) has occurred unless the internal service fund agency has adequate working capital.
(c) The internal service fund agency shall provide working capital from the following sources in the following order:
(i) first, from operating revenues to the extent allowed by state rules and federal regulations;
(ii) second, from long-term debt, subject to the restrictions of this section; and
(iii) last, from an appropriation.
(d) (i) To eliminate negative working capital, an internal service fund agency may incur long-term debt from the General Fund or Special Revenue Funds to acquire capital assets.
(ii) The internal service fund agency shall repay all long-term debt borrowed from the General Fund or Special Revenue Funds by making regular payments over the useful life of the asset according to the asset's depreciation schedule.
(e) (i) The Division of Finance may not allow an internal service fund agency's borrowing to exceed 90% of the net book value of the agency's capital assets as of the end of the fiscal year.
(ii) If an internal service fund agency wishes to purchase authorized assets or enter into equipment leases that would increase its borrowing beyond 90% of the net book value of the agency's capital assets, the agency may purchase those assets only with monies appropriated from another fund, such as the General Fund or a special revenue fund.
(f) (i) Except as provided in Subsection (8)(f)(ii), capital assets acquired through agency appropriation may not be transferred to any internal service fund agency without legislative approval.
(ii) Vehicles acquired by agencies from appropriated funds or monies appropriated to agencies to be used for vehicle purchases may be transferred to the Division of Fleet Operations and, when transferred, become part of the Fleet Operations Internal Service Fund.
(iii) Vehicles acquired with funding from sources other than state appropriations or acquired through the federal surplus property donation program may be transferred to the Division of Fleet Operations and, when transferred, become part of the Fleet Operations Internal Service Fund.
(iv) Unless otherwise approved by the Legislature, vehicles acquired under Subsection (8)(f)(iii) shall be accounted for as "do not replace" vehicles.
(9) The Division of Finance shall adopt policies and procedures related to the accounting for assets, liabilities, equity, revenues, expenditures, and transfers of internal service funds agencies.
Section 1649. Section 63J-1-307, which is renumbered from Section 63-38-3.6 is renumbered and amended to read:
[63-38-3.6
]. 63J-1-307. Appropriating from restricted accounts.(1) As used in this section, "operating deficit" means that estimated General Fund or Uniform School Fund revenues are less than budgeted for the current or next fiscal year.
(2) Notwithstanding any other statute that limits the Legislature's power to appropriate from a restricted account, if the Legislature determines that an operating deficit exists, unless prohibited by federal law or court order, the Legislature may, in eliminating the deficit, appropriate monies from a restricted account into the General Fund.
Section 1650. Section 63J-1-308, which is renumbered from Section 63-38-4 is renumbered and amended to read:
[63-38-4
]. 63J-1-308. Duplicate payment of claims prohibited.No claim against the state, the payment of which is provided for, shall be duplicated, and the amount of any appropriation for the payment of any such claim shall be withheld if it is covered by any other appropriation.
Section 1651. Section 63J-1-309, which is renumbered from Section 63-38-5 is renumbered and amended to read:
[63-38-5
]. 63J-1-309. Appropriations from special funds or accounts -- Transfer by proper official only.Whenever appropriations are made from special funds, or a fund account, the transfer of moneys from such funds, or accounts, to the General Fund or any other fund for budgetary purposes shall be made by the proper state fiscal officer.
Section 1652. Section 63J-1-310, which is renumbered from Section 63-38-6 is renumbered and amended to read:
[63-38-6
]. 63J-1-310. Warrants -- Not to be drawn until claim processed -- Redemption.(1) No warrant to cover any claim against any appropriation or fund shall be drawn until such claim has been processed as provided by law.
(2) The state treasurer shall return all redeemed warrants to the state fiscal officer for purposes of reconciliation, post-audit and verification of the state treasurer's fund balances.
Section 1653. Section 63J-1-311, which is renumbered from Section 63-38-7 is renumbered and amended to read:
[63-38-7
]. 63J-1-311. Cash funds -- Petty cash, application for -- Cash advances -- Revolving fund established by law excepted.(1) Before any new petty cash funds may be established, the commission, department, or agency requesting the fund or funds shall apply in writing to the state fiscal officer, setting out the reasons for which it is needed and the amount requested.
(2) The state fiscal officer shall review the application and submit it to the governor with his recommendations, and the governor may establish the fund or funds from moneys in the state treasury.
(3) The state fiscal officer may, in lieu of establishing petty cash, imprest cash, or revolving funds for state institutions of higher education, permit advances to be made from allotments to the institutions in sufficient amounts to provide necessary working bank balances to facilitate an orderly management of institutional affairs. The institutions shall make reports as required by the state fiscal officer for the expenditure of funds included in any advances.
(4) Revolving funds established by law are not subject to the provisions of this section.
Section 1654. Section 63J-1-401, which is renumbered from Section 63-38-8 is renumbered and amended to read:
Part 4. Unused Balances
[63-38-8]. 63J-1-401. End of fiscal year -- Unexpended balances -- Funds not to be closed out -- Pending claims -- Transfer of amounts from item of appropriation.
(1) As used in this section, "transaction control number" means the unique numerical identifier established by the Department of Health to track each medical claim, which indicates the date upon which the claim is entered.
(2) On or before August 31 of each fiscal year, the director of the Division of Finance shall close out to the proper fund or account all remaining unexpended and unencumbered balances of appropriations made by the Legislature, except:
(a) those funds classified under Title 51, Chapter 5, Funds Consolidation Act as:
(i) enterprise funds;
(ii) internal service funds;
(iii) trust and agency funds;
(iv) capital projects funds;
(v) college and university funds;
(vi) debt service funds; and
(vii) permanent funds;
(b) appropriations made to the Legislature and its committees;
(c) restricted special revenue funds, unless specifically directed to close out the fund in the fund's enabling legislation;
(d) acquisition and development funds appropriated to the Division of Parks and Recreation;
(e) funds encumbered to pay purchase orders issued prior to May 1 for capital equipment if delivery is expected before June 30;
(f) unexpended and unencumbered balances of appropriations that meet the requirements of Section [63-38-8.1] 63J-1-402; and
(g) any other appropriations excepted by statute or by an annual appropriations act.
(3) (a) Liabilities and related expenses for goods and services received on or before June 30 shall be recognized as expenses due and payable from appropriations made prior to June 30.
(b) The liability and related expense shall be recognized within time periods established by the Division of Finance but shall be recognized not later than August 31.
(c) Liabilities and expenses not so recognized may be paid from regular departmental appropriations for the subsequent fiscal year, if these claims do not exceed unexpended and unencumbered balances of appropriations for the years in which the obligation was incurred.
(d) No amounts may be transferred from an item of appropriation of any department, institution, or agency into the Capital Projects Fund or any other fund without the prior express approval of the Legislature.
(4) (a) For purposes of this chapter, claims processed under the authority of Title 26, Chapter 18, Medical Assistance Act:
(i) may not be considered a liability or expense to the state for budgetary purposes unless they are received by the Division of Health Care Financing within the time periods established by the Division of Finance under Subsection (3)(b); and
(ii) are not subject to the requirements of Subsection (3)(c).
(b) The transaction control number recorded on each claim invoice by the division is considered the date of receipt.
Section 1655. Section 63J-1-402, which is renumbered from Section 63-38-8.1 is renumbered and amended to read:
[63-38-8.1
]. 63J-1-402. Nonlapsing authority.(1) As used in this section:
(a) (i) "Agency" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state.
(ii) "Agency" does not include those entities whose unappropriated and unencumbered balances are made nonlapsing by the operation of Subsection [63-38-8] 63J-1-401(2).
(b) "Appropriation balance" means the unexpended and unencumbered balance of a line item appropriation made by the Legislature to an agency that exists at the end of a fiscal year.
(c) "Nonlapsing" means that an agency's appropriation balance is not closed out to the appropriate fund at the end of a fiscal year as required by Section [63-38-8] 63J-1-401.
(d) "One-time project" means a project or program that can be completed with the appropriation balance and includes such items as employee incentive awards and bonuses, purchase of equipment, and one-time training.
(e) "One-time projects list" means:
(i) a prioritized list of one-time projects, upon which an agency would like to spend any appropriation balance; and
(ii) for each project, the maximum amount the agency is estimating for the project.
(f) "Program" means a service provided by an agency to members of the public, other agencies, or to employees of the agency.
(2) Notwithstanding the requirements of Section [63-38-8] 63J-1-401, an agency may, by following the procedures and requirements of this section, retain and expend any appropriation balance.
(3) (a) Each agency that wishes to preserve any part or all of its appropriation balance as nonlapsing shall include a one-time projects list as part of the budget request that it submits to the governor and the Legislature at the annual general session of the Legislature immediately before the end of the fiscal year in which the agency may have an appropriation balance.
(b) An agency may not include a proposed expenditure on its one-time projects list if:
(i) the expenditure creates a new program;
(ii) the expenditure enhances the level of an existing program; or
(iii) the expenditure will require a legislative appropriation in the next fiscal year.
(c) The governor:
(i) may approve some or all of the items from an agency's one-time projects list; and
(ii) shall identify and prioritize any approved one-time projects in the budget that he submits to the Legislature.
(4) The Legislature:
(a) may approve some or all of the specific items from an agency's one-time projects list as authorized expenditures of an agency's appropriation balance;
(b) shall identify any authorized one-time projects in the appropriate line item appropriation; and
(c) may prioritize one-time projects in intent language.
Section 1656. Section 63J-1-403, which is renumbered from Section 63-38-8.2 is renumbered and amended to read:
[63-38-8.2
]. 63J-1-403. Internal service funds -- End of fiscal year -- Unused authority for capital acquisition.(1) An internal service fund agency's authority to acquire capital assets under Subsection [63-38-3.5] 63J-1-306(8)(a) shall lapse if the acquisition of the capital asset does not occur in the fiscal year in which the authorization is included in the appropriations act, unless the Legislature identifies the authority to acquire the capital asset as nonlapsing authority:
(a) for a specific one-time project and a limited period of time in the Legislature's initial appropriation to the agency; or
(b) in a supplemental appropriation in accordance with Subsection (2).
(2) (a) An internal service fund agency's authority to acquire capital assets may be retained as nonlapsing authorization if the internal service fund agency includes a one-time project's list as part of the budget request that it submits to the governor and the Legislature at the annual general session of the Legislature immediately before the end of the fiscal year in which the agency may have unused capital acquisition authority.
(b) The governor:
(i) may approve some or all of the items from an agency's one-time project's list; and
(ii) shall identify and prioritize any approved one-time projects in the budget that he submits to the Legislature.
(c) The Legislature:
(i) may approve some or all of the specific items from an agency's one-time project's list as an approved capital acquisition for an agency's appropriation balance;
(ii) shall identify any authorized one-time projects in the appropriate line item appropriation; and
(iii) may prioritize one-time projects in intent language.
(3) An internal service fund agency shall submit a status report of outstanding nonlapsing authority to acquire capital assets and associated one-time projects to the Governor's Office of Planning and Budget and the Legislative Fiscal Analyst's Office with the proposed budget required by Section [63-38-2] 63J-1-201.
Section 1657. Section 63J-1-404, which is renumbered from Section 63-38-9 is renumbered and amended to read:
[63-38-9
]. 63J-1-404. Revenue types -- Disposition of funds collected or credited by a state agency.(1) (a) The revenues enumerated in this section are established as major revenue types.
(b) The Division of Finance shall:
(i) account for revenues in accordance with generally accepted accounting principles; and
(ii) use the major revenue types in internal accounting.
(c) Each agency shall:
(i) use the major revenue types enumerated in this section to account for revenues;
(ii) deposit revenues and other public funds received by them by following the procedures and requirements of Title 51, Chapter 7, State Money Management Act; and
(iii) expend revenues and public funds as required by this chapter.
(2) The major revenue types are:
(a) free revenue;
(b) restricted revenue;
(c) dedicated credits; and
(d) fixed collections.
(3) (a) Free revenue includes:
(i) collections that are required by law to be deposited in the General Fund, the Education Fund, the Uniform School Fund, or the Transportation Fund;
(ii) collections that are not otherwise designated by law;
(iii) collections that are not externally restricted; and
(iv) collections that are not included in an approved work program.
(b) Each agency shall deposit its free revenues into the appropriate fund.
(c) An agency may expend free revenues up to the amount specifically appropriated by the Legislature.
(d) Any free revenue funds appropriated by the Legislature to an agency that remain unexpended at the end of the fiscal year lapse to the source fund unless the Legislature provides by law that those funds are nonlapsing.
(4) (a) Restricted revenues are collections deposited by law into a separate fund or subfund that are designated for a specific program or purpose.
(b) Each agency shall deposit its restricted revenues into a restricted fund.
(c) The Legislature may appropriate restricted revenues from a restricted fund for the specific purpose or program designated by law.
(d) If the fund equity of a restricted fund is insufficient to provide the funds appropriated from it by the Legislature, the Division of Finance may reduce the appropriation to a level that ensures that the fund equity is not less than zero.
(e) Any restricted revenue funds appropriated by the Legislature to an agency that remain unexpended at the end of the fiscal year lapse to the restricted fund unless the Legislature provides by law that those funds, or the program or line item financed by those funds, are nonlapsing.
(5) (a) Dedicated credits and federal revenues are collections by an agency that are deposited directly into an account for expenditure on a separate line item and program.
(b) An agency may expend dedicated credits for any purpose within the program or line item.
(c) (i) An agency may expend dedicated credits in excess of the amount appropriated as dedicated credits by the Legislature by following the procedures contained in this Subsection (5)(c).
(ii) The agency shall develop a new work program and the justification for the work program and submit it to the Division of Finance and the director of the Governor's Office of Planning and Budget. Except for monies deposited as dedicated credits in the Drug Stamp Tax Fund under Section 59-19-105 or line items covering tuition and federal vocational funds at institutions of higher learning, any expenditure of dedicated credits in excess of amounts appropriated as dedicated credits by the Legislature may not be used to permanently increase personnel within the agency unless approved by the Legislature.
(iii) The Division of Finance and the director of the Governor's Office of Planning and Budget shall review the program and submit their findings and recommendations to the governor.
(iv) The governor may authorize the agency to expend its excess dedicated credits by approving the submitted work program.
(v) The state's fiscal officer shall notify the Legislature by providing notice of the governor's action to the Office of Legislative Fiscal Analyst.
(d) (i) All excess dedicated credits lapse to the appropriate fund at the end of the fiscal year unless the Legislature has designated the entire program or line item that is partially or fully funded from dedicated credits as nonlapsing.
(ii) The Division of Finance shall determine the appropriate fund into which the dedicated credits lapse.
(6) (a) Fixed collections are collections:
(i) fixed by law or by the appropriation act at a specific amount; and
(ii) required by law to be deposited into a separate line item and program.
(b) The Legislature may establish by law the maximum amount of fixed collections that an agency may expend.
(c) If an agency receives less than the maximum amount of expendable fixed collections established by law, the agency's authority to expend is limited to the amount of fixed collections that it receives.
(d) If an agency receives fixed collections greater than the maximum amount of expendable fixed collections established by law, those excess amounts lapse to the General Fund, the Education Fund, the Uniform School Fund, or the Transportation Fund as designated by the director of the Division of Finance at the end of the fiscal year.
(7) (a) Unless otherwise specifically provided by law, when an agency has a program or line item that is funded by more than one major revenue type, the agency shall expend its dedicated credits and fixed collections first.
(b) Unless otherwise specifically provided by law, when programs or line items are funded by more than one major revenue type and include both free revenue and restricted revenue, an agency shall expend those sources based upon a proration of the amounts appropriated from each of those major revenue types.
Section 1658. Section 63J-1-405, which is renumbered from Section 63-38-10 is renumbered and amended to read:
[63-38-10
]. 63J-1-405. Overexpenditure of budget by agency -- Prorating budget income shortfall.(1) In providing for appropriations, the Legislature intends that expenditures of departments, agencies, and institutions of state government be kept within revenues available for such expenditures.
(2) (a) The Legislature also intends that line items of appropriation not be overexpended.
(b) If an agency's line item is overexpended at the close of a fiscal year:
(i) the director of the Division of Finance may make payments from the line item to vendors for goods or services that were received on or before June 30; and
(ii) the director of the Division of Finance shall immediately reduce the agency's line item budget in the current year by the amount of the overexpenditure.
(c) Each agency with an overexpended line item shall produce a written report explaining the reasons for the overexpenditure and shall present the report to the Board of Examiners as required by Section [63-6-10] 63G-9-301.
(3) If the total of all revenues accruing in any given fiscal year to the General Fund, or any other major fund type, collections, or dedicated credits, from which appropriations are made, are not sufficient to cover the appropriations made for that period, the governor shall reduce the budgetary allotments and transfer of funds by the amount of the deficiency.
(4) (a) No department may receive any advance allotment, or allotments in excess of regular monthly allotments, that cannot be covered by anticipated revenue within the work program of the fiscal year, unless the governor allocates moneys from his emergency appropriations.
(b) All allocations made from the governor's emergency appropriations shall be reported to the budget subcommittee of the Legislative Management Committee by notifying the Office of the Legislative Fiscal Analyst at least 15 days before the effective date of the allocation.
(c) Emergency appropriations shall be allocated only to support activities having existing legislative approval and appropriation, and may not be allocated to any activity or function rejected directly or indirectly by the Legislature.
Section 1659. Section 63J-1-406, which is renumbered from Section 63-38-11 is renumbered and amended to read:
[63-38-11
]. 63J-1-406. Director of finance to exercise accounting control -- Work programs -- Allotments and expenditures.(1) The director of finance shall exercise accounting control over all state departments, institutions, and agencies other than the Legislature and legislative committees.
(2) (a) The director shall require the head of each department to submit, by May 15 of each year, a work program for the next fiscal year.
(b) The director may require any department to submit a work program for any other period.
(3) The work program shall include appropriations and all other funds from any source made available to the department for its operation and maintenance for the period and program authorized by the appropriation act.
(4) The director of finance shall, upon request from the governor, revise, alter, decrease, or change work programs.
(5) Notwithstanding the requirements of [Title 63, Chapter 38a] Title 63J, Chapter 2, Revenue Procedures and Control Act, the aggregate of the work program changes may not exceed the total appropriations or other funds from any source that are available to the department line item for the fiscal year in question.
(6) The director of finance shall transmit a copy of the changes when approved by the governor to the head of the department concerned and also a copy to the legislative analyst.
(7) Upon request, review, and approval by the governor, the director of finance shall permit all expenditures to be made from the appropriations or other funds from any source on the basis of those work programs.
(8) (a) Except as provided by Subsection (c), the director shall, through statistical sampling methods or other means, examine and approve or disapprove all requisitions and requests for proposed expenditures of the departments.
(b) No requisitions of any of the departments shall be allowed nor shall any obligation be created without the approval and the certification of the director.
(c) Notwithstanding the requirements of Subsection (a), the director need only certify the availability of funds when the requisitions or proposed expenditures are for the judicial branch or to pay the salaries or compensation of officers fixed by law.
Section 1660. Section 63J-1-407, which is renumbered from Section 63-38-11.5 is renumbered and amended to read:
[63-38-11.5
]. 63J-1-407. Reduction in federal funds -- Agencies to reduce budgets.(1) In any fiscal year in which federal grants to be received by state agencies, departments, divisions, or institutions are reduced below the level estimated in the appropriations acts for that year, the programs supported by those grants must be reduced commensurate with the amount of the federal reduction unless the Legislature appropriates state funds to offset the loss in federal funding.
(2) This program modification shall be reported to the Legislature through the Executive Appropriations Committee and the Office of the Legislative Fiscal Analyst.
Section 1661. Section 63J-1-408, which is renumbered from Section 63-38-12 is renumbered and amended to read:
[63-38-12
]. 63J-1-408. Uniform School Fund -- Appropriations.Appropriations made from the General Fund to the Uniform School Fund to assist in financing the state's portion of the minimum school program as provided by law, shall be conditioned upon available revenue.
If revenues to the General Fund are not sufficient to permit transfers to the Uniform School Fund as provided by appropriation, the state fiscal officers, with the approval of the governor, shall withhold such transfers during the fiscal period, as in their judgment the available revenues justify, after other appropriations made by law have been provided for, and after any modifications in department and agency work program and allotments have been made; and provided further, that transfers to the Uniform School Fund shall be made at such times as required to equalize the property levy for each fiscal year.
Section 1662. Section 63J-1-409, which is renumbered from Section 63-38-13 is renumbered and amended to read:
[63-38-13
]. 63J-1-409. Conditions on appropriations binding.Any and all conditions as may be attached to items of appropriation made by the appropriations act not inconsistent with law shall be binding upon the recipient of any such appropriation.
Section 1663. Section 63J-1-501, which is renumbered from Section 63-38-14 is renumbered and amended to read:
Part 5. Budget Review
[63-38-14]. 63J-1-501. Request for in-depth budget review of agency or program -- Form of budget submitted.
The Legislative Management Committee, upon recommendation of an appropriations subcommittee of the Legislature, may request of the governor for any designated fiscal year, an in-depth budget review of any state department, agency, institution or program. When responding to a request for an in-depth budget review, the governor shall submit for the department, agency, institution or program for the fiscal year indicated a budget prepared in accordance with Section [63-38-15] 63J-1-502 and using the format and procedures developed by the director of the Governor's Office of Planning and Budget in cooperation with the legislative fiscal analyst. This format shall be constructed to assist the analyst and the Legislature in reviewing the justification for selected departments, agencies, and institutions or any of their programs and activities.
Section 1664. Section 63J-1-502, which is renumbered from Section 63-38-15 is renumbered and amended to read:
[63-38-15
]. 63J-1-502. Purpose of review -- Information submitted.The purpose of an in-depth budget review is to determine whether each department, agency, institution or program warrants continuation of its current level of expenditure or at a different level, or if it should be terminated. The budget for a state department, agency, institution or program subject to an in-depth budget review shall be a detailed plan in which programs and activities within programs are organized and budgeted after analysis and evaluation are made of all proposed expenditures. In the presentation of the budget of a department, agency, institution or program subject to in-depth budget review, the governor shall include the following:
(1) a statement of agency and program objectives, effectiveness measures, and program size indicators;
(2) alternative funding levels for each program with effectiveness measures and program size indicators detailed for each alternative funding level. Alternative funding levels shall be determined as percentages of the appropriations level authorized by the Legislature for the current fiscal year. The percentages shall be determined for each in-depth budget review by the director of the Governor's Office of Planning and Budget in consultation with the legislative fiscal analyst;
(3) a priority ranking of all programs and activities in successively increasing levels of performance and funding;
(4) other budgetary information requested by the legislative fiscal analyst; and
(5) a statement containing further recommendations of the governor as appropriate.
Section 1665. Section 63J-1-503, which is renumbered from Section 63-38-16 is renumbered and amended to read:
[63-38-16
]. 63J-1-503. Selection of activities for review -- Coordination with audits.The legislative auditor general shall consult with the Legislative Management Committee to determine the programs or activities to audit which will best assist the executive branch in preparing the in-depth budget and the Legislature in reviewing the in-depth budget for funding. The scope of the audits shall be determined by the legislative auditor general based upon need, manpower considerations and other audit priorities. It is the intent of the Legislature that the legislative fiscal analyst and the legislative auditor general coordinate the in-depth budget reviews insofar as possible with the audits performed by the legislative auditor general.
Section 1666. Section 63J-2-101, which is renumbered from Section 63-38a-101 is renumbered and amended to read:
CHAPTER 2. REVENUE PROCEDURES AND CONTROL ACT
Part 1. General Provisions
[63-38a-101]. 63J-2-101. Title.
This chapter [shall be] is known as the "Revenue Procedures and Control Act."
Section 1667. Section 63J-2-102, which is renumbered from Section 63-38a-102 is renumbered and amended to read:
[63-38a-102
]. 63J-2-102. Definitions.As used in this chapter:
(1) (a) "Agency" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state.
(b) "Agency" does not include the legislative branch, the board of regents, the Utah Higher Education Assistance Authority, the board of trustees of each higher education institution, each higher education institution and its associated branches, centers, divisions, institutes, foundations, hospitals, colleges, schools, or departments, a public education entity, or an independent agency.
(2) (a) "Dedicated credits revenues" means revenues from collections by an agency that are deposited directly into an account for expenditure on a separate line item and program.
(b) "Dedicated credits" does not mean:
(i) federal revenues and the related pass through or the related state match paid by one agency to another;
(ii) revenues that are not deposited in governmental funds;
(iii) revenues from any contracts; and
(iv) revenues received by the Attorney General's Office from billings for professional services.
(3) "Fees" means revenue collected by an agency for performing a service or providing a function that the agency deposits or accounts for as dedicated credits or fixed collections.
(4) (a) "Fixed collections revenues" means revenue from collections:
(i) fixed by law or by the appropriation act at a specific amount; and
(ii) required by law to be deposited into a separate line item and program.
(b) "Fixed collections" does not mean:
(i) federal revenues and the related pass through or the related state match paid by one agency to another;
(ii) revenues that are not deposited in governmental funds;
(iii) revenues from any contracts; and
(iv) revenues received by the Attorney General's Office from billings for professional services.
(5) (a) "Governmental fund" means funds used to account for the acquisition, use, and balances of expendable financial resources and related liabilities using a measurement focus that emphasizes the flow of financial resources.
(b) "Governmental fund" does not include internal service funds, enterprise funds, capital projects funds, debt service funds, or trust and agency funds as established in Section 51-5-4.
(6) "Independent agency" means the Utah State Retirement Office, the Utah Housing Corporation, and the Workers' Compensation Fund.
(7) "Program" means the function or service provided by an agency for which the agency collects fees.
(8) "Revenue types" means the categories established by the Division of Finance under the authority of this chapter that classify revenue according to the purpose for which it is collected.
Section 1668. Section 63J-2-201, which is renumbered from Section 63-38a-103 is renumbered and amended to read:
Part 2. Procedures
[63-38a-103]. 63J-2-201. Accounting for fee revenues.
(1) The Division of Finance shall:
(a) establish revenue types;
(b) develop a computerized master file of revenue types containing, for each revenue type:
(i) the definition of each revenue type;
(ii) if available, a historical record of the amount collected for the revenue type for each of the five years;
(iii) the agency that collected the revenue;
(iv) the program, organization, and fund into which the revenue was originally recorded each year;
(v) a general description of the function where the largest portion of the revenue was spent each year;
(vi) the specific legal authority that authorizes the agency to collect the revenue;
(vii) the rates charged to the individuals or entities that pay the revenue;
(viii) the general methodology used to determine the rate charged to individuals or entities that pay the revenue;
(ix) for dedicated credits revenues and fixed collections revenues, the revenue estimate used by the agency to prepare their budget;
(x) the amount appropriated as dedicated credits revenues and fixed collections revenues in the annual appropriation act; and
(xi) for revenues other than dedicated credits revenues and fixed collections revenues, an estimate of the amount of revenue, if available or reasonably calculable; and
(c) make the computerized file available to the Budget Office and the Office of Legislative Fiscal Analyst upon request.
(2) Each agency shall provide the Division of Finance with the information required by this section.
Section 1669. Section 63J-2-202, which is renumbered from Section 63-38a-104 is renumbered and amended to read:
[63-38a-104
]. 63J-2-202. Disposition of revenues.(1) (a) Each agency shall include in its annual budget request estimates of dedicated credits revenues and fixed collections revenues that are identified by, collected for, or set by the agency.
(b) If the Legislature or the Division of Finance establishes a new revenue type by law, the agency shall include that new revenue type in its budget request for the next fiscal year.
(c) (i) Except as provided in Subsection (c)(ii), if any agency fails to include the estimates of a revenue type in its annual budget request, the Division of Finance shall deposit the monies collected in that revenue type into the General Fund or other appropriate fund as free or restricted revenue.
(ii) The Division of Finance may not deposit the monies collected from a revenue type not included in an agency's annual budget request into the General Fund or other appropriate fund if the agency did not include the estimates of the revenue type in its annual budget request because the Legislature had not yet established or authorized the new revenue type by law.
(2) (a) (i) Except as provided in Subsection (2)(b), each agency that receives dedicated credits and fixed collections revenues greater than the amount appropriated to them by the Legislature in the annual appropriations act may expend the excess up to 25% of the amount appropriated if the expenditure is authorized by an amended work program approved as provided in Section [63-38-11] 63J-1-406. However, except for monies deposited as dedicated credits in the Illegal Drug Stamp Tax Fund under Section 59-19-105 or line items covering tuition and federal vocational funds at institutions of higher learning, any expenditure of dedicated credits in excess of amounts appropriated by the Legislature may not be used to permanently increase personnel within the agency unless approved by the Legislature.
(ii) The Division of Finance shall deposit the balance of that excess into the General Fund or other appropriate fund as free or restricted revenue.
(b) Notwithstanding the requirements of Subsection (2)(a), when an agency's dedicated credits and fixed collections revenues represent over 90% of the budget of the program for which they are collected, the agency may expend 100% of the excess of the amount appropriated if the expenditure is authorized by an amended work program approved as provided in Section [63-38-11] 63J-1-406.
Section 1670. Section 63J-3-101, which is renumbered from Section 63-38c-101 is renumbered and amended to read:
CHAPTER 3. STATE APPROPRIATIONS AND TAX LIMITATION ACT
Part 1. General Provisions
[63-38c-101]. 63J-3-101. Title.
This chapter is known as the "State Appropriations and Tax Limitation Act."
Section 1671. Section 63J-3-102, which is renumbered from Section 63-38c-102 is renumbered and amended to read:
[63-38c-102
]. 63J-3-102. Purpose of chapter -- Limitations on state mandated property tax, state appropriations, and state debt.(1) (a) It is the purpose of this chapter to:
(i) place a limitation on the state mandated property tax rate under Title 53A, Chapter 17a, Minimum School Program Act;
(ii) place limitations on state government appropriations based upon the combined changes in population and inflation; and
(iii) place a limitation on the state's outstanding general obligation debt.
(b) The limitations imposed by this chapter are in addition to limitations on tax levies, rates, and revenues otherwise provided for by law.
(2) (a) This chapter may not be construed as requiring the state to collect the full amount of tax revenues permitted to be appropriated by this chapter.
(b) This chapter's purpose is to provide a ceiling, not a floor, limitation on the appropriations of state government.
(3) The recommendations and budget analysis prepared by the Governor's Office of Planning and Budget and the Office of the Legislative Fiscal Analyst, as required by Title 36, Chapter 12, Legislative Organization, shall be in strict compliance with the limitations imposed under this chapter.
Section 1672. Section 63J-3-103, which is renumbered from Section 63-38c-103 is renumbered and amended to read:
[63-38c-103
]. 63J-3-103. Definitions.As used in this chapter:
(1) (a) "Appropriations" means actual unrestricted capital and operating appropriations from unrestricted General Fund sources and from non-Uniform School Fund income tax revenues as presented in the governor's executive budgets.
(b) Appropriations includes appropriations that are contingent upon available surpluses in the General Fund.
(c) "Appropriations" does not mean:
(i) debt service expenditures;
(ii) emergency expenditures;
(iii) expenditures from all other fund or subfund sources presented in the executive budgets;
(iv) transfers or appropriations from the Education Fund to the Uniform School Fund;
(v) transfers into, or appropriations made to, the General Fund Budget Reserve Account established in Section [63-38-2.5] 63J-1-202;
(vi) transfers into, or appropriations made to, the Education Budget Reserve Account established in Section [63-38-2.6] 63J-1-203;
(vii) transfers in accordance with Section [63-38-2.7] 63J-1-204 into, or appropriations made to the State Disaster Recovery Restricted Account created in Section 53-2-403;
(viii) monies appropriated to fund the total one-time project costs for the construction of capital developments as defined in Section 63A-5-104;
(ix) transfers or deposits into or appropriations made to the Centennial Highway Fund Restricted Account created by Section 72-2-118;
(x) transfers or deposits into or appropriations made to the Transportation Investment Fund of 2005 created by Section 72-2-124; or
(xi) transfers or deposits into or appropriations made to:
(A) the Department of Transportation from any source; or
(B) any transportation-related account or fund from any source.
(2) "Base year real per capita appropriations" means the result obtained for the state by dividing the fiscal year 1985 actual appropriations of the state less debt monies by:
(a) the state's July 1, 1983 population; and
(b) the fiscal year 1983 inflation index divided by 100.
(3) "Calendar year" means the time period beginning on January 1 of any given year and ending on December 31 of the same year.
(4) "Fiscal emergency" means an extraordinary occurrence requiring immediate expenditures and includes the settlement under Chapter 4, Laws of Utah 1988, Fourth Special Session.
(5) "Fiscal year" means the time period beginning on July 1 of any given year and ending on June 30 of the subsequent year.
(6) "Fiscal year 1985 actual base year appropriations" means fiscal year 1985 actual capital and operations appropriations from General Fund and non-Uniform School Fund income tax revenue sources, less debt monies.
(7) "Inflation index" means the change in the general price level of goods and services as measured by the Gross National Product Implicit Price Deflator of the Bureau of Economic Analysis, U.S. Department of Commerce calculated as provided in Section [63-38c-202] 63J-3-202.
(8) (a) "Maximum allowable appropriations limit" means the appropriations that could be, or could have been, spent in any given year under the limitations of this chapter.
(b) "Maximum allowable appropriations limit" does not mean actual appropriations spent or actual expenditures.
(9) "Most recent fiscal year's inflation index" means the fiscal year inflation index two fiscal years previous to the fiscal year for which the maximum allowable inflation and population appropriations limit is being computed under this chapter.
(10) "Most recent fiscal year's population" means the fiscal year population two fiscal years previous to the fiscal year for which the maximum allowable inflation and population appropriations limit is being computed under this chapter.
(11) "Population" means the number of residents of the state as of July 1 of each year as calculated by the Governor's Office of Planning and Budget according to the procedures and requirements of Section [63-38c-202] 63J-3-202.
(12) "Revenues" means the revenues of the state from every tax, penalty, receipt, and other monetary exaction and interest connected with it that are recorded as unrestricted revenue of the General Fund and from non-Uniform School Fund income tax revenues, except as specifically exempted by this chapter.
(13) "Security" means any bond, note, warrant, or other evidence of indebtedness, whether or not the bond, note, warrant, or other evidence of indebtedness is or constitutes an "indebtedness" within the meaning of any provision of the constitution or laws of this state.
Section 1673. Section 63J-3-201, which is renumbered from Section 63-38c-201 is renumbered and amended to read:
Part 2. Appropriations Limit
[63-38c-201]. 63J-3-201. Appropriations limit -- Formula.
(1) There is established a state appropriations limit for each fiscal year beginning after June 30, 1988.
(2) For each of these fiscal years, the annual legislative appropriations for this state, its agencies, departments, and institutions may not exceed that sum determined by applying the formula B* P* (I/100) in which:
(a) "B" equals the base year real per capita appropriations for the state, its agencies, departments, and institutions;
(b) "P" equals the most recent fiscal year's population; and
(c) "I" equals the most recent fiscal year's inflation index adjusted to reflect fiscal year 1989 as having an index value of 100.
(3) The revenues specified in Section [63-38c-205] 63J-3-205 are not subject to the limitation in this section.
Section 1674. Section 63J-3-202, which is renumbered from Section 63-38c-202 is renumbered and amended to read:
[63-38c-202
]. 63J-3-202. Computing formula elements.(1) For purposes of calculating fiscal year inflation indexes for the previous fiscal year, the Governor's Office of Planning and Budget shall use:
(a) the actual quarterly data released by the U.S. Department of Commerce as of January 31 of each year; and
(b) the most recent U.S. Bureau of Census population estimates as of January 31 of each year.
(2) (a) For purposes of computing the inflation index, the Governor's Office of Planning and Budget shall:
(i) assign the bureau's 1982 calendar year inflation index value of 100 to fiscal year 1989 for purposes of computing fiscal year index values;
(ii) compute all subsequent fiscal year inflation indexes after having assigned the fiscal year 1989 inflation index a value of 100; and
(iii) use the quarterly index values published by the Bureau of Economic Analysis, U.S. Department of Commerce, to compute fiscal year index values.
(b) If the bureau changes its calendar base year, appropriate adjustments are to be made in this chapter to accommodate those changes.
(3) (a) For purposes of computing the most recent fiscal year’s population, the Governor's Office of Planning and Budget shall convert the April 1 decennial census estimate to a July 1 estimate, unless otherwise estimated by the Bureau of Census.
(b) If the bureau changes the state's July 1, 1983 base year population after it conducts the 1990 Census, appropriate adjustments shall be made in this chapter to accommodate those changes.
Section 1675. Section 63J-3-203, which is renumbered from Section 63-38c-203 is renumbered and amended to read:
[63-38c-203
]. 63J-3-203. Program and service adjustments to the limitation -- Funding level.(1) If the state transfers partial or total responsibility of a program or service to another unit of government, the appropriations limitations shall be decreased by the amount of the transfer.
(2) If the state accepts partial or total responsibility for a program or service from another unit of government, the appropriations limit shall be increased by the amount of the transfer.
(3) If funding exempted under this chapter for a program or service administered by the state is reduced or eliminated and the Legislature elects to fund the program or service with tax revenue, the appropriations limitations shall be increased by the amount the Legislature elects to fund.
(4) If the state transfers the funding source of a program or service from taxes to user charges or other exempted revenue sources specified in this chapter, the maximum allowable appropriations limitations shall be decreased by the amount of the transfer.
(5) If the Legislature transfers the funding source of a program or service from user charges or other exempted revenue sources as specified in this chapter to tax revenues, appropriations limitations shall be increased by the amount of the transfer.
(6) If the state transfers revenues from sources exempt under this chapter to funds containing revenues from nonexempt sources, the revenues transferred shall be part of and subject to the appropriations limits of this chapter.
Section 1676. Section 63J-3-204, which is renumbered from Section 63-38c-204 is renumbered and amended to read:
[63-38c-204
]. 63J-3-204. Exceptions to limitation -- Fiscal emergency -- Requirements -- Limits modified or exceeded by vote of the people.(1) (a) The limits as provided in this chapter may be exceeded if a fiscal emergency is declared.
(b) A fiscal emergency for the state shall be declared by the governor and confirmed by more than two-thirds of both houses of the Legislature.
(2) (a) Funding for fiscal emergencies may not be included in the appropriations base for computing the maximum allowable appropriations in subsequent years.
(b) Fiscal emergency appropriations shall remain separate from appropriations subject to limits imposed by this chapter and shall be assigned expiration dates.
(3) Any limit in this chapter may be exceeded or modified by a majority vote of the people in a statewide election.
Section 1677. Section 63J-3-205, which is renumbered from Section 63-38c-205 is renumbered and amended to read:
[63-38c-205
]. 63J-3-205. Monies excluded from the limitation.Monies from the following sources are excluded from the revenues appropriated and used in determining a limitation:
(1) monies received from the government of the United States including federal mineral lease payments;
(2) monies received by the state from another unit of government, except the proceeds of taxes, fees, or penalties imposed by the state and collected by the other unit of government;
(3) monies derived from the issuance of, or to pay interest, principal, or redemption premiums on, any security;
(4) monies received from the sale of fixed assets or gains on fixed asset transfers;
(5) the proceeds of contracts, grants, gifts, donations, and bequests made to the state for a purpose specified by the contractor or donor;
(6) user charges derived by the state from the sale of a product or service pledged or legally available to repay any security or for which the quantity of the product or level of service provided to a user is at the discretion of the user; and
(7) monies raised to meet fiscal emergencies.
Section 1678. Section 63J-3-301, which is renumbered from Section 63-38c-301 is renumbered and amended to read:
Part 3. State Auditor's Responsibilities
[63-38c-301]. 63J-3-301. State auditor's responsibilities with respect to the limitation -- Correction of deficiencies.
The state auditor shall notify the state through the appropriate officer or officers of necessary corrective action if upon audit or examination of the results of an independent audit or a budget document of the state, the state auditor determines that:
(1) funds have been improperly accounted or budgeted for in order to avoid the limitations imposed by this chapter;
(2) funds have been improperly exempted from the limitations as provided in this chapter;
(3) general government functions have been improperly financed by user or service charges; or
(4) the limitations imposed by this chapter have been exceeded.
Section 1679. Section 63J-3-401, which is renumbered from Section 63-38c-401 is renumbered and amended to read:
Part 4. Property Tax Limitation
[63-38c-401]. 63J-3-401. State mandated property tax limitation -- Vote requirement needed to exceed limitation.
The state mandated property tax rate in Title 53A, Chapter 17a, Minimum School Program Act, as of July 1, 1989, may not be increased without more than a two-thirds vote of both houses of the Legislature.
Section 1680. Section 63J-3-402, which is renumbered from Section 63-38c-402 is renumbered and amended to read:
[63-38c-402
]. 63J-3-402. Debt limitation -- Vote requirement needed to exceed limitation -- Exceptions.(1) (a) Except as provided in Subsection (1)(b), the outstanding general obligation debt of the state may not exceed 45% of the maximum allowable appropriations limit unless approved by more than a two-thirds vote of both houses of the Legislature.
(b) Notwithstanding the limitation contained in Subsection (1)(a), debt issued under the authority of the following parts or sections is not subject to the debt limitation established by this section:
(i) Title 63B, Chapter 6, Part 2, 1997 Highway General Obligation Bond Authorization;
(ii) Title 63B, Chapter 6, Part 3, 1997 Highway Bond Anticipation Note Authorization;
(iii) Title 63B, Chapter 7, Part 2, 1998 Highway General Obligation Bond Authorization;
(iv) Title 63B, Chapter 7, Part 3, 1998 Highway Bond Anticipation Note Authorization;
(v) Title 63B, Chapter 8, Part 2, 1999 Highway General Obligation Bond Authorization;
(vi) Title 63B, Chapter 8, Part 3, 1999 Highway Bond Anticipation Note Authorization;
(vii) Title 63B, Chapter 9, Part 2, 2000 Highway General Obligation Bond;
(viii) Title 63B, Chapter 10, Part 1, 2001 Highway General Obligation Bond;
(ix) Title 63B, Chapter 10, Part 2, 2001 Highway General Obligation Bond Anticipation Notes;
(x) Title 63B, Chapter 11, Part 5, 2002 Highway General Obligation Bond for Salt Lake County;
(xi) Title 63B, Chapter 11, Part 6, 2002 Highway General Obligation Bond Anticipation Notes for Salt Lake County Authorization;
(xii) Section 63B-13-102;
(xiii) Section 63B-16-101; and
(xiv) Section 63B-16-102.
(2) This section does not apply if contractual rights will be impaired.
Section 1681. Section 63J-4-101, which is renumbered from Section 63-38d-101 is renumbered and amended to read:
CHAPTER 4. GOVERNOR'S OFFICE OF PLANNING AND BUDGET
Part 1. General Provisions
[63-38d-101]. 63J-4-101. Title.
This chapter is known as the "Governor's Office of Planning and Budget."
Section 1682. Section 63J-4-102, which is renumbered from Section 63-38d-102 is renumbered and amended to read:
[63-38d-102
]. 63J-4-102. Definitions.As used in this chapter:
(1) "Committee" means the Resource Development Coordinating Committee created by this chapter.
(2) "Director" means the chief administrative officer of the Governor's Office of Planning and Budget appointed as provided in this chapter.
(3) "Office" means the Governor's Office of Planning and Budget created by this chapter.
(4) "Political subdivision" means a county, municipality, local district, special service district, school district, interlocal cooperation agreement entity, or any administrative subunit of them.
(5) "State planning coordinator" means the person appointed as planning coordinator as provided in this chapter.
Section 1683. Section 63J-4-201, which is renumbered from Section 63-38d-201 is renumbered and amended to read:
Part 2. Creation - Appointments
[63-38d-201]. 63J-4-201. Creation.
There is created within the governor's office the Governor's Office of Planning and Budget to be administered by a director.
Section 1684. Section 63J-4-202, which is renumbered from Section 63-38d-202 is renumbered and amended to read:
[63-38d-202
]. 63J-4-202. Appointment of director, state planning coordinator.(1) (a) The governor shall appoint, to serve at the governor's pleasure:
(i) a director of the Governor's Office of Planning and Budget; and
(ii) a state planning coordinator.
(b) The state planning coordinator is considered part of the office for purposes of administration.
(2) The governor shall establish the director's salary within the salary range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
Section 1685. Section 63J-4-301, which is renumbered from Section 63-38d-301 is renumbered and amended to read:
Part 3. Budget Duties
[63-38d-301]. 63J-4-301. Budget duties of the director and office.
(1) The director and the office shall:
(a) comply with the procedures and requirements of [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act;
(b) under the direct supervision of the governor, assist the governor in the preparation of the governor's budget recommendations;
(c) advise the governor with regard to approval or revision of agency work programs as specified in Section [63-38-11] 63J-1-406; and
(d) perform other duties and responsibilities as assigned by the governor.
(2) (a) The director of the Governor's Office of Planning and Budget or the director's designee is the Federal Assistance Management Officer.
(b) In acting as the Federal Assistance Management Officer, the director or designee shall:
(i) study the administration and effect of federal assistance programs in the state and advise the governor and the Legislature, through the Office of Legislative Fiscal Analyst and the Executive Appropriations Committee, of alternative recommended methods and procedures for the administration of these programs;
(ii) assist in the coordination of federal assistance programs that involve or are administered by more than one state agency; and
(iii) analyze and advise on applications for new federal assistance programs submitted to the governor for approval as required by Chapter 38e, Federal Funds Procedures.
Section 1686. Section 63J-4-401, which is renumbered from Section 63-38d-401 is renumbered and amended to read:
Part 4. Planning
[63-38d-401]. 63J-4-401. Planning duties of the planning coordinator and office.
(1) The state planning coordinator shall:
(a) act as the governor's adviser on state, regional, metropolitan, and local governmental planning matters relating to public improvements and land use;
(b) counsel with the authorized representatives of the Department of Transportation, the State Building Board, the Department of Health, the Department of Workforce Services, the Labor Commission, the Department of Natural Resources, the School and Institutional Trust Lands Administration, and other proper persons concerning all state planning matters;
(c) when designated to do so by the governor, receive funds made available to Utah by the federal government;
(d) receive and review plans of the various state agencies and political subdivisions relating to public improvements and programs;
(e) when conflicts occur between the plans and proposals of state agencies, prepare specific recommendations for the resolution of the conflicts and submit the recommendations to the governor for a decision resolving the conflict;
(f) when conflicts occur between the plans and proposals of a state agency and a political subdivision or between two or more political subdivisions, advise these entities of the conflict and make specific recommendations for the resolution of the conflict;
(g) act as the governor's planning agent in planning public improvements and land use and, in this capacity, undertake special studies and investigations;
(h) provide information and cooperate with the Legislature or any of its committees in conducting planning studies;
(i) cooperate and exchange information with federal agencies and local, metropolitan, or regional agencies as necessary to assist with federal, state, regional, metropolitan, and local programs; and
(j) make recommendations to the governor that the planning coordinator considers advisable for the proper development and coordination of plans for state government and political subdivisions.
(2) The state planning coordinator may:
(a) perform regional and state planning and assist state government planning agencies in performing state planning;
(b) provide planning assistance to Indian tribes regarding planning for Indian reservations; and
(c) assist city, county, metropolitan, and regional planning agencies in performing local, metropolitan, and regional planning, provided that the state planning coordinator and his agents and designees recognize and promote the plans, policies, programs, processes, and desired outcomes of each planning agency whenever possible.
(3) When preparing or assisting in the preparation of plans, policies, programs, or processes related to the management or use of federal lands or natural resources on federal lands in Utah, the state planning coordinator shall:
(a) incorporate the plans, policies, programs, processes, and desired outcomes of the counties where the federal lands or natural resources are located, to the maximum extent consistent with state and federal law, provided that this requirement shall not be interpreted to infringe upon the authority of the governor;
(b) identify inconsistencies or conflicts between the plans, policies, programs, processes, and desired outcomes prepared under Subsection (3)(a) and the plans, programs, processes, and desired outcomes of local government as early in the preparation process as possible, and seek resolution of the inconsistencies through meetings or other conflict resolution mechanisms involving the necessary and immediate parties to the inconsistency or conflict;
(c) present to the governor the nature and scope of any inconsistency or other conflict that is not resolved under the procedures in Subsection (3)(b) for the governor's decision about the position of the state concerning the inconsistency or conflict;
(d) develop, research, and use factual information, legal analysis, and statements of desired future condition for the state, or subregion of the state, as necessary to support the plans, policies, programs, processes, and desired outcomes of the state and the counties where the federal lands or natural resources are located;
(e) establish and coordinate agreements between the state and federal land management agencies, federal natural resource management agencies, and federal natural resource regulatory agencies to facilitate state and local participation in the development, revision, and implementation of land use plans, guidelines, regulations, other instructional memoranda, or similar documents proposed or promulgated for lands and natural resources administered by federal agencies; and
(f) work in conjunction with political subdivisions to establish agreements with federal land management agencies, federal natural resource management agencies, and federal natural resource regulatory agencies to provide a process for state and local participation in the preparation of, or coordinated state and local response to, environmental impact analysis documents and similar documents prepared pursuant to law by state or federal agencies.
(4) The state planning coordinator shall comply with the requirements of Subsection 63C-4-102(7) before submitting any comments on a draft environmental impact statement or on an environmental assessment for a proposed land management plan.
(5) The state planning coordinator shall cooperate with and work in conjunction with appropriate state agencies and political subdivisions to develop policies, plans, programs, processes, and desired outcomes authorized by this section by coordinating the development of positions:
(a) through the Resource Development Coordinating Committee;
(b) in conjunction with local government officials concerning general local government plans;
(c) by soliciting public comment through the Resource Development Coordinating Committee; and
(d) by working with the Public Lands Policy Coordinating Office.
(6) The state planning coordinator shall recognize and promote the following principles when preparing any policies, plans, programs, processes, or desired outcomes relating to federal lands and natural resources on federal lands pursuant to this section:
(a) (i) the citizens of the state are best served by applying multiple-use and sustained-yield principles in public land use planning and management; and
(ii) multiple-use and sustained-yield management means that federal agencies should develop and implement management plans and make other resource-use decisions that:
(A) achieve and maintain in perpetuity a high-level annual or regular periodic output of mineral and various renewable resources from public lands;
(B) support valid existing transportation, mineral, and grazing privileges at the highest reasonably sustainable levels;
(C) support the specific plans, programs, processes, and policies of state agencies and local governments;
(D) are designed to produce and provide the desired vegetation for the watersheds, timber, food, fiber, livestock forage, and wildlife forage, and minerals that are necessary to meet present needs and future economic growth and community expansion without permanent impairment of the productivity of the land;
(E) meet the recreational needs and the personal and business-related transportation needs of the citizens of the state by providing access throughout the state;
(F) meet the recreational needs of the citizens of the state;
(G) meet the needs of wildlife;
(H) provide for the preservation of cultural resources, both historical and archaeological;
(I) meet the needs of economic development;
(J) meet the needs of community development; and
(K) provide for the protection of water rights;
(b) managing public lands for "wilderness characteristics" circumvents the statutory wilderness process and is inconsistent with the multiple-use and sustained-yield management standard that applies to all Bureau of Land Management and U.S. Forest Service lands that are not wilderness areas or wilderness study areas;
(c) all waters of the state are:
(i) owned exclusively by the state in trust for its citizens;
(ii) are subject to appropriation for beneficial use; and
(iii) are essential to the future prosperity of the state and the quality of life within the state;
(d) the state has the right to develop and use its entitlement to interstate rivers;
(e) all water rights desired by the federal government must be obtained through the state water appropriation system;
(f) land management and resource-use decisions which affect federal lands should give priority to and support the purposes of the compact between the state and the United States related to school and institutional trust lands;
(g) development of the solid, fluid, and gaseous mineral resources of the state is an important part of the economy of the state, and of local regions within the state;
(h) the state should foster and support industries that take advantage of the state's outstanding opportunities for outdoor recreation;
(i) wildlife constitutes an important resource and provides recreational and economic opportunities for the state's citizens;
(j) proper stewardship of the land and natural resources is necessary to ensure the health of the watersheds, timber, forage, and wildlife resources to provide for a continuous supply of resources for the people of the state and the people of the local communities who depend on these resources for a sustainable economy;
(k) forests, rangelands, timber, and other vegetative resources:
(i) provide forage for livestock;
(ii) provide forage and habitat for wildlife;
(iii) provide resources for the state's timber and logging industries;
(iv) contribute to the state's economic stability and growth; and
(v) are important for a wide variety of recreational pursuits;
(l) management programs and initiatives that improve watersheds, forests, and increase forage for the mutual benefit of wildlife species and livestock, logging, and other agricultural industries by utilizing proven techniques and tools are vital to the state's economy and the quality of life in Utah; and
(m) (i) land management plans, programs, and initiatives should provide that the amount of domestic livestock forage, expressed in animal unit months, for permitted, active use as well as the wildlife forage included in that amount, be no less than the maximum number of animal unit months sustainable by range conditions in grazing allotments and districts, based on an on-the-ground and scientific analysis;
(ii) the state opposes the relinquishment or retirement of grazing animal unit months in favor of conservation, wildlife, and other uses;
(iii) (A) the state favors the best management practices that are jointly sponsored by cattlemen's, sportsmen's, and wildlife management groups such as chaining, logging, seeding, burning, and other direct soil and vegetation prescriptions that are demonstrated to restore forest and rangeland health, increase forage, and improve watersheds in grazing districts and allotments for the mutual benefit of domestic livestock and wildlife;
(B) when practices described in Subsection (6)(m)(iii)(A) increase a grazing allotment's forage beyond the total permitted forage use that was allocated to that allotment in the last federal land use plan or allotment management plan still in existence as of January 1, 2005, a reasonable and fair portion of the increase in forage beyond the previously allocated total permitted use should be allocated to wildlife as recommended by a joint, evenly balanced committee of livestock and wildlife representatives that is appointed and constituted by the governor for that purpose;
(C) the state favors quickly and effectively adjusting wildlife population goals and population census numbers in response to variations in the amount of available forage caused by drought or other climatic adjustments, and state agencies responsible for managing wildlife population goals and population census numbers will give due regard to both the needs of the livestock industry and the need to prevent the decline of species to a point where listing under the terms of the Endangered Species Act when making such adjustments;
(iv) the state opposes the transfer of grazing animal unit months to wildlife for supposed reasons of rangeland health;
(v) reductions in domestic livestock animal unit months must be temporary and scientifically based upon rangeland conditions;
(vi) policies, plans, programs, initiatives, resource management plans, and forest plans may not allow the placement of grazing animal unit months in a suspended use category unless there is a rational and scientific determination that the condition of the rangeland allotment or district in question will not sustain the animal unit months sought to be placed in suspended use;
(vii) any grazing animal unit months that are placed in a suspended use category should be returned to active use when range conditions improve;
(viii) policies, plans, programs, and initiatives related to vegetation management should recognize and uphold the preference for domestic grazing over alternate forage uses in established grazing districts while upholding management practices that optimize and expand forage for grazing and wildlife in conjunction with state wildlife management plans and programs in order to provide maximum available forage for all uses; and
(ix) in established grazing districts, animal unit months that have been reduced due to rangeland health concerns should be restored to livestock when rangeland conditions improve, and should not be converted to wildlife use.
(7) The state planning coordinator shall recognize and promote the following findings in the preparation of any policies, plans, programs, processes, or desired outcomes relating to federal lands and natural resources on federal lands under this section:
(a) as a coholder of R.S. 2477 rights-of-way with the counties, the state supports its recognition by the federal government and the public use of R.S. 2477 rights-of-way and urges the federal government to fully recognize the rights-of-way and their use by the public as expeditiously as possible;
(b) it is the policy of the state to use reasonable administrative and legal measures to protect and preserve valid existing rights-of-way granted by Congress under R.S. 2477, and to support and work in conjunction with counties to redress cases where R.S. 2477 rights-of-way are not recognized or are impaired; and
(c) transportation and access routes to and across federal lands, including all rights-of-way vested under R.S. 2477, are vital to the state's economy and to the quality of life in the state, and must provide, at a minimum, a network of roads throughout the resource planning area that provides for:
(i) movement of people, goods, and services across public lands;
(ii) reasonable access to a broad range of resources and opportunities throughout the resource planning area, including:
(A) livestock operations and improvements;
(B) solid, fluid, and gaseous mineral operations;
(C) recreational opportunities and operations, including motorized and nonmotorized recreation;
(D) search and rescue needs;
(E) public safety needs; and
(F) access for transportation of wood products to market;
(iii) access to federal lands for people with disabilities and the elderly; and
(iv) access to state lands and school and institutional trust lands to accomplish the purposes of those lands.
(8) The state planning coordinator shall recognize and promote the following findings in the preparation of any plans, policies, programs, processes, or desired outcomes relating to federal lands and natural resources on federal lands pursuant to this section:
(a) the state's support for the addition of a river segment to the National Wild and Scenic Rivers System, 16 U.S.C. Sec. 1271 et seq., will be withheld until:
(i) it is clearly demonstrated that water is present and flowing at all times;
(ii) it is clearly demonstrated that the required water-related value is considered outstandingly remarkable within a region of comparison consisting of one of the three physiographic provinces in the state, and that the rationale and justification for the conclusions are disclosed;
(iii) it is clearly demonstrated that the inclusion of each river segment is consistent with the plans and policies of the state and the county or counties where the river segment is located as those plans and policies are developed according to Subsection (3);
(iv) the effects of the addition upon the local and state economies, agricultural and industrial operations and interests, outdoor recreation, water rights, water quality, water resource planning, and access to and across river corridors in both upstream and downstream directions from the proposed river segment have been evaluated in detail by the relevant federal agency;
(v) it is clearly demonstrated that the provisions and terms of the process for review of potential additions have been applied in a consistent manner by all federal agencies;
(vi) the rationale and justification for the proposed addition, including a comparison with protections offered by other management tools, is clearly analyzed within the multiple-use mandate, and the results disclosed;
(vii) it is clearly demonstrated that the federal agency with management authority over the river segment, and which is proposing the segment for inclusion in the National Wild and Scenic River System will not use the actual or proposed designation as a basis to impose management standards outside of the federal land management plan;
(viii) it is clearly demonstrated that the terms and conditions of the federal land and resource management plan containing a recommendation for inclusion in the National Wild and Scenic River System:
(A) evaluates all eligible river segments in the resource planning area completely and fully for suitability for inclusion in the National Wild and Scenic River System;
(B) does not suspend or terminate any studies for inclusion in the National Wild and Scenic River System at the eligibility phase;
(C) fully disclaims any interest in water rights for the recommended segment as a result of the adoption of the plan; and
(D) fully disclaims the use of the recommendation for inclusion in the National Wild and Scenic River System as a reason or rationale for an evaluation of impacts by proposals for projects upstream, downstream, or within the recommended segment;
(ix) it is clearly demonstrated that the agency with management authority over the river segment commits not to use an actual or proposed designation as a basis to impose Visual Resource Management Class I or II management prescriptions that do not comply with the provisions of Subsection (8)(t); and
(x) it is clearly demonstrated that including the river segment and the terms and conditions for managing the river segment as part of the National Wild and Scenic River System will not prevent, reduce, impair, or otherwise interfere with:
(A) the state and its citizens' enjoyment of complete and exclusive water rights in and to the rivers of the state as determined by the laws of the state; or
(B) local, state, regional, or interstate water compacts to which the state or any county is a party;
(b) the conclusions of all studies related to potential additions to the National Wild and Scenic River System, 16 U.S.C. Sec. 1271 et seq., are submitted to the state for review and action by the Legislature and governor, and the results, in support of or in opposition to, are included in any planning documents or other proposals for addition and are forwarded to the United States Congress;
(c) the state's support for designation of an Area of Critical Environmental Concern (ACEC), as defined in 43 U.S.C. Sec. 1702, within federal land management plans will be withheld until:
(i) it is clearly demonstrated that the proposed area satisfies all the definitional requirements of the Federal Land Policy and Management Act of 1976, 43 U.S.C. Sec. 1702(a);
(ii) it is clearly demonstrated that the area proposed for designation as an ACEC is limited in geographic size and that the proposed management prescriptions are limited in scope to the minimum necessary to specifically protect and prevent irreparable damage to the relevant and important values identified, or limited in geographic size and management prescriptions to the minimum required to specifically protect human life or safety from natural hazards;
(iii) it is clearly demonstrated that the proposed area is limited only to areas that are already developed or used or to areas where no development is required;
(iv) it is clearly demonstrated that the proposed area contains relevant and important historic, cultural or scenic values, fish or wildlife resources, or natural processes which are unique or substantially significant on a regional basis, or contain natural hazards which significantly threaten human life or safety;
(v) the federal agency has analyzed regional values, resources, processes, or hazards for irreparable damage and its potential causes resulting from potential actions which are consistent with the multiple-use, sustained-yield principles, and the analysis describes the rationale for any special management attention required to protect, or prevent irreparable damage to the values, resources, processes, or hazards;
(vi) it is clearly demonstrated that the proposed designation is consistent with the plans and policies of the state and of the county where the proposed designation is located as those plans and policies are developed according to Subsection (3);
(vii) it is clearly demonstrated that the proposed ACEC designation will not be applied redundantly over existing protections provided by other state and federal laws for federal lands or resources on federal lands, and that the federal statutory requirement for special management attention for a proposed ACEC will discuss and justify any management requirements needed in addition to those specified by the other state and federal laws;
(viii) the difference between special management attention required for an ACEC and normal multiple-use management has been identified and justified, and that any determination of irreparable damage has been analyzed and justified for short and long-term horizons;
(ix) it is clearly demonstrated that the proposed designation:
(A) is not a substitute for a wilderness suitability recommendation;
(B) is not a substitute for managing areas inventoried for wilderness characteristics after 1993 under the BLM interim management plan for valid wilderness study areas; and
(C) it is not an excuse or justification to apply de facto wilderness management standards; and
(x) the conclusions of all studies are submitted to the state, as a cooperating agency, for review, and the results, in support of or in opposition to, are included in all planning documents;
(d) sufficient federal lands are made available for government-to-government exchanges of school and institutional trust lands and federal lands without regard for a resource-to-resource correspondence between the surface or mineral characteristics of the offered trust lands and the offered federal lands;
(e) federal agencies should support government-to-government exchanges of land with the state based on a fair process of valuation which meets the fiduciary obligations of both the state and federal governments toward trust lands management, and which assures that revenue authorized by federal statute to the state from mineral or timber production, present or future, is not diminished in any manner during valuation, negotiation, or implementation processes;
(f) agricultural and grazing lands should continue to produce the food and fiber needed by the citizens of the state and the nation, and the rural character and open landscape of rural Utah should be preserved through a healthy and active agricultural and grazing industry, consistent with private property rights and state fiduciary duties;
(g) the resources of the forests and rangelands of the state should be integrated as part of viable, robust, and sustainable state and local economies, and available forage should be evaluated for the full complement of herbivores the rangelands can support in a sustainable manner, and forests should contain a diversity of timber species, and disease or insect infestations in forests should be controlled using logging or other best management practices;
(h) the state opposes any additional evaluation of national forest service lands as "roadless" or "unroaded" beyond the forest service's second roadless area review evaluation and opposes efforts by agencies to specially manage those areas in a way that:
(i) closes or declassifies existing roads unless multiple side by side roads exist running to the same destination and state and local governments consent to close or declassify the extra roads;
(ii) permanently bars travel on existing roads;
(iii) excludes or diminishes traditional multiple-use activities, including grazing and proper forest harvesting;
(iv) interferes with the enjoyment and use of valid, existing rights, including water rights, local transportation plan rights, R.S. 2477 rights, grazing allotment rights, and mineral leasing rights; or
(v) prohibits development of additional roads reasonably necessary to pursue traditional multiple-use activities;
(i) the state's support for any forest plan revision or amendment will be withheld until the appropriate plan revision or plan amendment clearly demonstrates that:
(i) established roads are not referred to as unclassified roads or a similar classification;
(ii) lands in the vicinity of established roads are managed under the multiple-use, sustained-yield management standard; and
(iii) no roadless or unroaded evaluations or inventories are recognized or upheld beyond those that were recognized or upheld in the forest service's second roadless area review evaluation;
(j) the state's support for any recommendations made under the statutory requirement to examine the wilderness option during the revision of land and resource management plans by the U.S. Forest Service will be withheld until it is clearly demonstrated that:
(i) the duly adopted transportation plans of the state and county or counties within the planning area are fully and completely incorporated into the baseline inventory of information from which plan provisions are derived;
(ii) valid state or local roads and rights-of-way are recognized and not impaired in any way by the recommendations;
(iii) the development of mineral resources by underground mining is not affected by the recommendations;
(iv) the need for additional administrative or public roads necessary for the full use of the various multiple-uses, including recreation, mineral exploration and development, forest health activities, and grazing operations is not unduly affected by the recommendations;
(v) analysis and full disclosure is made concerning the balance of multiple-use management in the proposed areas, and that the analysis compares the full benefit of multiple-use management to the recreational, forest health, and economic needs of the state and the counties to the benefits of the requirements of wilderness management; and
(vi) the conclusions of all studies related to the requirement to examine the wilderness option are submitted to the state for review and action by the Legislature and governor, and the results, in support of or in opposition to, are included in any planning documents or other proposals that are forwarded to the United States Congress;
(k) the invasion of noxious weeds and undesirable invasive plant species into the state should be reversed, their presence eliminated, and their return prevented;
(l) management and resource-use decisions by federal land management and regulatory agencies concerning the vegetative resources within the state should reflect serious consideration of the proper optimization of the yield of water within the watersheds of the state;
(m) (i) it is the policy of the state that:
(A) mineral and energy production and environmental protection are not mutually exclusive;
(B) it is technically feasible to permit appropriate access to mineral and energy resources while preserving nonmineral and nonenergy resources;
(C) resource management planning should seriously consider all available mineral and energy resources;
(D) the development of the solid, fluid, and gaseous mineral resources of the state and the renewable resources of the state should be encouraged;
(E) the waste of fluid and gaseous minerals within developed areas should be prohibited; and
(F) requirements to mitigate or reclaim mineral development projects should be based on credible evidence of significant impacts to natural or cultural resources;
(ii) the state's support for mineral development provisions within federal land management plans will be withheld until the appropriate land management plan environmental impact statement clearly demonstrates:
(A) that the authorized planning agency has:
(I) considered and evaluated the mineral and energy potential in all areas of the planning area as if the areas were open to mineral development under standard lease agreements; and
(II) evaluated any management plan prescription for its impact on the area's baseline mineral and energy potential;
(B) that the development provisions do not unduly restrict access to public lands for energy exploration and development;
(C) that the authorized planning agency has supported any closure of additional areas to mineral leasing and development or any increase of acres subject to no surface occupancy restrictions by adhering to:
(I) the relevant provisions of the Federal Land Policy and Management Act of 1976, 43 U.S.C. Sec. 1701 et seq.;
(II) other controlling mineral development laws; and
(III) the controlling withdrawal and reporting procedures set forth in the Federal Land Policy and Management Act of 1976, 43 U.S.C. Sec. 1701 et seq.;
(D) that the authorized planning agency evaluated whether to repeal any moratorium that may exist on the issuance of additional mining patents and oil and gas leases;
(E) that the authorized planning agency analyzed all proposed mineral lease stipulations and considered adopting the least restrictive necessary to protect against damage to other significant resource values;
(F) that the authorized planning agency evaluated mineral lease restrictions to determine whether to waive, modify, or make exceptions to the restrictions on the basis that they are no longer necessary or effective;
(G) that the authorized federal agency analyzed all areas proposed for no surface occupancy restrictions, and that the analysis evaluated:
(I) whether directional drilling is economically feasible and ecologically necessary for each proposed no surface occupancy area;
(II) whether the directional drilling feasibility analysis, or analysis of other management prescriptions, demonstrates that the proposed no surface occupancy prescription, in effect, sterilizes the mineral and energy resources beneath the area; and
(III) whether, if the minerals are effectively sterilized, the area must be reported as withdrawn under the provisions of the Federal Land Policy and Management Act; and
(H) that the authorized planning agency has evaluated all directional drilling requirements in no surface occupancy areas to determine whether directional drilling is feasible from an economic, ecological, and engineering standpoint;
(n) motorized, human, and animal-powered outdoor recreation should be integrated into a fair and balanced allocation of resources within the historical and cultural framework of multiple-uses in rural Utah, and outdoor recreation should be supported as part of a balanced plan of state and local economic support and growth;
(o) off-highway vehicles should be used responsibly, the management of off-highway vehicles should be uniform across all jurisdictions, and laws related to the use of off-highway vehicles should be uniformly applied across all jurisdictions;
(p) (i) rights-of-way granted and vested under the provisions of R.S. 2477 should be preserved and acknowledged;
(ii) land use management plans, programs, and initiatives should be consistent with both state and county transportation plans developed according to Subsection (3) in order to provide a network of roads throughout the planning area that provides for:
(A) movement of people, goods, and services across public lands;
(B) reasonable access to a broad range of resources and opportunities throughout the planning area, including access to livestock, water, and minerals;
(C) economic and business needs;
(D) public safety;
(E) search and rescue;
(F) access for people with disabilities and the elderly;
(G) access to state lands; and
(H) recreational opportunities;
(q) transportation and access provisions for all other existing routes, roads, and trails across federal, state, and school trust lands within the state should be determined and identified, and agreements should be executed and implemented, as necessary to fully authorize and determine responsibility for maintenance of all routes, roads, and trails;
(r) the reasonable development of new routes and trails for motorized, human, and animal-powered recreation should be implemented;
(s) (i) forests, rangelands, and watersheds, in a healthy condition, are necessary and beneficial for wildlife, livestock grazing, and other multiple-uses;
(ii) management programs and initiatives that are implemented to increase forage for the mutual benefit of the agricultural industry, livestock operations, and wildlife species should utilize all proven techniques and tools;
(iii) the continued viability of livestock operations and the livestock industry should be supported on the federal lands within the state by management of the lands and forage resources, by the proper optimization of animal unit months for livestock, in accordance with the multiple-use provisions of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701 et seq., the provisions of the Taylor Grazing Act of 1934, 43 U.S.C. 315 et seq., and the provisions of the Public Rangelands Improvement Act of 1978, 43 U.S.C. 1901 et seq.;
(iv) provisions for predator control initiatives or programs under the direction of state and local authorities should be implemented; and
(v) resource-use and management decisions by federal land management and regulatory agencies should support state-sponsored initiatives or programs designed to stabilize wildlife populations that may be experiencing a scientifically demonstrated decline in those populations; and
(t) management and resource use decisions by federal land management and regulatory agencies concerning the scenic resources of the state must balance the protection of scenery with the full management requirements of the other authorized uses of the land under multiple-use management, and should carefully consider using Visual Resource Management Class I protection only for areas of inventoried Class A scenery or equivalent.
(9) Nothing contained in this section may be construed to restrict or supersede the planning powers conferred upon state departments, agencies, instrumentalities, or advisory councils of the state or the planning powers conferred upon political subdivisions by any other existing law.
(10) Nothing in this section may be construed to affect any lands withdrawn from the public domain for military purposes, which are administered by the United States Army, Air Force, or Navy.
Section 1687. Section 63J-4-501, which is renumbered from Section 63-38d-501 is renumbered and amended to read:
Part 5. Resource Development Coordinating Committee
[63-38d-501]. 63J-4-501. Creation.
There is created the Resource Development Coordinating Committee within the Governor's Office of Planning and Budget to:
(1) assist the state planning coordinator in fulfilling the responsibilities of reviewing and coordinating technical and policy actions that may affect the physical resources of the state; and
(2) facilitate the exchange of information on those actions among state agencies and other levels of government.
Section 1688. Section 63J-4-502, which is renumbered from Section 63-38d-502 is renumbered and amended to read:
[63-38d-502
]. 63J-4-502. Membership -- Terms -- Chair -- Expenses.(1) The Resource Development Coordinating Committee shall consist of the following 25 members:
(a) the state science advisor;
(b) a representative from the Department of Agriculture and Food appointed by the executive director;
(c) a representative from the Department of Community and Culture appointed by the executive director;
(d) a representative from the Department of Environmental Quality appointed by the executive director;
(e) a representative from the Department of Natural Resources appointed by the executive director;
(f) a representative from the Department of Transportation appointed by the executive director;
(g) a representative from the Governor's Office of Economic Development appointed by the director;
(h) a representative from the Division of Housing and Community Development appointed by the director;
(i) a representative from the Division of State History appointed by the director;
(j) a representative from the Division of Air Quality appointed by the director;
(k) a representative from the Division of Drinking Water appointed by the director;
(l) a representative from the Division of Environmental Response and Remediation appointed by the director;
(m) a representative from the Division of Radiation appointed by the director;
(n) a representative from the Division of Solid and Hazardous Waste appointed by the director;
(o) a representative from the Division of Water Quality appointed by the director;
(p) a representative from the Division of Oil, Gas, and Mining appointed by the director;
(q) a representative from the Division of Parks and Recreation appointed by the director;
(r) a representative from the Division of Forestry, Fire and State Lands appointed by the director;
(s) a representative from the Utah Geological Survey appointed by the director;
(t) a representative from the Division of Water Resources appointed by the director;
(u) a representative from the Division of Water Rights appointed by the director;
(v) a representative from the Division of Wildlife Resources appointed by the director;
(w) a representative from the School and Institutional Trust Lands Administration appointed by the director;
(x) a representative from the Division of Facilities Construction and Management appointed by the director; and
(y) a representative from the Division of Homeland Security appointed by the director.
(2) (a) As particular issues require, the committee may, by majority vote of the members present, and with the concurrence of the state planning coordinator, appoint additional temporary members to serve as ex officio voting members.
(b) Those ex officio members may discuss and vote on the issue or issues for which they were appointed.
(3) A chair shall be selected by a majority vote of committee members with the concurrence of the state planning coordinator.
(4) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
Section 1689. Section 63J-4-503, which is renumbered from Section 63-38d-503 is renumbered and amended to read:
[63-38d-503
]. 63J-4-503. Planning coordinator responsibilities.The state planning coordinator shall:
(1) administer this part;
(2) subject to the direction and approval of the governor, take necessary action for its implementation; and
(3) inform political subdivision representatives, in advance, of all committee meetings.
Section 1690. Section 63J-4-504, which is renumbered from Section 63-38d-504 is renumbered and amended to read:
[63-38d-504
]. 63J-4-504. Duties.(1) The committee shall assist the state planning coordinator:
(a) in the review of:
(i) proposed state actions affecting physical resources;
(ii) federal and federally assisted actions for which state review is provided by federal law, regulation, or policy; and
(iii) proposed federal regulations and policies pertaining to natural resource issues; and
(b) in the development and implementation of a procedure that will expedite the review of proposed energy and industrial facilities that require permits to be issued by more than one state agency.
(2) The state planning coordinator shall review and forward the comments and recommendations of the committee to:
(a) the governor;
(b) the initiating state agency, in the case of a proposed state action; and
(c) the Office of Legislative Research and General Counsel.
Section 1691. Section 63J-4-505, which is renumbered from Section 63-38d-505 is renumbered and amended to read:
[63-38d-505
]. 63J-4-505. Powers of state agencies and local governments not limited.This part does not limit powers conferred upon state departments, agencies, or instrumentalities of the state or political subdivisions by existing law.
Section 1692. Section 63J-4-601, which is renumbered from Section 63-38d-601 is renumbered and amended to read:
Part 6. Public Lands Policy Coordination
[63-38d-601]. 63J-4-601. Definitions.
As used in this part:
(1) "Coordinator" means the public lands policy coordinator appointed in this part.
(2) "Council" means the Public Lands Policy Coordinating Council created by this part.
(3) "Office" means the Public Lands Policy Coordinating Office created by this part.
(4) "Political subdivision" means a county, municipality, local district, special service district, school district, interlocal cooperation agreement entity, or any administrative subunit of them.
(5) "State planning coordinator" means the person appointed under Subsection [63-38d-202] 63J-4-202(1)(a)(ii).
Section 1693. Section 63J-4-602, which is renumbered from Section 63-38d-602 is renumbered and amended to read:
[63-38d-602
]. 63J-4-602. Public Lands Policy Coordinating Office -- Coordinator -- Appointment -- Qualifications -- Compensation.(1) There is created within state government the Public Lands Policy Coordinating Office. The office shall be administered by a public lands policy coordinator.
(2) The coordinator shall be appointed by the governor with the consent of the Senate and shall serve at the pleasure of the governor.
(3) The coordinator shall have demonstrated the necessary administrative and professional ability through education and experience to efficiently and effectively manage the office's affairs.
(4) The coordinator and employees of the office shall receive compensation as provided in Title 67, Chapter 19, Utah State Personnel Management Act.
Section 1694. Section 63J-4-603, which is renumbered from Section 63-38d-603 is renumbered and amended to read:
[63-38d-603
]. 63J-4-603. Powers and duties of coordinator and office.(1) The coordinator and the office shall:
(a) assist the state planning coordinator in fulfilling the duties outlined in Section [63-38d-401] 63J-4-401 as those duties relate to the development of public lands policies by:
(i) developing cooperative contracts and agreements between the state, political subdivisions, and agencies of the federal government for involvement in the development of public lands policies;
(ii) producing research, documents, maps, studies, analysis, or other information that supports the state's participation in the development of public lands policy;
(iii) preparing comments to ensure that the positions of the state and political subdivisions are considered in the development of public lands policy;
(iv) partnering with state agencies and political subdivisions in an effort to:
(A) prepare coordinated public lands policies;
(B) develop consistency reviews and responses to public lands policies;
(C) develop management plans that relate to public lands policies; and
(D) develop and maintain a statewide land use plan that is based on cooperation and in conjunction with political subdivisions; and
(v) providing other information or services related to public lands policies as requested by the state planning coordinator; and
(b) facilitate and coordinate the exchange of information, comments, and recommendations on public lands policies between and among:
(i) state agencies;
(ii) political subdivisions;
(iii) the Rural Development Program created under Section [63-38f-1602] 63M-1-1602;
(iv) the Resource Development Coordinating Committee created under Section [63-38d-501] 63J-4-501;
(v) School and Institutional Trust Lands Administration created under Section 53C-1-201;
(vi) the committee created under Section 63F-1-508 to award grants to counties to inventory and map R.S. 2477 rights-of-way, associated structures, and other features; and
(vii) the Constitutional Defense Council created under Section 63C-4-101;
(c) perform the duties established in Title 9, Chapter 8, Part 3, Antiquities, and Title 9, Chapter 8, Part 4, Historic Sites; and
(d) consistent with other statutory duties, encourage agencies to responsibly preserve archaeological resources.
(2) In providing assistance to the state planning coordinator under Subsection (1)(a), the coordinator and office shall take into consideration the:
(a) findings provided under Subsections [63-38d-401] 63J-4-401(6) and (7); and
(b) recommendations of the council.
Section 1695. Section 63J-4-604, which is renumbered from Section 63-38d-604 is renumbered and amended to read:
[63-38d-604
]. 63J-4-604. Public Lands Policy Coordinating Council -- Creation -- Membership -- Funding.(1) There is created the Public Lands Policy Coordinating Council composed of the following seven members:
(a) one individual, appointed by the governor, who shall serve as chair of the council;
(b) one member of the Senate appointed by the president of the Senate;
(c) one member of the House of Representatives appointed by the speaker of the House of Representatives;
(d) two individuals appointed by the Utah Association of Counties; and
(e) the executive director of the Department of Natural Resources and the director of the School and Institutional Trust Lands Administration as ex officio, nonvoting members.
(2) Members shall be appointed for four-year terms.
(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term in the same manner as the original appointment.
(4) (a) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(b) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
(5) The council shall be funded from the Constitutional Defense Restricted Account created in Section 63C-4-103.
Section 1696. Section 63J-4-605, which is renumbered from Section 63-38d-605 is renumbered and amended to read:
[63-38d-605
]. 63J-4-605. Council duties.The council shall provide advice and recommendations on the development of public lands policies to the:
(1) Public Lands Policy Coordinating office;
(2) state planning coordinator; and
(3) governor.
Section 1697. Section 63J-5-101 is enacted to read:
CHAPTER 5. FEDERAL FUNDS PROCEDURES ACT
Part 1. General Provisions
63J-5-101. Title.
This chapter is known as the "Federal Funds Procedures Act."
Section 1698. Section 63J-5-102, which is renumbered from Section 63-38e-101 is renumbered and amended to read:
[63-38e-101
]. 63J-5-102. Definitions.(1) As used in this chapter:
(a) (i) "Agency" means a department, division, committee, commission, council, court, or other administrative subunit of the state.
(ii) "Agency" includes executive branch entities and judicial branch entities.
(iii) "Agency" does not mean higher education institutions or political subdivisions.
(b) (i) "Federal funds" means cash or other monies received from the United States government or from other individuals or entities for or on behalf of the United States and deposited with the state treasurer or any agency of the state.
(ii) "Federal funds" includes federal assistance and federal assistance programs, however described.
(iii) "Federal funds" does not include monies received from the United States government to reimburse the state for monies expended by the state.
(c) "Federal funds reauthorization" means the formal submission from an agency to the federal government:
(i) applying for or seeking reauthorization of federal funds; or
(ii) applying for or seeking reauthorization to participate in a federal program that will result in federal funds being transferred to an agency.
(d) "Federal funds request summary" means a document detailing:
(i) the amount of money that is being requested or is available to be received by the state from the federal government for each federal funds reauthorization or new federal funds request;
(ii) those federal funds reauthorizations and new federal funds requests that are included as part of the agency's proposed budget for the fiscal year, and the amount of those requests;
(iii) the amount of new state monies, if any, that will be required to receive the federal funds or participate in the federal program;
(iv) the number of additional permanent full-time employees, additional permanent part-time employees, or combination of additional permanent full-time employees and additional permanent part-time employees, if any, that the state estimates are needed in order to receive the federal funds or participate in the federal program; and
(v) any requirements that the state must meet as a condition for receiving the federal funds or participating in the federal program.
(e) "Federal maintenance of effort requirements" means any matching, level of effort, or earmarking requirements, as defined in Office of Management and Budget Circular A-133, Compliance Requirement G, that are imposed on an agency as a condition of receiving federal funds.
(f) "New federal funds" means:
(i) federal assistance or other federal funds that are available from the federal government and that the state is not currently receiving;
(ii) a federal assistance program or other federal program in which the state is not currently participating;
(iii) each federal funds reauthorization that would require the state, as a condition for receiving the federal funds, to:
(A) add additional permanent full-time employees, permanent part-time employees, or combination of additional permanent full-time employees and permanent part-time employees;
(B) increase the amount of state matching funds required to receive the federal funds or participate in the federal program; or
(C) comply with new requirements in order to receive the federal funds or participate in the federal program.
(g) "New federal funds request" means the formal submission from an agency to the federal government:
(i) applying for or otherwise seeking to obtain new federal funds;
(ii) applying for or seeking to participate in a new federal program that will result in federal funds being transferred to an agency.
(h) (i) "New state monies" means monies, whether specifically appropriated by the legislature or not, that the federal government requires Utah to expend as a condition for receiving the federal funds or participating in the federal program.
(ii) "New state monies" includes monies expended to meet federal maintenance of effort requirements.
(i) "Pass-through federal funds" means federal funds provided to an agency that are distributed to local governments or private entities without being used by the agency.
(j) "State" means the state of Utah and all of its agencies, and any administrative subunits of those agencies.
(2) When this chapter describes an employee as a "permanent full-time employee" or a "permanent part-time employee," it is not intended to, and may not be construed to, affect the employee's status as an at-will employee.
Section 1699. Section 63J-5-103, which is renumbered from Section 63-38e-102 is renumbered and amended to read:
[63-38e-102
]. 63J-5-103. Scope and applicability of chapter.(1) Except as provided in Subsection (2), and except as otherwise provided by a statute superseding provisions of this chapter by explicit reference to this chapter, the provisions of this chapter apply to each agency and govern each federal funds request.
(2) This chapter does not govern federal funds requests for:
(a) the Medical Assistance Program, commonly known as Medicaid;
(b) the Children's Health Insurance Program;
(c) the Women, Infant, and Children program;
(d) the Temporary Assistance to Needy Families program;
(e) Social Security Act monies;
(f) the Substance Abuse Prevention and Treatment program;
(g) Child Care Block grants;
(h) Food Stamp Administration and Training monies;
(i) Unemployment Insurance Operations monies;
(j) Federal Highway Administration monies;
(k) the Utah National Guard; or
(l) pass-through federal funds.
(3) The governor need not seek legislative review or approval of federal funds received by the state when the governor has declared a state of emergency and the federal funds are received to assist disaster victims under Subsection [63-5a-3] 63K-4-201(2).
Section 1700. Section 63J-5-201, which is renumbered from Section 63-38e-201 is renumbered and amended to read:
Part 2. Federal Funds Review and Approval
[63-38e-201]. 63J-5-201. Legislative Appropriation Subcommittees to review certain federal funds reauthorizations -- Executive Appropriations review -- Legislative approval.
(1) The Governor's Office of Planning and Budget shall annually prepare and submit a federal funds request summary for each agency to the Legislative Fiscal Analyst at the same time the governor submits the confidential draft budget under Section [63-38-2] 63J-1-201.
(2) (a) The Legislative Fiscal Analyst shall submit a federal funds request summary for each agency to the legislative appropriations subcommittee responsible for that agency's budget for review during each annual general session.
(b) Each legislative appropriations subcommittee shall review the federal funds request summary and may:
(i) recommend that the agency accept the federal funds or participate in the federal program for the fiscal year under consideration; or
(ii) recommend that the agency not accept the federal funds or not participate in the federal program for the fiscal year under consideration.
(3) The Legislative Executive Appropriations Committee shall:
(a) review each subcommittee's recommendation;
(b) determine whether or not the agency should be authorized to accept the federal funds or participate in the federal program; and
(c) direct the Legislative Fiscal Analyst to include those federal funds and federal programs that the committee approves in the annual appropriations act for approval by the Legislature.
Section 1701. Section 63J-5-202, which is renumbered from Section 63-38e-202 is renumbered and amended to read:
[63-38e-202
]. 63J-5-202. Governor to approve certain new federal funds requests.(1) (a) Before obligating the state to accept or receive new federal funds or to participate in a new federal program, and no later than three months after submitting a new federal funds request, and, where possible, before formally submitting the new federal funds request, an executive branch agency shall submit a federal funds request summary to the governor or the governor's designee for approval or rejection when:
(i) the state will receive total payments of $1,000,000 or less per year if the new federal funds request is approved;
(ii) receipt of the new federal funds will require no additional permanent full-time employees, permanent part-time employees, or combination of additional permanent full-time employees and permanent part-time employees; and
(iii) no new state monies will be required to match the new federal funds or to implement the new federal program for which the grant is issued.
(b) The Governor's Office of Planning and Budget shall report each new federal funds request that is approved by the governor or the governor's designee and each new federal funds request granted by the federal government to:
(i) the Legislature's Executive Appropriations Committee;
(ii) the Office of the Legislative Fiscal Analyst; and
(iii) the Office of Legislative Research and General Counsel.
(2) The governor or the governor's designee shall approve or reject each new federal funds request submitted under the authority of this section.
(3) (a) If the governor or the governor's designee approves the new federal funds request, the executive branch agency may accept the new federal funds or participate in the new federal program.
(b) If the governor or the governor's designee rejects the new federal funds request, the executive branch agency may not accept the new federal funds or participate in the new federal program.
(4) If an executive branch agency fails to obtain the governor's or the governor's designee's approval under this section, the governor may require the agency to:
(a) withdraw the new federal funds request;
(b) return the federal funds;
(c) withdraw from the federal program; or
(d) any combination of Subsections (4)(a), (4)(b), and (4)(c).
Section 1702. Section 63J-5-203, which is renumbered from Section 63-38e-203 is renumbered and amended to read:
[63-38e-203
]. 63J-5-203. Judicial council to approve certain new federal funds requests.(1) (a) Before obligating the state to accept or receive new federal funds or to participate in a new federal program, and no later than three months after submitting a new federal funds request, and, where possible, before formally submitting the new federal funds request, a judicial branch agency shall submit a federal funds request summary to the Judicial Council for its approval or rejection when:
(i) the state will receive total payments of $1,000,000 or less per year if the new federal funds request is approved;
(ii) receipt of the new federal funds will require no additional permanent full-time employees, additional permanent part-time employees, or combination of additional permanent full-time employees and permanent part-time employees; and
(iii) no new state monies will be required to match the new federal funds or to implement the new federal program for which the grant is issued.
(b) The Judicial Council shall report each new federal funds request that is approved by it and each new federal funds request granted by the federal government to:
(i) the Legislature's Executive Appropriations Committee;
(ii) the Office of the Legislative Fiscal Analyst; and
(iii) the Office of Legislative Research and General Counsel.
(2) The Judicial Council shall approve or reject each new federal funds request submitted to it under the authority of this section.
(3) (a) If the Judicial Council approves the new federal funds request, the judicial branch agency may accept the new federal funds or participate in the new federal program.
(b) If the Judicial Council rejects the new federal funds request, the judicial branch agency may not accept the new federal funds or participate in the new federal program.
(4) If a judicial branch agency fails to obtain the Judicial Council's approval under this section, the Judicial Council may require the agency to:
(a) withdraw the new federal funds request;
(b) return the federal funds;
(c) withdraw from the federal program; or
(d) any combination of Subsections (4)(a), (4)(b), and (4)(c).
Section 1703. Section 63J-5-204, which is renumbered from Section 63-38e-204 is renumbered and amended to read:
[63-38e-204
]. 63J-5-204. Legislative review and approval of certain new federal funds requests.(1) As used in this section:
(a) "High impact federal funds request" means a new federal funds request that will or could:
(i) result in the state receiving total payments of $10,000,000 or more per year from the federal government;
(ii) require the state to add 11 or more permanent full-time employees, 11 or more permanent part-time employees, or combination of permanent full-time and permanent part-time employees equal to 11 or more in order to receive the new federal funds or participate in the new federal program; or
(iii) require the state to expend more than $1,000,000 of new state monies in a fiscal year in order to receive or administer the new federal funds or participate in the new federal program.
(b) "Medium impact federal funds request" means a new federal funds request that will or could:
(i) result in the state receiving total payments of more than $1,000,000 but less than $10,000,000 per year from the federal government;
(ii) require the state to add more than zero but less than 11 permanent full-time employees, more than zero but less than 11 permanent part-time employees, or a combination of permanent full-time employees and permanent part-time employees equal to more than zero but less than 11 in order to receive or administer the new federal funds or participate in the new federal program; or
(iii) require the state to expend $1 to $1,000,000 of new state monies in a fiscal year in order to receive or administer the new federal funds or participate in the new federal program.
(2) (a) Before obligating the state to accept or receive new federal funds or to participate in a new federal program under a medium impact federal funds request, and no later than three months after submitting a medium impact federal funds request, and, where possible, before formally submitting the medium impact federal funds request, an agency shall:
(i) submit the federal funds request summary to the governor or the Judicial Council, as appropriate, for approval or rejection; and
(ii) if the governor or Judicial Council approves the new federal funds request, submit the federal funds request summary to the Legislative Executive Appropriations Committee for its review and recommendations.
(b) The Legislative Executive Appropriations Committee shall review the federal funds request summary and may:
(i) recommend that the agency accept the new federal funds;
(ii) recommend that the agency not accept the new federal funds; or
(iii) recommend to the governor that the governor call a special session of the Legislature to review and approve or reject the acceptance of the new federal funds.
(3) (a) Before obligating the state to accept or receive new federal funds or to participate in a new federal program under a high impact federal funds request, and no later than three months after submitting a high impact federal funds request, and, where possible, before formally submitting the high impact federal funds request, an agency shall:
(i) submit the federal funds request summary to the governor or Judicial Council, as appropriate, for approval or rejection; and
(ii) if the governor or Judicial Council approves the new federal funds request, submit the federal funds request summary to the Legislature for its approval or rejection in an annual general session or a special session.
(b) (i) If the Legislature approves the new federal funds request, the agency may accept the new federal funds or participate in the new federal program.
(ii) If the Legislature fails to approve the new federal funds request, the agency may not accept the new federal funds or participate in the new federal program.
(c) If an agency fails to obtain the Legislature's approval under this Subsection (3):
(i) the governor or Judicial Council, as appropriate, may require the agency to withdraw the new federal funds request or refuse or return the new federal funds;
(ii) the Legislature may, if federal law allows, opt out or decline to participate in the new federal program or decline to receive the new federal funds; or
(iii) the Legislature may reduce the agency's General Fund appropriation in an amount less than, equal to, or greater than the amount of federal funds received by the agency.
Section 1704. Section 63J-6-101 is enacted to read:
CHAPTER 6. TAX ANTICIPATION NOTES ACT
Part 1. General Provisions
63J-6-101. Title.
This chapter is known as the "Tax Anticipation Notes Act."
Section 1705. Section 63J-6-201, which is renumbered from Section 63-61-1 is renumbered and amended to read:
Part 2. Procedures
[63-61-1]. 63J-6-201. Borrowing authorized -- Limitation -- Issuance of notes -- Maximum term.
The state treasurer may borrow money for the state in anticipation of (a) income or revenue from taxes, whether the taxes are specific, ad valorem, excise, sales, income, franchise, or fees for the current fiscal year, or that portion of the taxes not collected or previously anticipated at the time of borrowing, and (b) other non-tax revenues of the state, in a principal sum not greater than 75% of such income or revenue which the director of the Division of Finance certifies to the state treasurer are to be reasonably anticipated to be collected during the current fiscal year. Each loan shall be evidenced by the issuance and sale of tax and revenue anticipation notes of the state, for fixed periods not to exceed 12 months or the end of the current fiscal year, whichever is sooner.
Section 1706. Section 63J-6-202, which is renumbered from Section 63-61-2 is renumbered and amended to read:
[63-61-2
]. 63J-6-202. Issuance -- Financing plan required -- Contents -- Order setting terms of notes -- Recitations in notes -- Report of sales -- Disposition of proceeds.(1) If the state treasurer considers it to be in the best interests of the state to issue tax and revenue anticipation notes under Section [63-61-1] 63J-6-201, the state treasurer shall issue the notes in accordance with this chapter.
(2) (a) Prior to the issuance and sale of any tax or revenue anticipation note to other than a state fund or account, the state treasurer shall prepare a written plan of financing which shall be filed with the governor. The plan of financing shall provide for the terms and conditions under which the notes will be issued, sold, and delivered, the taxes or revenues to be anticipated, the maximum amount of notes which may be outstanding at any one time under the plan of financing, the sources of payment of the notes issued pursuant to the plan of financing, and all other details relating to the issuance, sale, and delivery of the notes. The sources of payment of the notes issued pursuant to the plan of financing may include the proceeds of sale of notes issued to refund outstanding tax or revenue anticipation notes and to pay accrued interest on them.
(b) The plan of financing shall specify the rates of interest, if any, on the notes or a method, formula, or index pursuant to which the interest rates on the notes may be determined during the time the notes are outstanding.
(c) The state treasurer may include in the plan of financing the terms and conditions of arrangements entered into by the state treasurer on behalf of the state with financial and other institutions for letters of credit, standby letters of credit, reimbursement agreements, and remarketing, indexing, and tender agent agreements to secure the tax anticipation notes, including payment from any legally available source of fees, charges, or other amounts coming due under the agreements entered into by the treasurer.
(3) The interest, form, manner of execution, payment, manner of sale, prices at, above, or below face value, and all details of issuance of the notes shall be set forth in an order of the state treasurer. The order and the details set forth in the order shall conform with any applicable plan of financing and with this chapter.
(4) Each note shall recite that it is a valid obligation of the state and that the faith and credit of the state are pledged for the payment of the principal of and interest on the note from the revenues of the fiscal year in which the note is issued in accordance with its terms and the constitution and laws of Utah.
(5) Immediately upon the completion of any sale, the state treasurer shall make a verified return of the sale to the state auditor, specifying the amount of notes sold, the persons to whom the notes were sold, and the price, terms, and conditions of the sale. Immediately upon the sale of any notes, the state treasurer shall credit the proceeds of sale, other than accrued interest, to the General Fund.
Section 1707. Section 63J-6-203, which is renumbered from Section 63-61-3 is renumbered and amended to read:
[63-61-3
]. 63J-6-203. Redemption fund -- Creation -- Sources -- Use -- Investment -- Income.(1) There is created a special fund to be known as the "Tax and Revenue Anticipation Note Redemption Fund," referred to in this chapter as the "redemption fund." When any notes have been issued in anticipation of income or revenue under this chapter, not less than two days before the principal and interest on the notes comes due, income or revenue realized from the tax or nontax sources specified in the approved plan of financing to be anticipated or from any other source or sources of monies legally available for such purpose shall be placed in the redemption fund so that the amount in the redemption fund is sufficient to pay the principal amount of all notes outstanding, together with interest on them.
(2) The money in the redemption fund is appropriated solely for the payment of the principal of and interest on the notes issued under this chapter. The payment of the principal and interest on the notes issued under this chapter is not limited solely to the income and revenues from the specific tax or nontax sources in anticipation of which the notes were issued. Accrued interest received upon the sale of the notes shall be deposited by the state treasurer in the redemption fund.
(3) The state treasurer may invest all money in the redemption fund in accordance with Title 51, Chapter 7, State Money Management Act of 1974, maturing at a time which will permit payment of the principal of and interest on the notes in a timely manner when due. The state treasurer may covenant with the purchasers of the notes as to the manner of holding money in the redemption fund, the investment of money in the redemption fund, and the disposition of any investment income therefrom by retaining investment income in the redemption fund to be used to pay principal of and interest on notes when due or by paying the investment income to the state treasurer for deposit into the General Fund. If there is sufficient money in the redemption fund to pay all principal of and interest on all outstanding notes payable therefrom, all investment income on it shall be paid to the state treasurer for deposit into the General Fund.
Section 1708. Section 63J-6-204, which is renumbered from Section 63-61-4 is renumbered and amended to read:
[63-61-4
]. 63J-6-204. Expenses of notes paid from proceeds.All expenses incident to the issuance of tax and revenue anticipation notes under this chapter shall be paid from the proceeds of sale of the notes credited to the General Fund.
Section 1709. Section 63K-1-101, which is renumbered from Section 63-5b-101 is renumbered and amended to read:
TITLE 63K. EMERGENCY MANAGEMENT
CHAPTER 1. EMERGENCY INTERIM SUCCESSION ACT
Part 1. General Provisions
[63-5b-101]. 63K-1-101. Title.
(1) This title is known as "Emergency Management."
(2) This chapter is known as the "Emergency Interim Succession Act."
Section 1710. Section 63K-1-102, which is renumbered from Section 63-5b-102 is renumbered and amended to read:
[63-5b-102
]. 63K-1-102. Definitions.(1) (a) "Absent" means:
(i) not physically present or not able to be communicated with for 48 hours; or
(ii) for local government officers, as defined by local ordinances.
(b) "Absent" does not include a person who can be communicated with via telephone, radio, or telecommunications.
(2) "Attack" means a nuclear, conventional, biological, or chemical warfare action against the United States of America or this state.
(3) "Department" means the Department of Administrative Services, the Department of Agriculture and Food, the Alcoholic Beverage Control Commission, the Department of Commerce, the Department of Community and Culture, the Department of Corrections, the Department of Environmental Quality, the Department of Financial Institutions, the Department of Health, the Department of Human Resource Management, the Department of Workforce Services, the Labor Commission, the National Guard, the Department of Insurance, the Department of Natural Resources, the Department of Public Safety, the Public Service Commission, the Department of Human Services, the State Tax Commission, the Department of Technology Services, the Department of Transportation, any other major administrative subdivisions of state government, the State Board of Education, the State Board of Regents, the Utah Housing Corporation, the Workers' Compensation Fund, the State Retirement Board, and each institution of higher education within the system of higher education.
(4) "Disaster" means a situation causing, or threatening to cause, widespread damage, social disruption, or injury or loss of life or property resulting from attack, internal disturbance, natural phenomenon, or technological hazard.
(5) "Division" means the Division of Homeland Security established in Title 53, Chapter 2, Part 1, Homeland Security Act.
(6) "Emergency interim successor" means a person designated by this chapter to exercise the powers and discharge the duties of an office when the person legally exercising the powers and duties of the office is unavailable.
(7) "Executive director" means the person with ultimate responsibility for managing and overseeing the operations of each department, however denominated.
(8) "Internal disturbance" means a riot, prison break, disruptive terrorism, or strike.
(9) "Natural phenomenon" means any earthquake, tornado, storm, flood, landslide, avalanche, forest or range fire, drought, epidemic, or other catastrophic event.
(10) (a) "Office" includes all state and local offices, the powers and duties of which are defined by constitution, statutes, charters, optional plans, ordinances, articles, or by-laws.
(b) "Office" does not include the office of governor or the legislative or judicial offices.
(11) "Place of governance" means the physical location where the powers of an office are being exercised.
(12) "Political subdivision" includes counties, cities, towns, townships, districts, authorities, and other public corporations and entities whether organized and existing under charter or general law.
(13) "Political subdivision officer" means a person holding an office in a political subdivision.
(14) "State officer" means the attorney general, the state treasurer, the state auditor, and the executive director of each department.
(15) "Technological hazard" means any hazardous materials accident, mine accident, train derailment, air crash, radiation incident, pollution, structural fire, or explosion.
(16) "Unavailable" means:
(a) absent from the place of governance during a disaster that seriously disrupts normal governmental operations, whether or not that absence or inability would give rise to a vacancy under existing constitutional or statutory provisions; or
(b) as otherwise defined by local ordinance.
Section 1711. Section 63K-1-201, which is renumbered from Section 63-5b-201 is renumbered and amended to read:
Part 2. Executive Branch Succession
[63-5b-201]. 63K-1-201. Emergency interim successor to office of governor.
(1) If the governor is unavailable, and if the lieutenant governor, president of the Senate, and the speaker of the House of Representatives are unavailable to exercise the powers and duties of the office of governor, the attorney general, state auditor, or state treasurer shall, in the order named, exercise the powers and duties of the office of governor until:
(a) the governor, lieutenant governor, president of the Senate, or speaker of the House of Representatives becomes available; or
(b) a new governor is elected and qualified.
(2) Notwithstanding the provisions of Subsection (1), no emergency interim successor to the lieutenant governor, president of the Senate, speaker of the House of Representatives, attorney general, state auditor, or state treasurer may serve as governor.
Section 1712. Section 63K-1-202, which is renumbered from Section 63-5b-202 is renumbered and amended to read:
[63-5b-202
]. 63K-1-202. Emergency interim successors for state officers.(1) By July 1 of each year, each state officer shall:
(a) designate three qualified emergency interim successors from within his department who meet the constitutional qualifications for the office, if any;
(b) specify their order of succession;
(c) provide a list of those designated successors to the division; and
(d) notify emergency interim successors within 30 days of designation.
(2) (a) If any state officer is unavailable following a disaster, and if his deputy, if any, is also unavailable, a designated emergency interim successor shall exercise the powers and duties of the office according to the order of succession specified by the state officer.
(b) An emergency interim successor other than the attorney general, state auditor, or state treasurer shall exercise the state officer's powers and duties only until:
(i) the person exercising the powers and duties of the office of governor appoints a successor to fill the vacancy;
(ii) a permanent successor is appointed or elected and qualified as provided by law; or
(iii) the state officer, his deputy, or an emergency interim successor earlier in the order of succession becomes available to exercise or resume the exercise of the powers and duties of the office.
(c) An emergency interim successor of the attorney general, state auditor, or state treasurer shall exercise the powers and duties of those offices only until:
(i) a permanent successor is appointed or elected and qualified as provided by law; or
(ii) the attorney general, state auditor, or state treasurer, their deputy, or an emergency interim successor earlier in the order of succession becomes available to exercise or resume the exercise of the powers and duties of the office.
Section 1713. Section 63K-1-301, which is renumbered from Section 63-5b-301 is renumbered and amended to read:
Part 3. Legislative and Judicial Branch Succession
[63-5b-301]. 63K-1-301. Division to consult with legislative and judicial branch.
The Division of Homeland Security may consult with the Legislative Management Committee, the Judicial Council, and legislative and judicial staff offices to assist them in preparing emergency succession plans and procedures.
Section 1714. Section 63K-1-302, which is renumbered from Section 63-5b-302 is renumbered and amended to read:
[63-5b-302
]. 63K-1-302. Place of legislative session.(1) (a) If the governor or his interim successor declares a state of emergency, the governor shall call the Legislature into session as soon as practicable.
(b) Each legislator shall proceed to the place of session as expeditiously as practicable.
(2) If the governor or his interim successor declares a state of emergency or finds that a state of emergency is imminent, and the governor or the interim successor determines that the prescribed place of session is unsafe, he may change the place of session to any place in Utah that he considers safe and convenient.
Section 1715. Section 63K-1-401, which is renumbered from Section 63-5b-401 is renumbered and amended to read:
Part 4. Local Succession
[63-5b-401]. 63K-1-401. Emergency interim successors for local officers.
(1) By July 1 of each year, each political subdivision officer shall:
(a) designate three emergency interim successors;
(b) specify their order of succession; and
(c) provide a list of those designated successors to the division.
(2) In the event that a political subdivision does not designate emergency interim successors as required under Subsection (1), the order of succession shall be as follows:
(a) the chief executive officer of the political subdivision;
(b) the chief deputy executive officer of the political subdivision;
(c) the chair of the legislative body of the political subdivision; and
(d) the chief law enforcement officer of the political subdivision.
(3) (a) Notwithstanding any other provision of law:
(i) if any political subdivision officer or his legal deputy, if any, is unavailable, a designated emergency interim successor shall exercise the powers and duties of the office according to the order of succession specified by the political subdivision officer; or
(ii) counties may provide by ordinance that one member of the county legislative body may act as the county legislative body if the other members are absent.
(b) An emergency interim successor shall exercise the powers and duties of the office only until:
(i) the vacancy is filled in accordance with the constitution or statutes; or
(ii) the political subdivision officer, his deputy, or an emergency interim successor earlier in the order of succession becomes available to exercise the powers and duties of the office.
(4) The legislative bodies of each political subdivision may enact resolutions or ordinances consistent with this chapter and also provide for emergency interim successors to officers of the political subdivision not governed by this section.
Section 1716. Section 63K-1-501, which is renumbered from Section 63-5b-501 is renumbered and amended to read:
Part 5. Succession Process
[63-5b-501]. 63K-1-501. Formalities of taking office.
(1) At the time that they are appointed as emergency interim successors or special emergency judges, emergency interim successors and special emergency judges shall sign prospectively whatever oath is required to enable them to exercise the powers and duties of the office to which they may succeed.
(2) Notwithstanding any other provision of law, no person is required to comply with any other provision of law relative to taking office as a prerequisite to the exercise of the powers or discharge of the duties of an office to which he succeeds.
Section 1717. Section 63K-1-502, which is renumbered from Section 63-5b-502 is renumbered and amended to read:
[63-5b-502
]. 63K-1-502. Period in which authority may be exercised.(1) Persons authorized to act as governor, emergency interim successors, and special emergency judges shall exercise the powers and duties of the office to which they succeed only when a disaster has occurred.
(2) (a) Emergency interim successors serve for 30 days after the date the governor or the governor's emergency successor calls the Legislature into special session, unless the unavailability of the elected official ends or an emergency interim successor earlier in the order of succession becomes available before expiration of the 30-day period.
(b) Notwithstanding the provisions of Subsection (a), if the emergency interim successor is serving for a legislator who is killed or resigns, the emergency interim successor shall serve until the legislator's legal replacement is sworn in.
(3) The Legislature, by concurrent resolution, may:
(a) terminate the authority of any or all emergency interim successors and special emergency judges to exercise the powers and duties of their office at any time; and
(b) extend the time during which any or all emergency interim successors and special emergency judges may exercise the powers and duties of their office.
Section 1718. Section 63K-1-503, which is renumbered from Section 63-5b-503 is renumbered and amended to read:
[63-5b-503
]. 63K-1-503. Removal of designees.Until the persons designated as emergency interim successors or special emergency judges succeed to the exercise of the powers and duties of an office, they shall serve as emergency interim successors or special emergency judges at the pleasure of the designating authority and may be removed and replaced by the designating authority at any time, with or without cause.
Section 1719. Section 63K-1-504, which is renumbered from Section 63-5b-504 is renumbered and amended to read:
[63-5b-504
]. 63K-1-504. Disputes.Except for factual disputes concerning the office of governor, the governor shall adjudicate any dispute concerning a question of fact arising under this chapter concerning a state officer. His decision is final.
Section 1720. Section 63K-1-601, which is renumbered from Section 63-5b-601 is renumbered and amended to read:
Part 6. Emergency Seat of Government
[63-5b-601]. 63K-1-601. Governor to declare location of emergency seat of government.
(1) Whenever, due to an emergency resulting from the effects of a disaster, it becomes imprudent, inexpedient, or impossible to conduct the affairs of the state government in Salt Lake City, Utah, the governor shall:
(a) by proclamation, declare an emergency temporary location for the seat of government in Utah; and
(b) take whatever action and issue whatever orders are necessary for an orderly transition of the affairs of the state government to that emergency temporary location.
(2) That emergency temporary location shall remain as the seat of government until the Legislature establishes a new location by law, or until the emergency is declared to be ended by the governor and the seat of government is returned to its normal location.
(3) Local governments may provide, by ordinance, for temporary emergency locations for the seat of government.
Section 1721. Section 63K-1-602, which is renumbered from Section 63-5b-602 is renumbered and amended to read:
[63-5b-602
]. 63K-1-602. Official acts at emergency seat of government -- Validity.During the time when the seat of government remains at an emergency location, all official acts required by law to be performed at the seat of government by any officer, agency, department, or authority of this state or local government, including the convening and meeting of the Legislature in regular, extraordinary, or emergency session, shall be as valid and binding as when performed at the normal location of the seat of government.
Section 1722. Section 63K-2-101 is enacted to read:
CHAPTER 2. ENERGY EMERGENCY POWERS OF THE GOVERNOR ACT
Part 1. General Provisions
63K-2-101. Title.
This chapter is known as the "Energy Emergency Powers of the Governor Act."
Section 1723. Section 63K-2-102, which is renumbered from Section 63-53a-2 is renumbered and amended to read:
[63-53a-2
]. 63K-2-102. Legislative findings and purpose.(1) The Legislature finds that the lack of energy resources and other energy resource emergencies may threaten the availability of essential services and transportation and the operation of the economy, jeopardizing the peace, health, safety, and welfare of the people of this state.
(2) The Legislature further finds that it is necessary to provide an orderly procedure for anticipating and responding to energy resource shortages and disruptions and to grant, under conditions prescribed in this act, emergency powers to the governor to order involuntary curtailments in the use of energy resources.
(3) The Legislature further finds and declares that it is the policy of this state to assist the United States in effective management and control of such factors and situations as contribute to an emergency affecting or likely to affect this state; to cooperate with other states in matters related to an emergency affecting or likely to affect this state; to meet extraordinary conditions in this state arising out of the crisis by taking such steps as are necessary and appropriate; and generally to protect the peace, health, safety, and welfare of the people of this state.
Section 1724. Section 63K-2-103, which is renumbered from Section 63-53a-1 is renumbered and amended to read:
[63-53a-1
]. 63K-2-103. "Energy resources" defined.As used in this act, "energy resources" includes electricity, natural gas, gasoline and middle distillates, coal, wood fuels, geothermal sources, radioactive materials, and any other resource yielding energy.
Section 1725. Section 63K-2-201, which is renumbered from Section 63-53a-3 is renumbered and amended to read:
Part 2. Energy Emergency Powers
[63-53a-3]. 63K-2-201. Information-gathering powers -- Subpoena power -- Coordination with other regulatory authorities.
(1) On a continuing basis the governor may obtain all necessary information from energy resource producers, manufacturers, suppliers, and consumers doing business within, and from political subdivisions in, this state as necessary to determine whether shortages or an emergency will require energy resource conservation measures. This information may include, but shall not be limited to:
(a) sales volumes;
(b) forecasts of energy resource requirements;
(c) from manufacturers, suppliers, and consumers, an inventory of energy resources; and
(d) local distribution patterns of the information described in Subsections (1)(a), (1)(b), and (1)(c).
(2) In obtaining information at any time from energy resource producers, manufacturers, suppliers, or consumers under Subsection (1)(c) and in obtaining any other information under Subsection (1) during a state of emergency proclaimed, the governor may subpoena witnesses, material and relevant books, papers, accounts, records, and memoranda, administer oaths, and cause the depositions of persons residing within or without the state to be taken in the manner prescribed for depositions in civil actions in district courts, to obtain information relevant to energy resources that are the subject of the proclaimed emergency.
(3) In obtaining information under this section the governor shall:
(a) seek to avoid eliciting information already furnished by a person or political subdivision in this state to a federal, state, or local regulatory authority that is available for his study; and
(b) cause reporting procedures, including forms, to conform to existing requirements of federal, state, and local regulatory authorities wherever possible.
Section 1726. Section 63K-2-202, which is renumbered from Section 63-53a-4 is renumbered and amended to read:
[63-53a-4
]. 63K-2-202. Confidential nature of information preserved -- Relief from subpoena -- Unauthorized disclosure as misdemeanor -- Removal from office.(1) Information furnished pursuant to Section [63-53a-3] 63K-2-201 and designated by that person as confidential shall be maintained as confidential by the governor and any person who obtains information which he knows to be confidential under this act. The governor shall not make known in any manner any particulars of such information to persons other than those specified in Subsection (4). No subpoena or judicial order may be issued compelling the governor or any other person to divulge or make known such confidential information, except when relevant to a prosecution for violation of Subsection (5).
(2) Nothing in this section shall prohibit the use of confidential information to prepare statistics or other general data for publication, so presented as to prevent identification of particular persons.
(3) Any person who is served with a subpoena to give testimony orally or in writing, or to produce books, papers, correspondence, memoranda, agreements, or other documents or records pursuant to this act may apply to any district court of this state for protection against abuse or hardship in the manner provided by law.
(4) References to the governor in this section include the governor and any other individuals designated for this purpose in writing by the governor.
(5) Any person who wilfully discloses confidential information in violation of this section is guilty of a class A misdemeanor and, in addition, may be subject to removal from office or immediate dismissal from public employment.
Section 1727. Section 63K-2-203, which is renumbered from Section 63-53a-5 is renumbered and amended to read:
[63-53a-5
]. 63K-2-203. Curtailment of energy use -- Standby priorities -- Restriction on involuntary curtailment.In consultation with appropriate federal and state officials and officials of political subdivisions in this state, the governor shall cause to be established, and revised as appropriate, standby priorities for curtailment in the use of energy resources. Involuntary curtailments, however, may be ordered only by means of executive orders issued pursuant to this act.
Section 1728. Section 63K-2-204, which is renumbered from Section 63-53a-6 is renumbered and amended to read:
[63-53a-6
]. 63K-2-204. Proclamation of emergency -- Effective period -- Extension of renewal by Legislature.(1) (a) The governor may issue a proclamation declaring that a state of emergency exists with regard to one or more energy resources if the governor determines that an existing or imminent severe disruption or impending shortage in the supply of one or more energy resources, in this state or elsewhere:
(i) threatens:
(A) the availability of essential services or transportation; or
(B) the operation of the economy; and
(ii) because of the threats described in Subsection (1)(a)(i), jeopardizes the peace, health, safety, and welfare of the people of this state.
(b) The proclamation declaring a state of emergency described in Subsection (1)(a) shall state with specificity the nature of the disruption or shortage in an energy resource.
(c) (i) Within seven calendar days of the day on which the governor issues a proclamation declaring a state of emergency under this section, the Legislative Management Committee shall:
(A) review the proclamation; and
(B) advise the governor on the proclamation.
(ii) The failure of the Legislative Management Committee to meet as required by Subsection (1)(c)(i) does not affect the validity of the proclamation declaring a state of emergency.
(2) (a) A proclamation issued under this section, and any order or rule issued as a result of the proclamation shall continue in effect until 60 days from the date of the proclamation of the state of emergency unless the governor rescinds the proclamation and declares the emergency ended prior to the expiration of this 60-day period.
(b) A proclamation issued within 30 days of the expiration of a prior proclamation for the same emergency shall be considered a renewal or extension subject to Subsection (3).
(3) A proclamation may be renewed or extended only by joint resolution of the Legislature.
Section 1729. Section 63K-2-205, which is renumbered from Section 63-53a-7 is renumbered and amended to read:
[63-53a-7
]. 63K-2-205. Curtailment, adjustment and allocation of energy use by executive orders -- Limitations and considerations in issuance and application.(1) Upon issuance of a proclamation pursuant to Section [63-53a-6] 63K-2-204, the governor in addition may by executive order:
(a) require reduction in energy resource usage and the application of conservation, prevention of waste, and the salvaging of energy resources and the materials, services, and facilities derived therefrom or dependent thereon, by state agencies and political subdivisions in this state;
(b) direct the establishment by state agencies and political subdivisions in this state of programs necessary to implement and comply with federal energy conservation programs where these programs have not theretofore been so established, including, but not limited to, allocation or rationing of energy resources and the distribution of the state's discretionary allotments;
(c) require involuntary curtailments, adjustments, or allocations in the supply and consumption of energy resources applicable to all suppliers and consumers including, but not limited to, specification of the times and manner in which these resources are supplied or consumed; or
(d) prescribe and direct activities promoting the conservation, prevention of waste, and salvage of energy resources and the materials, services, and facilities derived therefrom or dependent thereon, including, but not limited to, the modification of transportation routes and schedules, or the suspension of weight limits or other restrictions from the transportation of energy resources, to the extent permissible under federal law and regulations.
(2) Any restrictions, curtailments, adjustments, or allocations pursuant to Subsection (1) shall:
(a) be ordered and continue only so long as demonstrably necessary for the maintenance of essential services or transportation, or the continued operation of the economy but no longer than the duration of the proclamation;
(b) be applied as uniformly as practicable within each class of suppliers and consumers and without discrimination within a class; and
(c) give due consideration to the needs of commercial, retail, professional, and service establishments whose normal function is to supply goods or services or both of an essential nature, including, but not limited to, food, lodging, fuel, or medical care facilities during times of the day other than conventional daytime working hours.
Section 1730. Section 63K-2-206, which is renumbered from Section 63-53a-10 is renumbered and amended to read:
[63-53a-10
]. 63K-2-206. Other emergency powers of governor unaffected.The powers vested in the governor under this act shall be in addition to, and not in lieu of, any other emergency powers otherwise constitutionally or statutorily vested in the governor.
Section 1731. Section 63K-2-301, which is renumbered from Section 63-53a-8 is renumbered and amended to read:
Part 3. Implementation and Orders
[63-53a-8]. 63K-2-301. Existing agencies to be used in implementation.
The governor shall use, to the extent practicable, existing state boards, commissions, or agencies or officers or employees for the purpose of carrying out the provisions of this act.
Section 1732. Section 63K-2-302, which is renumbered from Section 63-53a-9 is renumbered and amended to read:
[63-53a-9
]. 63K-2-302. Enforcement of orders and rules.The governor may apply to any district court for appropriate equitable relief against any person violating or failing to carry out the provisions of this act or any order or rule issued pursuant to this act.
Section 1733. Section 63K-2-303, which is renumbered from Section 63-53a-11 is renumbered and amended to read:
[63-53a-11
]. 63K-2-303. Rules and regulations -- Approval by Legislature.The board, commission, or agency designated by the governor for carrying out the provisions of this act is authorized to promulgate such rules and regulations as are necessary for effective administration of this act with approval of the Legislature.
Section 1734. Section 63K-3-101 is enacted to read:
CHAPTER 3. EMERGENCY MANAGEMENT ACT
Part 1. General Provisions
63K-3-101. Title.
This chapter is known as the "Emergency Management Act."
Section 1735. Section 63K-3-102, which is renumbered from Section 63-5-2 is renumbered and amended to read:
[63-5-2
]. 63K-3-102. Definitions.As used in this chapter:
(1) "Disaster" means a situation causing, or threatening to cause, widespread damage, social disruption, or injury or loss of life or property resulting from attack, internal disturbance, natural phenomena or technological hazard.
(2) "Attack" means a nuclear, conventional, biological, or chemical warfare action against the United States of America or this state.
(3) "Internal disturbance" means a riot, prison break, disruptive terrorism or strike.
(4) "Natural phenomena" means any earthquake, tornado, storm, flood, landslide, avalanche, forest or range fire, drought, or epidemic.
(5) "Technological hazard" means any hazardous materials accident, mine accident, train derailment, air crash, radiation incident, pollution, structural fire or explosion.
Section 1736. Section 63K-3-201, which is renumbered from Section 63-5-4 is renumbered and amended to read:
Part 2. Advisory Counsel
[63-5-4]. 63K-3-201. Disaster Emergency Advisory Council created -- Function -- Composition -- Expenses.
(1) A Disaster Emergency Advisory Council is created to provide advice to the governor on matters relating to state government emergency disaster response and recovery actions and activities.
(2) The council shall meet at the call of the governor.
(3) The Disaster Emergency Advisory Council comprises the:
(a) lieutenant governor;
(b) attorney general;
(c) president of the Senate;
(d) speaker of the House of Representatives;
(e) heads of the following state agencies:
(i) Public Safety;
(ii) Division of Homeland Security;
(iii) Building Board; and
(iv) Governor's Office of Planning and Budget;
(f) executive directors of the following departments:
(i) Transportation;
(ii) Human Services;
(iii) Health;
(iv) Environmental Quality;
(v) Community and Economic Development; and
(vi) Natural Resources;
(g) representative of the National Guard appointed by the governor with the consent of the Senate;
(h) commissioner of agriculture and food;
(i) state planning coordinator; and
(j) representatives from two statewide, nongovernmental service organizations appointed by the governor with the consent of the Senate.
(4) The commissioner of Public Safety shall serve as the chair of the council.
(5) (a) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(b) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
Section 1737. Section 63K-3-301, which is renumbered from Section 63-5-5 is renumbered and amended to read:
Part 3. Hazardous Chemical Emergency Response Commission
[63-5-5]. 63K-3-301. Hazardous Chemical Emergency Response Commission -- Allocation of responsibilities -- Local planning committees -- Specified federal law considered law of state -- Application to federal agencies and facilities.
(1) (a) The commissioner of the Department of Public Safety and the executive director of the Department of Environmental Quality, or their respective designees, are designated as the state's Hazardous Chemical Emergency Response Commission for purposes of carrying out all requirements of the federal Emergency Planning and Community Right To Know Act of 1986.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(2) The Department of Public Safety has primary responsibility for all emergency planning activities under the federal Emergency Planning and Community Right To Know Act of 1986, and shall prepare policy and procedure and make rules necessary for implementation of that act in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) The Department of Environmental Quality has primary responsibility for receiving, processing, and managing hazardous chemical information and notifications under the federal Emergency Planning and Community Right To Know Act of 1986, including preparation of policy and procedure, and promulgation of rules necessary for implementation of that act. Funding for this program must be from the appropriation acts.
(4) The Department of Public Safety and the Department of Environmental Quality shall enter into an interagency agreement providing for exchange of information and coordination of their respective duties and responsibilities under this section.
(5) (a) The Hazardous Chemical Emergency Response Commission shall appoint a local planning committee for each local planning district that it establishes, as required by the federal Emergency Planning and Community Right To Know Act of 1986, and to the extent possible, shall use an existing local governmental organization as the local planning committee.
(b) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(6) Requirements of the federal Emergency Planning and Community Right To Know Act of 1986 pertaining to notification and submission of information are the law of this state, and apply equally to federal agencies, departments, installations, and facilities located in this state, as well as to other facilities that are subject to that act.
Section 1738. Section 63K-4-101 is enacted to read:
CHAPTER 4. DISASTER RESPONSE AND RECOVERY ACT
Part 1. General Provisions
63K-4-101. Title.
This chapter is known as the "Disaster Response and Recovery Act."
Section 1739. Section 63K-4-102, which is renumbered from Section 63-5a-1 is renumbered and amended to read:
[63-5a-1
]. 63K-4-102. Legislative findings -- Purpose -- Short title.(1) The legislature finds that existing and increasing threats of the occurrence of destructive disasters resulting from attack, internal disturbance, natural phenomenon or technological hazard could greatly affect the health, safety and welfare of the people of this state, and it is therefore necessary to grant to the governor of this state and its political subdivisions special emergency disaster authority.
(2) It is the purpose of this act to assist the governor of this state and its political subdivisions to effectively provide emergency disaster response and recovery assistance in order to protect the lives and property of the people. This act shall be known and cited as the "Disaster Response and Recovery Act."
Section 1740. Section 63K-4-103, which is renumbered from Section 63-5a-2 is renumbered and amended to read:
[63-5a-2
]. 63K-4-103. Definitions.(1) "Attack" means a nuclear, conventional, biological, or chemical warfare action against the United States of America or this state.
(2) "Chief executive officer" means:
(a) for a municipality:
(i) the mayor for a municipality operating under all forms of municipal government except the council-manager form of government; or
(ii) the city manager for a municipality operating under the council-manager form of government; or
(b) for a county:
(i) the chair of the county commission for a county operating under the county commission or expanded county commission form of government;
(ii) the county executive officer for a county operating under the county-executive council form of government; or
(iii) the county manager for a county operating under the council-manager form of government.
(3) "Disaster" means a situation causing, or threatening to cause, widespread damage, social disruption, or injury or loss of life or property resulting from attack, internal disturbance, natural phenomenon or technological hazard.
(4) "Internal disturbance" means a riot, prison break, disruptive terrorism or strike.
(5) "Local emergency" means a condition in any political subdivision of the state which requires that emergency assistance be provided by the affected political subdivision to save lives and protect property within its jurisdiction in response to a disaster, or to avoid or reduce the threat of a disaster.
(6) "Natural phenomenon" means any earthquake, tornado, storm, flood, landslide, avalanche, forest or range fire, drought, or epidemic.
(7) "Political subdivision" means municipality or county.
(8) "State of emergency" means a condition in any part of this state which requires state government emergency assistance to supplement the local efforts of the affected political subdivision to save lives and to protect property, public health, welfare, and safety in the event of a disaster or to avoid or reduce the threat of a disaster.
(9) "Technological hazard" means any hazardous materials accident, mine accident, train derailment, truck wreck, air crash, radiation incident, pollution, structural fire or explosion.
Section 1741. Section 63K-4-201, which is renumbered from Section 63-5a-3 is renumbered and amended to read:
Part 2. States of Emergency
[63-5a-3]. 63K-4-201. Authority of governor -- Federal assistance -- Fraud in application for financial assistance -- Penalty.
(1) In addition to any other authorities conferred upon the governor, the governor during the declared state of emergency is authorized and empowered to:
(a) utilize all available resources of state government as reasonably necessary to cope with a "state of emergency";
(b) employ measures and give direction to state and local officers and agencies which are reasonable and necessary for the purpose of securing compliance with the provisions of this act and with orders, rules and regulations made pursuant to this act;
(c) recommend and advise the evacuation of all or part of the population from any stricken or threatened area within the state if necessary for the preservation of life;
(d) recommend routes, modes of transportation, and destination in connection with evacuation;
(e) in connection with evacuation suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles, not to include the lawful bearing of arms;
(f) control ingress and egress to and from a disaster area, the movement of persons within the area, and recommend the occupancy or evacuation of premises in a disaster area;
(g) clear or remove from publicly or privately owned land or water through the use of state departments or agencies, debris or wreckage which may threaten public health, public safety, or private property as hereinafter provided:
(i) whenever the governor provides for clearance of debris or wreckage pursuant to this subsection, employees of the designated state agencies are authorized to enter upon private land or waters and perform any tasks necessary for the removal or clearance operation;
(ii) authority under this subsection shall not be exercised unless the affected political subdivision, corporation, organization or individual shall first present an unconditional authorization for removal of such debris or wreckage from private property and agree to indemnify the state government against any claim arising from such removal;
(h) recommend to the legislature additional action he deems necessary to carry out the provisions of this act.
(2) When the governor has proclaimed a "state of emergency" under this act and when the president of the United States, at the request of the governor, has declared an "emergency" or a "major disaster" to exist in this state, the governor is authorized:
(a) to enter into agreement with any agency of the United States for temporary housing units to be occupied by disaster victims and to make such units available to any political subdivision of this state;
(b) to assist any political subdivision of this state to acquire sites and utilities necessary for such temporary housing by passing through any funds made available to the governor by an agency of the United States for this purpose;
(c) to temporarily suspend or modify by proclamation, during the period of the emergency, any public health, safety, zoning, transportation or other requirement of the law or regulation within this state if such action is essential to provide temporary housing for disaster victims;
(d) upon determination that a political subdivision of the state will suffer a substantial loss of tax and other revenues because of a disaster and the political subdivision so affected has demonstrated a need for financial assistance to perform its governmental functions, in accordance with the provisions of the Utah Constitution, Article XIV, Sections 3 and 4, and Section 10-8-6, to apply to the federal government for a loan on behalf of the political subdivision, and to receive and disburse the proceeds to the applicant political subdivision. No application amount shall exceed 25% of the annual operating budget of the applicant political subdivision for the fiscal year in which the disaster occurs;
(e) to accept funds from the federal government and make grants to any political subdivision for the purpose of removing debris or wreckage from publicly owned land or water;
(f) upon determination that financial assistance is essential to meet disaster related expenses of individuals or families adversely affected by a disaster which cannot be sufficiently met from other means of assistance, to apply for, accept and expend a grant by the federal government to fund such financial assistance, subject to the terms and conditions imposed upon the grant.
(3) Any person who fraudulently or willfully makes a misstatement of fact in connection with an application for financial assistance under this section shall, upon conviction of each offense, be subject to a fine of not more than $5,000 or imprisonment for not more than one year, or both.
Section 1742. Section 63K-4-202, which is renumbered from Section 63-5a-4 is renumbered and amended to read:
[63-5a-4
]. 63K-4-202. Authority of chief executive officers of political subdivisions -- Ordering of evacuations.(1) (a) In order to protect life and property when a state of emergency or local emergency has been declared, the chief executive officer of each political subdivision of the state is authorized to:
(i) carry out, in the chief executive officer's jurisdiction, the measures as may be ordered by the governor under this chapter; and
(ii) take any additional measures the chief executive officer may consider necessary, subject to the limitations and provisions of this chapter.
(b) The chief executive officer may not take an action that is inconsistent with any order, rule, regulation, or action of the governor.
(2) When a state of emergency or local emergency is declared, the authority of the chief executive officer includes:
(a) utilizing all available resources of the political subdivision as reasonably necessary to manage a state of emergency or local emergency;
(b) employing measures and giving direction to local officers and agencies which are reasonable and necessary for the purpose of securing compliance with the provisions of this chapter and with orders, rules, and regulations made under this chapter;
(c) if necessary for the preservation of life, issuing an order for the evacuation of all or part of the population from any stricken or threatened area within the political subdivision;
(d) recommending routes, modes of transportation, and destinations in relation to an evacuation;
(e) suspending or limiting the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles in relation to an evacuation, except that the chief executive officer may not restrict the lawful bearing of arms;
(f) controlling ingress and egress to and from a disaster area, controlling the movement of persons within a disaster area, and ordering the occupancy or evacuation of premises in a disaster area;
(g) clearing or removing debris or wreckage that may threaten public health, public safety, or private property from publicly or privately owned land or waters, except that where there is no immediate threat to public health or safety, the chief executive officer shall not exercise this authority in relation to privately owned land or waters unless:
(i) the owner authorizes the employees of designated local agencies to enter upon the private land or waters to perform any tasks necessary for the removal or clearance; and
(ii) the owner provides an unconditional authorization for removal of the debris or wreckage and agrees to indemnify the local and state government against any claim arising from the removal; and
(h) invoking the provisions of any mutual aid agreement entered into by the political subdivision.
(3) (a) If the chief executive is unavailable to issue an order for evacuation under Subsection (2)(c), the chief law enforcement officer having jurisdiction for the area may issue an urgent order for evacuation, for a period not to exceed 36 hours, if the order is necessary for the preservation of life.
(b) The chief executive officer may ratify, modify, or revoke the chief law enforcement officer's order.
(4) Notice of an order or the ratification, modification, or revocation of an order issued under this section shall be:
(a) given to the persons within the jurisdiction by the most effective and reasonable means available; and
(b) filed in accordance with Subsection [63-5a-7] 63K-4-401(1).
Section 1743. Section 63K-4-203, which is renumbered from Section 63-5a-5 is renumbered and amended to read:
[63-5a-5
]. 63K-4-203. State of emergency -- Declaration -- Termination -- Commander-in-chief of military forces.(1) A "state of emergency" may be declared by proclamation of the governor after a proclamation of local emergency as provided under Section [63-5a-6] 63K-4-301 if the governor finds a disaster has occurred or the occurrence or threat of a disaster is imminent in any area of the state in which state government assistance is required to supplement the response and recovery efforts of the affected political subdivision or political subdivisions. The "state of emergency" shall continue until the governor finds the threat or danger has passed or the disaster reduced to the extent that emergency conditions no longer exist. No "state of emergency" may continue for longer than 30 days unless extended by joint resolution of the Legislature, which may also terminate a "state of emergency" by joint resolution at any time. The governor shall issue an executive order or proclamation ending the "state of emergency" on receipt of the Legislature's resolution. All executive orders or proclamations issued under this subsection shall state:
(a) the nature of the "state of emergency";
(b) the area or areas threatened;
(c) the conditions creating such an emergency or those conditions allowing termination of the "state of emergency."
(2) During the continuance of any "state of emergency" the governor is commander-in-chief of the military forces of the state in accordance with the provisions of Article VII, Section 4, of the Constitution of Utah, and Title 39, Chapter 1.
Section 1744. Section 63K-4-301, which is renumbered from Section 63-5a-6 is renumbered and amended to read:
Part 3. Local Emergencies
[63-5a-6]. 63K-4-301. Local emergency -- Declarations.
(1) (a) A local emergency may be declared by proclamation of the chief executive officer of a political subdivision.
(b) A local emergency shall not be continued or renewed for a period in excess of 30 days except by or with the consent of the governing body of the political subdivision.
(c) Any order or proclamation declaring, continuing, or terminating a local emergency shall be filed promptly with the office of the clerk of the affected political subdivision.
(2) A declaration of a local emergency:
(a) constitutes an official recognition that a disaster situation exists within the affected political subdivision;
(b) provides a legal basis for requesting and obtaining state or federal government disaster assistance;
(c) activates the response and recovery aspects of any and all applicable local disaster emergency plans; and
(d) authorizes the furnishing of aid and assistance in relation to the proclamation.
(3) A local emergency proclamation issued under this section shall state:
(a) the nature of the local emergency;
(b) the area or areas that are affected or threatened; and
(c) the conditions which caused the emergency.
Section 1745. Section 63K-4-401, which is renumbered from Section 63-5a-7 is renumbered and amended to read:
Part 4. Powers and Orders
[63-5a-7]. 63K-4-401. Orders, rules, and regulations having force of law -- Filing requirements -- Suspension of state agency rules.
(1) All orders, rules, and regulations promulgated by the governor, a political subdivision, or other agency authorized by this act to make orders, rules, and regulations, not in conflict with existing laws except as specifically provided herein, shall have the full force and effect of law during the state of emergency, when a copy of the order, rule, or regulation is filed with:
(a) the Division of Administrative Rules, if issued by the governor or a state agency; or
(b) the office of the clerk of the political subdivision, if issued by the chief executive officer of a political subdivision of the state or agency of the state.
(2) The governor may suspend the provisions of any order, rule, or regulation of any state agency, if the strict compliance with the provisions of the order, rule, or regulation would substantially prevent, hinder, or delay necessary action in coping with the emergency or disaster.
Section 1746. Section 63K-4-402, which is renumbered from Section 63-5a-8 is renumbered and amended to read:
[63-5a-8
]. 63K-4-402. Acquisition of property for public use -- Compensation of owners.(1) (a) Upon proclamation of a state of emergency, the governor may purchase or lease public or private property for public use including:
(i) food and medical supplies;
(ii) clothing;
(iii) shelter;
(iv) means of transportation;
(v) fuels;
(vi) oils; or
(vii) buildings or lands.
(b) The governor may not purchase private home storage nor privately owned arms.
(2) (a) The governor may use property purchased under authority of this section for any purpose to meet the needs of an emergency, including its use to relieve want, distress, and disease.
(b) Any property used by the governor to meet the needs of an emergency is a public use.
(3) (a) The governor shall compensate the owner of property taken or used under authority of this section by complying with the procedures established in Title 78, Chapter 34, Eminent Domain.
(b) The governor shall pay for those purchases or leases from the funds available to the Division of Homeland Security under:
(i) this chapter; or
(ii) Title 53, Chapter 2, Part 4, Disaster Recovery Funding Act, to the extent provided for in that chapter.
(4) Nothing in this section applies to or authorizes compensation for the destruction or damage of standing timber or other property in order to provide a fire break or to the release of waters or the breach of impoundments in order to reduce pressure or other danger from actual or threatened flood.
Section 1747. Section 63K-4-403, which is renumbered from Section 63-5a-9 is renumbered and amended to read:
[63-5a-9
]. 63K-4-403. Interstate agreements authorized -- Termination -- Mutual-aid compacts between subdivisions.(1) The governor is authorized to execute an interstate agreement or compact on behalf of this state with any other state or states only consistent with the powers herein granted concerning matters relating to a disaster affecting or likely to affect this state.
(2) The agreement or compact shall continue in force and remain binding on each party state until the Legislature or the governor of such party state takes action to withdraw therefrom. Such action shall not be effective until 30 days after notice thereof has been sent by the governor of such party state desiring to withdraw to the governors of all other party states.
(3) Political subdivisions are authorized to enter into mutual-aid compacts with other political subdivisions within the state of Utah concerning matters involving cooperative disaster response and recovery assistance support, consistent with this act.
Section 1748. Section 63K-4-404, which is renumbered from Section 63-5a-11 is renumbered and amended to read:
[63-5a-11
]. 63K-4-404. Authority additional to other emergency authority.The special disaster emergency authority vested in the governor and political subdivisions of the state pursuant to this act shall be in addition to, and not in lieu of, any other emergency authority otherwise constitutionally or statutorily vested in the governor and political subdivisions of the state.
Section 1749. Section 63L-1-101 is enacted to read:
TITLE 63L. LANDS
CHAPTER 1. FEDERAL JURISDICTION
Part 1. General Provisions
63L-1-101. Title.
(1) This title is known as "Lands."
(2) This chapter is known as "Federal Jurisdiction."
Section 1750. Section 63L-1-201, which is renumbered from Section 63-8-1 is renumbered and amended to read:
Part 2. Federal and State Jurisdiction
[63-8-1]. 63L-1-201. Jurisdiction over land acquired by United States -- Reservations by state -- Duration of jurisdiction.
Jurisdiction is hereby ceded to the United States in, to and over any and all lands or territory within this state which have heretofore been acquired by the United States by purchase, condemnation or otherwise for military or naval purposes and for forts, magazines, arsenals, dockyards and other needful buildings of every kind whenever authorized by Act of Congress, and in, to and over any and all lands or territory within this state now held by the United States under lease, use permit, or reserved from the public domain for any of the purposes aforesaid; this state, however, reserving the right to execute its process, both criminal and civil, within such territory. The jurisdiction so ceded shall continue so long as the United States shall own, hold or reserve land for any of the aforesaid purposes, or in connection therewith, and no longer.
Section 1751. Section 63L-1-202, which is renumbered from Section 63-8-2 is renumbered and amended to read:
[63-8-2
]. 63L-1-202. Governor to execute conveyances.The governor is hereby authorized and empowered to execute all proper conveyances in the cession herein granted, upon request of the United States or the proper officers thereof, whenever any land shall have been acquired, leased, used, or reserved from the public domain for such purposes.
Section 1752. Section 63L-1-203, which is renumbered from Section 63-8-3 is renumbered and amended to read:
[63-8-3
]. 63L-1-203. Jurisdiction over certain military reservations ceded -- Reservation.Jurisdiction is ceded to the United States in and over all lands comprised within the limits of the military reservations of Fort Douglas and Fort Duchesne in this state, to continue so long as the United States shall hold and own the same for military purposes or in connection therewith, and no longer; reserving, however, to this state the right to serve all civil process and such criminal process as may lawfully issue under the authority of this state against persons charged with crimes against the laws of this state committed within or without said reservations.
Section 1753. Section 63L-1-204, which is renumbered from Section 63-8-4 is renumbered and amended to read:
[63-8-4
]. 63L-1-204. Concurrent jurisdiction with United States -- Taxation of businesses on federal lands.(1) The state of Utah retains concurrent jurisdiction, both civil and criminal, with the United States over all lands affected by this act.
(2) The state and all of its political subdivisions also reserve the right to impose taxes on individuals, partnerships, corporations, associations, and all other business entities doing business on the lands affected by this chapter in respect to such business or on any property of these entities situated on these lands.
Section 1754. Section 63L-1-205, which is renumbered from Section 63-8-5 is renumbered and amended to read:
[63-8-5
]. 63L-1-205. Concurrent jurisdiction over certain minor violations at Dugway Proving Ground.The state of Utah hereby cedes to the United States, retaining also the same to itself, concurrent jurisdiction over class B and C misdemeanors and traffic violations no more serious than a class B misdemeanor within the following described boundaries in the Counties of Tooele and Juab, State of Utah, in the Salt Lake Meridian:
BEGINNING at the NE corner of Section 1, T8S, R9W;
1. Thence, South along the Range line between R8W and R9W, 9 miles and 2.57 chains to the SE corner of Section 13, T9S, R9W;
2. Thence, West, along the South line of Sections 13, 14, 15 and 16, T9S, R9W, 4 miles to the NE corner of Section 20, T9S, R9W;
3. Thence, South, along the East line of said Section 20 to the SE corner of said Section 20;
4. Thence, Southwesterly in a straight line to the Southwest corner of Section 31, T10S, R10W;
5. Thence, continuing Southwesterly along said line to a point in Section 1, T11S, R11W, said point bears 0.7 mile along said Southwesterly line from the SW corner of said Section 31;
6. Thence, Northwesterly, in a straight line from said point, to the SW corner of Section 34, T9S, R11W;
7. Thence, North along the West line of said Section 34 to the NW corner of said Section 34;
8. Thence, West along the South line of Sections 28 and 29, T9S, R11W, to the SE corner of Section 30, T9S, R11W;
9. Thence, Northwest in a straight line to the NE corner of Section 23, T9S, R12W;
10. Thence, West along the North line of Sections 23, 22, and projected Sections 21, 20 and 19 to the Range line between R12W and R13W;
11. Thence, South along said Range line to the South line of T10S;
12. Thence, West along last said Township line to the Range line common to R16W and R17W;
13. Thence, North along last said Range line to the West quarter corner of Section 6, T10S, R16W;
14. Thence, East along the East-West centerline of said Section 6 to the North-South centerline of said Section 6;
15. Thence, North along said North-South centerline to the North quarter corner of said Section 6;
16. Thence, East along the North line of said Section 6 to the NE corner of said Section 6;
17. Thence, North along the East line of Section 31, T9S, R16W, to the NE corner of the SE 1/4 SE 1/4 of said Section 31;
18. Thence, West along the North line of the S 1/2 S 1/2 of last said Section 31, T9S, R16W, to the West line of said Section 31;
19. Thence, North along said West line to the East-West line of last said Section 31;
20. Thence, East along said East-West line to the SE corner of the SW 1/4 NW 1/4 of last said Section 31;
21. Thence, North along the East line of said SW 1/4 NW 1/4 to the NE corner of SW 1/4 NW 1/4 of last said Section 31;
22. Thence, West along the North line of said SW 1/4 NW 1/4 to the NW corner of said SW 1/4 NW 1/4 of last said Section 31, said corner also being on the Range line common to R16W and R17W;
23. Thence, North along last said Range line to the NW corner of Section 6, T6S, R16W;
24. Thence, East along the North line of T6S to the NE corner of Section 1, T6S, R13W;
25. Thence, North along the West line of R13W to the NW corner of Section 6, T6S, R12W;
26. Thence, East along the North line of T6S to the NE corner of Section 1, T6S, R12W;
27. Thence, North along the Range line between R11W and R12W, 5 miles and 37.68 chains to the closing corner of T5S, R11W and T5S, R12W, said corner bears East 10.97 chains from the standard corner of T4S, R11W and T4S, R12W;
28. Thence, East along the Township line common to T4S and T5S, 6 miles and 74.49 chains to the divide crest of the Cedar Mountain Range;
29. Thence, Southeasterly, along or near the crest of the Cedar Mountain Range through T5S, R10W, T6S, R10W, and T6S, R9W, the following courses:
30. Thence, S 1° 29' W, 69.63 chains;
31. Thence, S 4° 18' E, 94.83 chains;
32. Thence, S 5° 21' E, 87.44 chains;
33. Thence, S 63° 27' E, 26.60 chains;
34. Thence, S 17° 15' E, 70.51 chains;
35. Thence, S 55° 37' E, 132.09 chains;
36. Thence, S 56° 22' E, 108.71 chains;
37. Thence, S 24° 31' E, 20.92 chains; to a point which bears West, 125.29 chains from the SW corner of T5S, R9W;
38. Thence, S 28° 06' E, 70.05 chains;
39. Thence, S 69° 15' E, 26.73 chains;
40. Thence, S 41° 32' E, 55.35 chains;
41. Thence, N 89° 19' E, 30.79 chains;
42. Thence, S 25° 40' E, 36.19 chains;
43. Thence, N 66° 24' E, 56.38 chains;
44. Thence, S 63° 17' E, 76.05 chains;
45. Thence, S 38° 48' E, 29.84 chains;
46. Thence, S 82° 20' E, 71.44 chains;
47. Thence, S 35° 07' E, 32.82 chains;
48. Thence, S 36° 24' W, 18.77 chains;
49. Thence, S 01° 41' W, 61.73 chains;
50. Thence, N 65° 19' E, 25.68 chains;
51. Thence, S 52° 59' E, 41.19 chains;
52. Thence, N 85° 57' E, 44.22 chains;
53. Thence, S 58° 52' E, 69.09 chains;
54. Thence, S 82° 14' E, 46.21 chains;
55. Thence, S 26° 06' E, 74.82 chains;
56. Thence, S 88° 42' E, 14.59 chains to a point on the Range line common to R8W and R9W, said point bears South 12.78 chains from the NW corner of Section 31, T6S, R8W;
57. Thence, leaving the Cedar Mountain Crest, South along said Range line common to R8W and R9W, 68.85 chains to the SW corner of T6S, R8W;
58. Thence, East along the Township line between Ts. 6 and 7 S., 4 miles, 9.5 chains, to the closing corner of Sections 2 and 3, T7S, R8W;
59. Thence, South, along Section line, 3 miles, 73.37 chains, to the corner of Sections 22, 23, 26 and 27, T7S, R8W;
60. Thence, West, along Section lines, 4 miles 0.45 chains, to the closing corner of Sections 19 and 30, on the West boundary of T7S, R8W;
61. Thence, South, along the Range lines between Rs. 8 and 9 W, 1 mile 37.14 chains to the Northeast corner of T8S, R9W, and the POINT OF BEGINNING.
TOGETHER with all that land in Section 36, T10S, R11W lying Southwesterly of the line described in Course No. 6 of this description.
EXCEPTING THEREFROM: NW 1/4 of Section 9, T8S, R13W; and the NE 1/4 SW 1/4 of Section 30, T10S, R16W.
The operative provisions of this section also apply to the property within the following described boundaries:
Township 6 South, Range 4 West, Salt Lake Meridian, Section 4, S 1/2; Section 5, Lots 3 and 4, S 1/2 NW 1/4 and S 1/2; Sections 6 to 9, inclusive; Section 15, W 1/2; Sections 16 to 21, inclusive; Section 22, W 1/2; Section 27, W 1/2; Sections 28 to 30.
Township 6 South, Range 5 West, Salt Lake Meridian, Sections 1 to 3, inclusive; Sections 11 to 14, inclusive; Sections 23 to 26, inclusive; those portions of Sections 4, 9, 10, 15, 22, and 27 lying East of the Union Pacific Railroad Right-of-Way, and situated within the boundary of the Deseret Chemical Depot (formerly St. John Ordnance Depot) County of Tooele, State of Utah, which lands were withdrawn from all forms of appropriation under the public land laws, including the mining and mineral leasing laws and reserved for use by the Department of Army (formerly War Department) as an Ordnance Storage Depot by the Public Land Order No. 15 dated July 21, 1942, and Public Land Order No. 66 dated November 30, 1942; and which are within the Rush Valley Unit of the Bonneville Grazing District No. 2, Utah.
Section 1755. Section 63L-1-206, which is renumbered from Section 63-8-6 is renumbered and amended to read:
[63-8-6
]. 63L-1-206. Concurrent jurisdiction.The state of Utah hereby accepts from the United States concurrent jurisdiction, both civil and criminal, with the United States over the following described boundaries in the county of Weber, state of Utah, in the Salt Lake Meridian:
(1) As described more particularly in Subsection (2), a part of Section 7 in Township 6 North, Range 1 West and a part of Section 12 in Township 6 North, Range 2 West.
(2) Beginning at a point South 0 degrees 46 minutes 27 seconds West 1540.37 feet and North 89 degrees 03 minutes 15 seconds West 258.80 feet and North 3 degrees 57 minutes 30 seconds West 10,877.85 feet and North 86 degrees 11 minutes 50 seconds East 80.74 feet and North 3 degrees 52 minutes 20 seconds West 655.22 feet from the Northeast corner of the Northwest Quarter of Section 19 in said Township 6 North, Range 1 West; said point also being North 89 degrees 03 minutes 15 seconds West 253.25 feet and North 3 degrees 57 minutes 30 seconds West 10,945.10 feet and North 86 degrees 11 minutes 50 seconds East 80.74 feet and North 3 degrees 52 minutes 20 seconds West 655.22 feet from the Ogden City survey monument at the intersection of the monument line of 12th Street and the East line of the Northwest Quarter of said Section 19; said point also being North 86 degrees 11 minutes 50 seconds East and North 3 degrees 52 minutes 20 seconds West 655.22 from the Southwest corner of the Ogden City property (parcel 11-023-0029):
(a) thence South 86 degrees 03 minutes 22 seconds West 2398.03 feet more or less along an existing fenceline separating properties used by Defense Depot Ogden and the U. S. Army Reserve to a point on the East line of 1200 West Street;
(b) thence North 1 degree 16 minutes 15 seconds East 66.27 feet along said East line of 1200 West Street;
(c) thence North 86 degrees 03 minutes 22 seconds East 2392.09 feet more or less to a point on the West line of the Weber-Ogden Fairgrounds Complex; and
(d) thence South 3 degrees 52 minutes 20 seconds East 66.00 feet along said West line of the Weber-Ogden Fairgrounds Complex to the point of beginning.
Section 1756. Section 63L-1-207, which is renumbered from Section 63-8-7 is renumbered and amended to read:
[63-8-7
]. 63L-1-207. Concurrent jurisdiction -- Utah Test and Training Range.The state of Utah cedes to the United States, retaining also the same to itself, concurrent jurisdiction within the following described boundaries in the county of Tooele, state of Utah, in the Salt Lake Base and Meridian, to continue so long as the United States owns, holds, or reserves the land for military purposes or in connection with military purposes, and no longer:
(1) Township 2 North, Range 15 West, all of:
(a) Section 16;
(b) Section 32;
(c) Section 36; and
(d) Section 2, Lots 1-4, S 1/2 N 1/2, S 1/2;
(2) Township 2 South, Range 14 West, all of:
(a) Section 32; and
(b) Section 36;
(3) Township 2 South, Range 15 West, all of:
(a) Section 36; and
(b) Section 32, W 1/2;
(4) Township 3 South, Range 15 West, all of:
(a) Section 16;
(b) Section 32;
(c) Section 36; and
(d) Section 2, Lots 1-4, S 1/2 N 1/2, S 1/2;
(5) Township 2 South, Range 16 West, all of:
(a) Section 32; and
(b) Section 36;
(6) Township 2 South, Range 17 West, all of:
(a) Section 32; and
(b) Section 36;
(7) Township 2 South, Range 18 West, all of Section 36;
(8) Township 3 South, Range 18 West, all of:
(a) Section 16;
(b) Section 32;
(c) Section 36; and
(d) Section 2, Lots 1-4, S 1/2 N 1/2, S 1/2;
(9) Township 3 South, Range 19 West, all of:
(a) Section 16;
(b) Section 32;
(c) Section 36; and
(d) Section 2, Lots 1-4, S 1/2 N 1/2, S 1/2; and
(10) Township 4 South, Range 19 West, all of:
(a) Section 16;
(b) Section 32;
(c) Section 36; and
(d) Section 2, Lots 1-4, S 1/2 N 1/2, S 1/2.
Section 1757. Section 63L-2-101 is enacted to read:
CHAPTER 2. TRANSFER OF STATE LANDS TO
UNITED STATES GOVERNMENT ACT
Part 1. General Provisions
63L-2-101. Title.
This chapter is known as the "Transfer of State Lands to United States Government Act."
Section 1758. Section 63L-2-201, which is renumbered from Section 63-34b-101 is renumbered and amended to read:
Part 2. Procedures for Acquisition of Property
[63-34b-101]. 63L-2-201. Federal government acquisition of real property in the state.
(1) As used in this section:
(a) "Agency" is defined in Section [63-38b-101] 63G-10-102.
(b) "Agency" includes:
(i) the School and Institutional Trust Lands Administration created in Section 53C-1-201; and
(ii) the School and Institutional Trust Lands Board of Trustees created in Section 53C-1-202.
(2) (a) Before legally binding the state by executing an agreement to sell or transfer to the United States government 10,000 or more acres of any state lands or school and institutional trust lands, an agency shall submit the agreement or proposal:
(i) to the Legislature for its approval or rejection; or
(ii) in the interim, to the Legislative Management Committee for review of the agreement or proposal.
(b) The Legislative Management Committee may:
(i) recommend that the agency execute the agreement or proposal;
(ii) recommend that the agency reject the agreement or proposal; or
(iii) recommend to the governor that he call a special session of the Legislature to review and approve or reject the agreement or proposal.
(3) Before legally binding the state by executing an agreement to sell or transfer to the United States government less than 10,000 acres of any state lands or school and institutional trust lands, an agency shall report to the Natural Resources, Agriculture, and Environment Interim Committee.
(4) Notwithstanding Subsections (2) and (3), the Legislature approves all conveyances of school trust lands to the United States government made for the purpose of completing the Red Cliffs Desert Reserve in Washington County.
Section 1759. Section 63L-3-101, which is renumbered from Section 63-90-1 is renumbered and amended to read:
CHAPTER 3. PRIVATE PROPERTY PROTECTION ACT
Part 1. General Provisions
[63-90-1]. 63L-3-101. Title.
This chapter [shall be] is known as the "Private Property Protection Act."
Section 1760. Section 63L-3-102, which is renumbered from Section 63-90-2 is renumbered and amended to read:
[63-90-2
]. 63L-3-102. Definitions.As used in this chapter:
(1) "Constitutional taking" or "taking" means a governmental action that results in a taking of private property so that compensation to the owner of the property is required by:
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(b) Utah Constitution Article I, Section 22.
(2) (a) "Governmental action" or "action" means:
(i) proposed rules and emergency rules by a state agency that if adopted and enforced may limit the use of private property unless:
(A) its provisions are in accordance with applicable state or federal statutes; and
(B) the agency has adopted and implemented the guidelines required by Section [63-90-3] 63L-3-201;
(ii) proposed or implemented licensing or permitting conditions, requirements, or limitations to the use of private property unless:
(A) its provisions are in accordance with applicable state or federal statutes, rules, or regulations; and
(B) the agency has adopted and implemented the guidelines required by Section [63-90-3] 63L-3-201;
(iii) required dedications or exactions from owners of private property; or
(iv) statutes and rules.
(b) "Governmental action" or "action" does not mean:
(i) activity in which the power of eminent domain is exercised formally;
(ii) repealing rules discontinuing governmental programs or amending rules in a manner that lessens interference with the use of private property;
(iii) law enforcement activity involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings;
(iv) school and institutional trust land management activities and disposal of land and interests in land conducted pursuant to Title 53C, Schools and Institutional Trust Lands Management Act;
(v) orders and enforcement actions that are issued by a state agency in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and applicable federal or state statutes; or
(vi) orders and enforcement actions that are issued by a court of law in accordance with applicable federal or state statutes.
(3) "Private property" means any school or institutional trust lands and any real or personal property in this state that is protected by:
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(b) Utah Constitution Article I, Section 22.
(4) (a) "State agency" means an officer or administrative unit of the executive branch of state government that is authorized by law to adopt rules.
(b) "State agency" does not include the legislative or judicial branches of state government.
(5) "Takings law" means the provisions of the federal and state constitutions, the case law interpreting those provisions, and any relevant statutory provisions that require a governmental unit to compensate a private property owner for a constitutional taking.
Section 1761. Section 63L-3-201, which is renumbered from Section 63-90-3 is renumbered and amended to read:
Part 2. Requirements for State Agencies
[63-90-3]. 63L-3-201. State agencies to adopt guidelines.
(1) Each state agency shall adopt guidelines to assist them in the identification of actions that have constitutional taking implications.
(2) In creating the guidelines, the state agency shall take into consideration recent court rulings on the taking of private property.
(3) Each state agency shall complete the guidelines on or before January 1, 1999, and review and update the guidelines annually to maintain consistency with court rulings.
Section 1762. Section 63L-3-202, which is renumbered from Section 63-90-4 is renumbered and amended to read:
[63-90-4
]. 63L-3-202. Agency actions.(1) Using the guidelines prepared under Section [63-90-3] 63L-3-201, each state agency shall:
(a) determine whether an action has constitutional taking implications; and
(b) prepare an assessment of constitutional taking implications that includes an analysis of the following:
(i) the likelihood that the action may result in a constitutional taking, including a description of how the taking affects the use or value of private property;
(ii) alternatives to the proposed action that may:
(A) fulfill the government's legal obligations of the state agency;
(B) reduce the impact on the private property owner; and
(C) reduce the risk of a constitutional taking; and
(iii) an estimate of financial cost to the state for compensation and the source of payment within the agency's budget if a constitutional taking is determined.
(2) In addition to the guidelines prepared under Section [63-90-3] 63L-3-201, each state agency shall adhere, to the extent permitted by law, to the following criteria if implementing or enforcing actions that have constitutional taking implications:
(a) If an agency requires a person to obtain a permit for a specific use of private property, any conditions imposed on issuing the permit shall directly relate to the purpose for which the permit is issued and shall substantially advance that purpose.
(b) Any restriction imposed on the use of private property shall be proportionate to the extent the use contributes to the overall problem that the restriction is to redress.
(c) If an action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.
(d) Before taking an action restricting private property use for the protection of public health or safety, the state agency, in internal deliberative documents, shall:
(i) clearly identify, with as much specificity as possible, the public health or safety risk created by the private property use;
(ii) establish that the action substantially advances the purpose of protecting public health and safety against the specifically identified risk;
(iii) establish, to the extent possible, that the restrictions imposed on the private property are proportionate to the extent the use contributes to the overall risk; and
(iv) estimate, to the extent possible, the potential cost to the government if a court determines that the action constitutes a constitutional taking.
(3) If there is an immediate threat to health and safety that constitutes an emergency and requires an immediate response, the analysis required by Paragraph (2)(b) of this section may be made when the response is completed.
(4) Before the state agency implements an action that has constitutional taking implications, the state agency shall submit a copy of the assessment of constitutional taking implications to the governor and the Legislative Management Committee.
Section 1763. Section 63L-4-101 is enacted to read:
CHAPTER 4. CONSTITUTIONAL TAKINGS ISSUES ACT
Part 1. General Provisions
63L-4-101. Title.
This chapter is known as the "Constitutional Takings Issues Act."
Section 1764. Section 63L-4-102, which is renumbered from Section 63-90a-1 is renumbered and amended to read:
[63-90a-1
]. 63L-4-102. Definitions.As used in this chapter:
(1) "Constitutional taking issues" means actions involving the physical taking or exaction of private real property by a political subdivision that might require compensation to a private real property owner because of:
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States;
(b) Article I, Section 22 of the Utah Constitution; or
(c) any recent court rulings governing the physical taking or exaction of private real property by a government entity.
(2) "Political subdivision" means a county, municipality, local district, special service district, school district, or other local government entity.
Section 1765. Section 63L-4-103, which is renumbered from Section 63-90a-2 is renumbered and amended to read:
[63-90a-2
]. 63L-4-103. Applicability of chapter.This chapter does not apply when a political subdivision formally exercises its power of eminent domain.
Section 1766. Section 63L-4-201, which is renumbered from Section 63-90a-3 is renumbered and amended to read:
Part 2. Requirements for Political Subdivisions
[63-90a-3]. 63L-4-201. Political subdivisions to adopt guidelines.
(1) Each political subdivision shall enact an ordinance establishing guidelines to assist them in identifying actions involving the physical taking or exaction of private real property that may have constitutional taking issues.
(2) Each political subdivision shall consider the guidelines required by this section when taking any action that might result in the physical taking or exaction of private real property.
(3) (a) The guidelines adopted under the authority of this section are advisory.
(b) A court may not impose liability upon a political subdivision for failure to comply with the guidelines required by this section.
(c) The guidelines neither expand nor limit the scope of any political subdivision's liability for a constitutional taking.
Section 1767. Section 63L-4-301, which is renumbered from Section 63-90a-4 is renumbered and amended to read:
Part 3. Appeals
[63-90a-4]. 63L-4-301. Appeals of decisions.
(1) Each political subdivision shall enact an ordinance that:
(a) establishes a procedure for review of actions that may have constitutional taking issues; and
(b) meets the requirements of this section.
(2) (a) (i) Any owner of private property whose interest in the property is subject to a physical taking or exaction by a political subdivision may appeal the political subdivision's decision within 30 days after the decision is made.
(ii) The legislative body of the political subdivision, or an individual or body designated by them, shall hear and approve or reject the appeal within 14 days after it is submitted.
(iii) If the legislative body of the political subdivision fails to hear and decide the appeal within 14 days, the decision is presumed to be approved.
(b) The private property owner need not file the appeal authorized by this section before bringing an action in any court to adjudicate claims that are eligible for appeal.
(c) A property owner's failure to appeal the action of a political subdivision does not constitute, and may not be interpreted as constituting, a failure to exhaust available administrative remedies or as a bar to bringing legal action.
Section 1768. Section 63L-5-101, which is renumbered from Section 63-90b-101 is renumbered and amended to read:
CHAPTER 5. UTAH RELIGIOUS LAND USE ACT
Part 1. General Provisions
[63-90b-101]. 63L-5-101. Title.
This chapter is known as the "Utah Religious Land Use Act."
Section 1769. Section 63L-5-102, which is renumbered from Section 63-90b-102 is renumbered and amended to read:
[63-90b-102
]. 63L-5-102. Definitions.As used in this chapter:
(1) "Free exercise of religion" means an act or refusal to act that is substantially motivated by sincere religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief, and includes the use, building, or conversion of real property for the purpose of religious exercise.
(2) "Government entity" means the state, a county, a municipality, a higher education institution, a local district, a special service district, any other political subdivision of the state, or any administrative subunit of any of them.
(3) "Land use regulation" means any state or local law or ordinance, whether statutory or otherwise, that limits or restricts a person's use or development of land or a structure affixed to land.
(4) "Person" means any individual, partnership, corporation, or other legal entity that owns an interest in real property.
Section 1770. Section 63L-5-201, which is renumbered from Section 63-90b-201 is renumbered and amended to read:
Part 2. Legal Standard
[63-90b-201]. 63L-5-201. Protection of land use as religious exercise.
(1) Except as provided in Subsection (2), a government entity may not impose or implement a land use regulation in a manner that imposes a substantial burden on a person's free exercise of religion.
(2) A government entity may impose or implement a land use regulation in a manner that imposes a substantial burden on a person's free exercise of religion if the government can establish that the imposition of the burden on that person:
(a) is in furtherance of a compelling governmental interest; and
(b) is the least restrictive means of furthering that compelling governmental interest.
(3) A government entity that meets the requirements of Subsection (2) need not separately prove that the remedy and penalty provisions of the land use regulation are the least restrictive means to ensure compliance or to punish the failure to comply.
(4) This act shall not impair the ability of local government to impose costs and fees reasonably necessary to mitigate the off-site impacts of development.
Section 1771. Section 63L-5-301, which is renumbered from Section 63-90b-301 is renumbered and amended to read:
Part 3. Remedies and Procedures
[63-90b-301]. 63L-5-301. Remedies.
(1) A person whose free exercise of religion has been substantially burdened by a government entity in violation of Section [63-90b-201] 63L-5-201 may bring an action in the district court of the county where the largest portion of the property subject to the land use regulation is located.
(2) Any person who asserts a claim or defense against a government entity under this chapter may request:
(a) declaratory relief;
(b) temporary or permanent injunctive relief to prevent the threatened or continued violation; or
(c) a combination of declaratory and injunctive relief.
(3) A person may not bring an action under this chapter against an individual, other than an action against an individual acting in the individual's official capacity as an officer of a government entity.
Section 1772. Section 63L-5-302, which is renumbered from Section 63-90b-302 is renumbered and amended to read:
[63-90b-302
]. 63L-5-302. Notice of claim -- Government's right to accommodate.(1) A person may not bring an action under Section [63-90b-301] 63L-5-301 unless, 60 days before bringing the action, the person sends written notice of the intent to bring an action.
(2) The notice shall be addressed to the government entity imposing the land use regulation, and shall be prepared and delivered according to the requirements of Subsection [63-30d-401] 63G-7-401(3).
(3) Mailing of the notice required by Subsection (1) tolls the limitation period for bringing an action under this chapter for a period of 75 days, starting on the day the notice was mailed.
(4) Notwithstanding Subsection (1), a person may bring an action under Section [63-90b-301] 63L-5-301 before the expiration of the 60-day notice period if:
(a) the imposition of a substantial burden on the person's free exercise of religion by the land use regulation is imminent; and
(b) the person was not informed of and did not otherwise have knowledge of the land use regulation in time to reasonably provide 60 days notice.
(5) (a) A government entity provided with the notice required by Subsection (2) may remedy the substantial burden on the person's free exercise of religion:
(i) before the expiration of the 60-day notice period; or
(ii) in the case of an action properly brought according to Subsection (4), before the adjudication of a court hearing on the action.
(b) Nothing in this section prevents a government entity from providing a remedy after these time periods.
(6) The court may not award compensatory damages, attorney's fees, costs, or other expenses to a person if the substantial burden has been cured by a remedy implemented by the government entity according to Subsection (5)(a).
Section 1773. Section 63L-5-401, which is renumbered from Section 63-90b-401 is renumbered and amended to read:
Part 4. Application
[63-90b-401]. 63L-5-401. Burden on exercise of religion as defense.
A person whose free exercise of religion has been substantially burdened in violation of this chapter may assert that violation as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought in the name of the state or by any other person.
Section 1774. Section 63L-5-402, which is renumbered from Section 63-90b-402 is renumbered and amended to read:
[63-90b-402
]. 63L-5-402. Establishment clause unaffected.(1) This chapter does not authorize government to burden a person's free exercise of religion.
(2) The protection of religious freedom afforded by this chapter is in addition to the protections provided under federal law and the constitutions of Utah and the United States.
(3) Nothing in this chapter may be construed to affect, interpret, or in any way address that portion of the First Amendment to the United States Constitution prohibiting laws respecting an establishment of religion.
Section 1775. Section 63L-5-403, which is renumbered from Section 63-90b-403 is renumbered and amended to read:
[63-90b-403
]. 63L-5-403. Application to certain cases.This chapter does not affect and is not intended to affect the authority of government entities to adopt or apply land use regulations that do not involve the free exercise of religion.
Section 1776. Section 63M-1-101, which is renumbered from Section 63-38f-101 is renumbered and amended to read:
TITLE 63M. GOVERNOR'S PROGRAMS
CHAPTER 1. GOVERNOR'S OFFICE OF ECONOMIC DEVELOPMENT
Part 1. General Provisions
[63-38f-101]. 63M-1-101. Title.
(1) This title is known as "Governor's Programs."
(2) This chapter is known as the "Governor's Office of Economic Development."
Section 1777. Section 63M-1-102, which is renumbered from Section 63-38f-102 is renumbered and amended to read:
[63-38f-102
]. 63M-1-102. Definitions.As used in this chapter:
(1) "Board" means the Board of Business and Economic Development.
(2) "Director" means the director of the office.
(3) "Office" means the Governor's Office of Economic Development.
Section 1778. Section 63M-1-201, which is renumbered from Section 63-38f-201 is renumbered and amended to read:
Part 2. Organization and Duties of the Governor's Office of Economic Development
[63-38f-201]. 63M-1-201. Creation of office.
(1) There is created the Governor's Office of Economic Development.
(2) The office shall:
(a) be responsible for economic development within the state;
(b) perform economic development planning for the state;
(c) administer and coordinate all state or federal grant programs which are, or become available, for economic development;
(d) administer any other programs over which the office is given administrative supervision by the governor;
(e) annually submit a report to the Legislature by October 1; and
(f) perform any other duties as provided by the Legislature.
(3) The office may solicit and accept contributions of moneys, services, and facilities from any other source, public or private, but may not use the moneys for publicizing the exclusive interest of the donor.
(4) Moneys received under Subsection (3) shall be deposited in the General Fund as dedicated credits of the office.
Section 1779. Section 63M-1-202, which is renumbered from Section 63-38f-202 is renumbered and amended to read:
[63-38f-202
]. 63M-1-202. Director of office -- Appointment -- Removal -- Compensation.(1) The office shall be administered, directed, controlled, organized, and managed by a director appointed by the governor.
(2) The director serves at the pleasure of the governor.
(3) The salary of the director shall be established by the governor within the salary range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
Section 1780. Section 63M-1-203, which is renumbered from Section 63-38f-203 is renumbered and amended to read:
[63-38f-203
]. 63M-1-203. Powers and duties of director.(1) The director, with the approval of the governor, may:
(a) by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, seek federal grants, loans, or participation in federal programs;
(b) enter into lawful contracts or agreements with other states, any chamber of commerce organization, and any service club; and
(c) annually prepare and submit to the governor a budget of the office's financial requirements.
(2) If any federal program requires the expenditure of state funds as a condition to participation by the state in any fund, property, or service, with the governor's approval, the director shall expend whatever funds are necessary out of the money provided by the Legislature for the use of the office.
Section 1781. Section 63M-1-204, which is renumbered from Section 63-38f-204 is renumbered and amended to read:
[63-38f-204
]. 63M-1-204. Organization of office -- Jurisdiction of director.(1) Unless otherwise expressly provided by statute, the director may organize the office in any fashion considered appropriate, including the appointment of deputy directors of the office.
(2) The director may make consolidations of personnel and service functions to effectuate efficiency and economy within the office.
Section 1782. Section 63M-1-205, which is renumbered from Section 63-38f-205 is renumbered and amended to read:
[63-38f-205
]. 63M-1-205. Interface with Public Service Commission.(1) The director or the director's designee shall:
(a) become generally informed of significant rate cases and policy proceedings before the Public Service Commission; and
(b) monitor and study the potential economic development impact of these proceedings before the Public Service Commission.
(2) In the discretion of the director or the director's designee, the office may appear in any proceeding before the Public Service Commission to testify, advise, or present argument regarding the economic development impact of any matter that is the subject of the proceeding.
Section 1783. Section 63M-1-301, which is renumbered from Section 63-38f-301 is renumbered and amended to read:
Part 3. Board of Business and Economic Development
[63-38f-301]. 63M-1-301. Board of Business and Economic Development.
There is created within the office the Board of Business and Economic Development which shall advise the office.
Section 1784. Section 63M-1-302, which is renumbered from Section 63-38f-302 is renumbered and amended to read:
[63-38f-302
]. 63M-1-302. Members -- Meetings -- Expenses.(1) (a) The board shall consist of 15 members appointed by the governor to four-year terms of office with the consent of the Senate.
(b) Notwithstanding the requirements of Subsection (1)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(c) The members may not serve more than two full consecutive terms except where the governor determines that an additional term is in the best interest of the state.
(2) Not more than eight members of the board may be from one political party.
(3) The members shall be representative of all areas of the state.
(4) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(5) Eight members of the board constitute a quorum for conducting board business and exercising board power.
(6) The governor shall select one of the board members as its chair.
(7) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
Section 1785. Section 63M-1-303, which is renumbered from Section 63-38f-303 is renumbered and amended to read:
[63-38f-303
]. 63M-1-303. Board duties and powers.(1) The board shall:
(a) promote and encourage the economic, commercial, financial, industrial, agricultural, and civic welfare of the state;
(b) do all lawful acts for the development, attraction, and retention of businesses, industries, and commerce within the state;
(c) promote and encourage the expansion and retention of businesses, industries, and commerce located in the state;
(d) support the efforts of local government and regional nonprofit economic development organizations to encourage expansion or retention of businesses, industries, and commerce located in the state;
(e) do other acts not specifically enumerated in this chapter, if the acts are for the betterment of the economy of the state;
(f) work in conjunction with companies and individuals located or doing business within the state to secure favorable rates, fares, tolls, charges, and classification for transportation of persons or property by:
(i) railroad;
(ii) motor carrier; or
(iii) other common carriers;
(g) recommend policies, priorities, and objectives to the office regarding the assistance, retention, or recruitment of business, industries, and commerce in the state; and
(h) recommend how any money or program administered by the office or its divisions for the assistance, retention, or recruitment of businesses, industries, and commerce in the state shall be administered, so that the money or program is equitably available to all areas of the state unless federal or state law requires or authorizes the geographic location of a recipient of the money or program to be considered in the distribution of the money or administration of the program.
(2) The board may:
(a) in furtherance of the authority granted under Subsection (1)(f), appear as a party litigant on behalf of individuals or companies located or doing business within the state in proceedings before regulatory commissions of the state, other states, or the federal government having jurisdiction over such matters; and
(b) make, amend, or repeal rules for the conduct of its business consistent with this part and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 1786. Section 63M-1-304, which is renumbered from Section 63-38f-304 is renumbered and amended to read:
[63-38f-304
]. 63M-1-304. Governor's Office of Economic Development -- Powers and duties of office -- Consulting with board on funds or services provided by office.(1) For the purposes of this section:
(a) "National recruitment" means the recruitment to the state of business, industry, or commerce if, at the time of the recruitment, the business, industry, or commerce is principally located in the United States.
(b) "Private entity" means a private person, corporation, company, or organization.
(2) (a) The office shall obtain the advice of the board prior to an imposition of or change to a policy, priority, or objective under which the office operates.
(b) Subsection (2)(a) does not apply to the routine administration by the office of funds or services related to assistance, retention, or recruitment of business, industry, or commerce in this state.
(3) The office shall:
(a) be the industrial promotion authority of the state;
(b) promote and encourage the economic, commercial, financial, industrial, agricultural, and civic welfare of the state;
(c) do all lawful acts to create, develop, attract, and retain business, industry, and commerce within the state; and
(d) do other acts that enhance the economy of the state.
(4) The office may:
(a) enter into contracts or agreements with, or make grants to, public or private entities, including municipalities, in the furtherance of its duties where the contracts or agreements are not in violation of the Constitution or statutes of the state; and
(b) receive and expend funds available from any source, public or private, in any manner and for any lawful purpose in the best interest of the state in the discharge of their obligations under this part.
(5) The director or the director's designee shall consult with the board at each meeting of the board regarding the administration by the office of funds or services related to assistance, retention, or recruitment of business, industry, or commerce in the state.
Section 1787. Section 63M-1-401, which is renumbered from Section 63-38f-401 is renumbered and amended to read:
Part 4. Enterprise Zone Act
[63-38f-401]. 63M-1-401. Title.
This part is known as the "Enterprise Zone Act."
Section 1788. Section 63M-1-402, which is renumbered from Section 63-38f-402 is renumbered and amended to read:
[63-38f-402
]. 63M-1-402. Definitions.As used in this part:
(1) "Business entity" means an entity:
(a) including a claimant, estate, or trust; and
(b) under which business is conducted or transacted.
(2) (a) "Claimant" means a resident or nonresident person that has:
(i) Utah taxable income as defined in Section 59-7-101; or
(ii) state taxable income under Title 59, Chapter 10, Part 1, Determination and Reporting of Tax Liability or Information.
(b) "Claimant" does not include an estate or trust.
(3) "County applicant" means the governing authority of a county that meets the requirements for designation as an enterprise zone under Section [63-38f-404] 63M-1-404.
(4) "Estate" means a nonresident estate or a resident estate that has state taxable income under Title 59, Chapter 10, Part 2, Trusts and Estates.
(5) "Municipal applicant" means the governing authority of a city or town that meets the requirements for designation as an enterprise zone under Section [63-38f-404] 63M-1-404.
(6) "Nonrefundable tax credit" or "tax credit" means a tax credit that a claimant, estate, or trust may:
(a) claim:
(i) as provided by statute; and
(ii) in an amount that does not exceed the claimant's, estate's, or trust's tax liability for a taxable year under:
(A) Title 59, Chapter 7, Corporate Franchise and Income Taxes; or
(B) Title 59, Chapter 10, Individual Income Tax Act; and
(b) carry forward or carry back:
(i) if allowed by statute; and
(ii) to the extent that the amount of the tax credit exceeds the claimant's, estate's, or trust's tax liability for a taxable year under:
(A) Title 59, Chapter 7, Corporate Franchise and Income Taxes; or
(B) Title 59, Chapter 10, Individual Income Tax Act.
(7) "Tax incentives" or "tax benefits" means the nonrefundable tax credits described in Section [63-38f-413] 63M-1-413.
(8) "Trust" means a nonresident trust or a resident trust that has state taxable income under Title 59, Chapter 10, Part 2, Trusts and Estates.
Section 1789. Section 63M-1-403, which is renumbered from Section 63-38f-403 is renumbered and amended to read:
[63-38f-403
]. 63M-1-403. Powers of the office.The office shall:
(1) monitor the implementation and operation of this part and conduct a continuing evaluation of the progress made in the enterprise zones;
(2) evaluate an application from a county applicant or a municipal applicant to be designated an enterprise zone and determine if the applicant qualifies for that designation;
(3) provide technical assistance to county applicants and municipal applicants in developing applications for designation as enterprise zones;
(4) assist county applicants and municipal applicants designated as enterprise zones in obtaining assistance from the federal government and agencies of the state;
(5) assist a qualified business in obtaining the benefits of an incentive or inducement program authorized by this part; and
(6) prepare an annual evaluation based, in part, on data provided by the State Tax Commission:
(a) evaluating the effectiveness of the program and any suggestions for legislation; and
(b) that is available upon request to the governor and to the Revenue and Taxation Interim Committee of the Legislature by November 1 of each year.
Section 1790. Section 63M-1-404, which is renumbered from Section 63-38f-404 is renumbered and amended to read:
[63-38f-404
]. 63M-1-404. Criteria for designation of enterprise zones -- Application.(1) A county applicant seeking designation as an enterprise zone shall file an application with the office that, in addition to complying with other requirements of this part:
(a) verifies that the entire county is not located in a metropolitan statistical area that is entirely located within Utah, except that this requirement does not apply to a third, fourth, fifth, or sixth class county as classified under Section 17-50-501;
(b) verifies that the county has a population of 50,000 or less; and
(c) provides clear evidence of the need for development in the county.
(2) A municipal applicant seeking designation as an enterprise zone shall file an application with the office that, in addition to complying with other requirements of this part:
(a) verifies that the municipality is a city of the fifth class or a town;
(b) verifies that the municipality is within a county that has a population of 50,000 or less; and
(c) provides clear evidence of the need for development in the municipality.
(3) An application filed under Subsection (1) or (2) shall be in a form and in accordance with procedures approved by the office, and shall include the following information:
(a) a plan developed by the county applicant or municipal applicant that identifies local contributions meeting the requirements of Section [63-38f-405] 63M-1-405;
(b) the county applicant or municipal applicant has a development plan that outlines:
(i) the types of investment and development within the zone that the county applicant or municipal applicant expects to take place if the incentives specified in this part are provided;
(ii) the specific investment or development reasonably expected to take place;
(iii) any commitments obtained from businesses;
(iv) the projected number of jobs that will be created and the anticipated wage level of those jobs;
(v) any proposed emphasis on the type of jobs created, including any affirmative action plans; and
(vi) a copy of the county applicant's or municipal applicant's economic development plan to demonstrate coordination between the zone and overall county or municipal goals;
(c) the county applicant's or municipal applicant's proposed means of assessing the effectiveness of the development plan or other programs to be implemented within the zone once they have been implemented;
(d) any additional information required by the office; and
(e) any additional information the county applicant or municipal applicant considers relevant to its designation as an enterprise zone.
Section 1791. Section 63M-1-405, which is renumbered from Section 63-38f-405 is renumbered and amended to read:
[63-38f-405
]. 63M-1-405. Qualifying local contributions.(1) An area may be designated as an enterprise zone only if the county applicant or municipal applicant agrees to make a qualifying local contribution.
(2) The qualifying local contribution may vary depending on available resources, and may include such elements as:
(a) simplified procedures for obtaining permits;
(b) dedication of available government grants;
(c) dedication of training funds;
(d) waiver of business license fees;
(e) infrastructure improvements;
(f) private contributions;
(g) utility rate concessions;
(h) small business incubator programs; or
(i) management assistance programs.
Section 1792. Section 63M-1-406, which is renumbered from Section 63-38f-406 is renumbered and amended to read:
[63-38f-406
]. 63M-1-406. Eligibility review.(1) (a) The office shall review and evaluate the applications submitted under Section [63-38f-404] 63M-1-404 and shall determine whether each county applicant or municipal applicant is eligible for designation as an enterprise zone.
(b) In determining whether a county applicant or municipal applicant is eligible, if unemployment, income, population, or other necessary data are not available for the county applicant or municipal applicant from the federal departments of labor or commerce or a state agency, the office may rely upon other data submitted by the applicant, if the office determines that it is statistically reliable or accurate.
(2) (a) The office shall designate enterprise zones.
(b) The office shall consider and evaluate an application using the following criteria:
(i) the pervasiveness of poverty, unemployment, and general distress in the proposed zone;
(ii) the extent of chronic abandonment, deterioration, or reduction in value of commercial, industrial, or residential structures in the proposed zone, and the extent of property tax arrearages in the proposed zone;
(iii) the potential for new investment and economic development in the proposed zone;
(iv) the county applicant's or municipal applicant's proposed use of other state and federal development funds or programs to increase the probability of new investment and development occurring;
(v) the extent to which the projected development in the zone will provide employment to residents of the county and particularly individuals who are unemployed or who are economically disadvantaged;
(vi) the degree to which the county applicant's or municipal applicant's application promotes innovative solutions to economic development problems and demonstrates local initiative; and
(vii) other relevant factors that the office specifies in its recommendation.
Section 1793. Section 63M-1-407, which is renumbered from Section 63-38f-407 is renumbered and amended to read:
[63-38f-407
]. 63M-1-407. Quarterly consideration.The office shall consider designating enterprise zones quarterly.
Section 1794. Section 63M-1-408, which is renumbered from Section 63-38f-408 is renumbered and amended to read:
[63-38f-408
]. 63M-1-408. Duration of designation.Each enterprise zone has a duration of five years, at the end of which the county may reapply for the designation.
Section 1795. Section 63M-1-409, which is renumbered from Section 63-38f-409 is renumbered and amended to read:
[63-38f-409
]. 63M-1-409. Contingent designations.(1) The office may accept applications for, and may at any time grant, a contingent designation of any county as an enterprise zone for purposes of seeking a designation of the county as a federally designated zone.
(2) This designation does not entitle a business operating in that county to the tax incentives under this part.
Section 1796. Section 63M-1-410, which is renumbered from Section 63-38f-410 is renumbered and amended to read:
[63-38f-410
]. 63M-1-410. Revocation of designations.(1) The office may revoke the designation of an enterprise zone, if no businesses utilize the tax incentives during any calendar year.
(2) Prior to that action, the office shall conduct a public hearing to determine reasons for inactivity and explore possible alternative actions.
Section 1797. Section 63M-1-411, which is renumbered from Section 63-38f-411 is renumbered and amended to read:
[63-38f-411
]. 63M-1-411. Disqualifying transfers.Except in counties of the first or second class, tax incentives provided by this part are not available to companies that close or permanently curtail operations in another part of the state in connection with a transfer of any part of its business operations to an enterprise zone, if the closure or permanent curtailment is reasonably expected to diminish employment in that part of the state.
Section 1798. Section 63M-1-412, which is renumbered from Section 63-38f-412 is renumbered and amended to read:
[63-38f-412
]. 63M-1-412. Business entities qualifying for tax incentives.The tax incentives described in this part are available only to a business entity for which at least 51% of the employees employed at facilities of the business entity located in the enterprise zone are individuals who, at the time of employment, reside in the county in which the enterprise zone is located.
Section 1799. Section 63M-1-413, which is renumbered from Section 63-38f-413 is renumbered and amended to read:
[63-38f-413
]. 63M-1-413. State tax credits.(1) Subject to the limitations of Subsections (2) through (4), the following nonrefundable tax credits against a tax under Title 59, Chapter 7, Corporate Franchise and Income Taxes, or Title 59, Chapter 10, Individual Income Tax Act, are applicable in an enterprise zone:
(a) a tax credit of $750 may be claimed by a business entity for each new full-time position filled for not less than six months during a given tax year;
(b) an additional $500 tax credit may be claimed if the new position pays at least 125% of:
(i) the county average monthly nonagricultural payroll wage for the respective industry as determined by the Department of Workforce Services; or
(ii) if the county average monthly nonagricultural payroll wage is not available for the respective industry, the total average monthly nonagricultural payroll wage in the respective county where the enterprise zone is located;
(c) an additional tax credit of $750 may be claimed if the new position is in a business entity that adds value to agricultural commodities through manufacturing or processing;
(d) an additional tax credit of $200 may be claimed for two consecutive years for each new employee who is insured under an employer-sponsored health insurance program if the employer pays at least 50% of the premium cost for two consecutive years;
(e) a tax credit of 50% of the value of a cash contribution to a private nonprofit corporation, except that the credit claimed may not exceed $100,000:
(i) that is exempt from federal income taxation under Section 501(c)(3), Internal Revenue Code;
(ii) whose primary purpose is community and economic development; and
(iii) that has been accredited by the board of directors of the Utah Rural Development Council;
(f) a tax credit of 25% of the first $200,000 spent on rehabilitating a building in the enterprise zone that has been vacant for two years or more; and
(g) an annual investment tax credit of 10% of the first $250,000 in investment, and 5% of the next $1,000,000 qualifying investment in plant, equipment, or other depreciable property.
(2) (a) Subject to the limitations of Subsection (2)(b), a business entity claiming a tax credit under Subsections (1)(a) through (d) may claim the tax credit for 30 full-time employee positions or less in each of its taxable years.
(b) A business entity that received a tax credit for its full-time employee positions under Subsections (1)(a) through (d) may claim an additional tax credit for a full-time employee position under Subsections (1)(a) through (d) if:
(i) the business entity creates a new full-time employee position;
(ii) the total number of full-time employee positions at the business entity is greater than the number of full-time employee positions previously claimed by the business entity under Subsections (1)(a) through (d); and
(iii) the total number of tax credits the business entity has claimed for its current taxable year, including the new full-time employee position for which the claimant, estate, or trust that is a business entity is claiming a tax credit, is less than or equal to 30.
(c) A business entity existing in an enterprise zone on the date of its designation shall calculate the number of full-time positions based on the average number of employees reported to the Department of Workforce Services.
(d) Construction jobs are not eligible for the tax credits under Subsections (1)(a) through (d).
(3) If the amount of a tax credit under this section exceeds a business entity's tax liability under this chapter for a taxable year, the amount of the tax credit exceeding the liability may be carried forward for a period that does not exceed the next three taxable years.
(4) (a) If a business entity is located in a county that met the requirements of Subsections [63-38f-404] 63M-1-404(1)(b) and (c) but did not qualify as an enterprise zone prior to January 1, 1998, because the county was located in a metropolitan statistical area in more than one state, the business entity:
(i) shall qualify for tax credits for a taxable year beginning on or after January 1, 1997, but beginning before December 31, 1997;
(ii) may claim a tax credit as described in Subsection (4)(a) in a taxable year beginning on or after January 1, 1997, but beginning before December 31, 1997; and
(iii) may qualify for tax credits for any taxable year beginning on or after January 1, 1998, if the county is designated as an enterprise zone in accordance with this part.
(b) If a business entity claims a tax credit under Subsection (4)(a)(ii), the business entity:
(i) may claim the tax credit by filing for the taxable year beginning on or after January 1, 1997, but beginning before December 31, 1997:
(A) a return under Title 59, Chapter 7, Corporate Franchise and Income Taxes;
(B) an amended return under Title 59, Chapter 7, Corporate Franchise and Income Taxes;
(C) a return under Title 59, Chapter 10, Individual Income Tax Act; or
(D) an amended return under Title 59, Chapter 10, Individual Income Tax Act; and
(ii) may carry forward the tax credit to a taxable year beginning on or after January 1, 1998, in accordance with Subsection (3).
(5) The tax credits under Subsections (1)(a) through (g) may not be claimed by a business entity engaged in retail trade or by a public utilities business.
(6) A business entity may not claim or carry forward a tax credit available under this part for a taxable year during which the business entity has claimed the targeted business income tax credit available under Section [63-38f-503] 63M-1-504.
Section 1800. Section 63M-1-414, which is renumbered from Section 63-38f-414 is renumbered and amended to read:
[63-38f-414
]. 63M-1-414. Annual report.(1) Each county applicant or municipal applicant designated as an enterprise zone shall annually report to the office regarding the economic activity that has occurred in the zone following the designation.
(2) This information shall include:
(a) the number of jobs created in the zone;
(b) the number of economically disadvantaged individuals receiving public job training assistance in the zone;
(c) the average wage level of the jobs created;
(d) descriptions of any affirmative action programs undertaken by the county applicant or municipal applicant in connection with the enterprise zone;
(e) the amount of the county applicant's or municipal applicant's local contribution; and
(f) the number of businesses qualifying for, or directly benefiting from, the local contribution.
Section 1801. Section 63M-1-415, which is renumbered from Section 63-38f-415 is renumbered and amended to read:
[63-38f-415
]. 63M-1-415. Indian tribes -- Application.(1) For purposes of this section:
(a) "Indian reservation" is as defined in Section 9-9-210.
(b) "Indian tribe" is as defined in Subsection 9-9-402(4).
(c) "Tribal applicant" means the governing authority of a tribe that meets the requirements for designation as an enterprise zone under Subsection (3).
(2) Indian tribes may apply for designation of an area within an Indian reservation as an enterprise zone.
(3) The tribal applicant shall follow the application procedure for a municipal applicant in this part except for the population requirement in Subsections [63-38f-404] 63M-1-404(2)(a) and (b).
Section 1802. Section 63M-1-416, which is renumbered from Section 63-38f-416 is renumbered and amended to read:
[63-38f-416
]. 63M-1-416. Technology-based service contracts within enterprise zones.(1) For purposes of this section:
(a) "Smart site enterprise" means a technology-based entity located within an enterprise zone that is eligible to receive financial support under the office's smart site program.
(b) "Smart site program" means a program of the office dedicated to the development of technology-based industry in rural Utah in which services that might otherwise be performed by state agencies are outsourced to a smart site enterprise.
(c) "State agency" means the:
(i) Department of Commerce;
(ii) Department of Workforce Services;
(iii) Department of Transportation;
(iv) Department of Health;
(v) Department of Administrative Services;
(vi) Department of Public Safety;
(vii) Utah State Tax Commission; and
(viii) Governor's Office of Economic Development.
(d) "Technology-based contract" means a contract between a state agency and a smart site enterprise for the smart site enterprise to provide the following services:
(i) software development and computer programming;
(ii) website design;
(iii) systems integration;
(iv) AutoCad/GIS mapping;
(v) help desk support, customer relationship management, and telephone or Internet surveys;
(vi) computer graphics, animation, or illustration;
(vii) medical billing, coding, transcription, and related medical informatics services;
(viii) data entry, data conversion, and imaging;
(ix) information technology training and e-learning;
(x) network development, management, service, and support;
(xi) telecommunications technologies;
(xii) database development and applications;
(xiii) multimedia and digital technologies, including DVD;
(xiv) technical writing;
(xv) insurance and benefits administration;
(xvi) data warehousing and storage or web hosting;
(xvii) billing services; and
(xviii) information technology consulting.
(2) The office has the following responsibilities for the smart site program authorized under this section:
(a) to provide market incentives identified in Subsection (4) to eligible state agencies and provide technical assistance as appropriate;
(b) to administer funding and initiate interagency transfers consistent with the provisions of this section;
(c) to provide state agencies with a listing of smart site enterprises;
(d) to designate a smart site program director and notify state agencies of the designation; and
(e) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules necessary to administer this section.
(3) A state agency has the following responsibilities if participating in the smart site program offered under this section:
(a) to enter into a memorandum of understanding with the office indicating the steps the agency shall take to encourage smart site enterprises to submit bids for technology-based contracts; and
(b) to submit to the office by no later than July 30, an accounting of all technology-based contracts awarded to smart site enterprises by the agency in the prior fiscal year.
(4) (a) A state agency is eligible for an interagency transfer from the office for up to 10% of all technology-based contracts awarded to a smart site enterprise under the office's smart site program.
(b) The office shall determine the amount of the interagency transfer as follows:
(i) if the total number of requests for interagency transfers under the program does not exceed the legislative appropriation for the fiscal year, each eligible agency shall receive a full 10% transfer; or
(ii) if the total number of requests for interagency transfers under the program exceeds the appropriation for the fiscal year, the office shall prorate the amount of each transfer based on the respective percentage of all technology-based contracts submitted to the office by all eligible state agencies.
(c) (i) After determining the amount of each agency's interagency transfer as required under Subsection (4)(b), the office shall transfer the amount to each agency's budget.
(ii) The office shall make the transfer no later than August 15 to supplement the agency's budget for the fiscal year beginning just prior to the interagency transfer.
(iii) An agency may use the interagency transfer it receives under this Subsection (4)(c) for any purpose related to the agency's mission or its duties and responsibilities, including the payment of incentives and award bonuses for participating in the smart site program.
(d) Funding for the interagency transfer under Subsection (4)(c) shall come from the prior fiscal year appropriation to the office.
(e) The appropriation to fund this section is nonlapsing to provide for the distribution process outlined in this Subsection (4).
Section 1803. Section 63M-1-501, which is renumbered from Section 63-38f-501 is renumbered and amended to read:
Part 5. Targeted Business Income Tax Credits Within an Enterprise Zone
[63-38f-501]. 63M-1-501. Definitions.
As used in this part:
(1) "Allocated cap amount" means the total amount of the targeted business income tax credit that a business applicant is allowed to claim for a taxable year that represents a pro rata share of the total amount of $300,000 for each fiscal year allowed under Subsection [63-38f-503] 63M-1-504(2).
(2) "Business applicant" means a business that:
(a) is a:
(i) claimant;
(ii) estate; or
(iii) trust; and
(b) meets the criteria established in Section [63-38f-502] 63M-1-503.
(3) (a) Except as provided in Subsection (3)(b), "claimant" means a resident or nonresident person.
(b) "Claimant" does not include an estate or trust.
(4) "Community investment project" means a project that includes one or more of the following criteria in addition to the normal operations of the business applicant:
(a) substantial new employment;
(b) new capital development; or
(c) a combination of both Subsections (4)(a) and (b).
(5) "Community investment project period" means the total number of years that the office determines a business applicant is eligible for a targeted business income tax credit for each community investment project.
(6) "Enterprise zone" means an area within a county or municipality that has been designated as an enterprise zone by the office under Part 4, Enterprise Zone Act.
(7) "Estate" means a nonresident estate or a resident estate.
(8) "Local zone administrator" means a person:
(a) designated by the governing authority of the county or municipal applicant as the local zone administrator in an enterprise zone application; and
(b) approved by the office as the local zone administrator.
(9) "Refundable tax credit" or "tax credit" means a tax credit that a claimant, estate, or trust may claim:
(a) as provided by statute; and
(b) regardless of whether, for the taxable year for which the claimant, estate, or trust claims the tax credit, the claimant, estate, or trust has a tax liability under:
(i) Title 59, Chapter 7, Corporate Franchise and Income Taxes; or
(ii) Title 59, Chapter 10, Individual Income Tax Act.
(10) "Targeted business income tax credit" means a refundable tax credit available under Section [63-38f-503] 63M-1-504.
(11) "Targeted business income tax credit eligibility form" means a document provided annually to the business applicant by the office that complies with the requirements of Subsection [63-38f-503] 63M-1-504(8).
(12) "Trust" means a nonresident trust or a resident trust.
Section 1804. Section 63M-1-502, which is renumbered from Section 63-38f-501.5 is renumbered and amended to read:
[63-38f-501.5
]. 63M-1-502. Rulemaking authority.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and for purposes of this section, the office shall make rules:
(1) to determine what constitutes:
(a) substantial new employment;
(b) new capital development; and
(c) a project; and
(2) to establish a formula for determining the allocated cap amount for each business applicant.
Section 1805. Section 63M-1-503, which is renumbered from Section 63-38f-502 is renumbered and amended to read:
[63-38f-502
]. 63M-1-503. Application for targeted business income tax credits.(1) (a) For taxable years beginning on or after January 1, 2002, a business applicant may elect to claim a targeted business income tax credit available under Section [63-38f-503] 63M-1-504 if the business applicant:
(i) is located in:
(A) an enterprise zone; and
(B) a county with:
(I) a population of less than 25,000; and
(II) an unemployment rate that for six months or more of each calendar year is at least one percentage point higher than the state average;
(ii) meets the requirements of Section [63-38f-412] 63M-1-412;
(iii) provides:
(A) a community investment project within the enterprise zone; and
(B) a portion of the community investment project during each taxable year for which the business applicant claims the targeted business tax incentive; and
(iv) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, is not engaged in the following, as defined by the State Tax Commission by rule:
(A) construction;
(B) retail trade; or
(C) public utility activities.
(b) For a taxable year for which a business applicant claims a targeted business income tax credit available under this part, the business applicant may not claim or carry forward a tax credit available under Section [63-38f-413] 63M-1-413, 59-7-610, or 59-10-1007.
(2) (a) A business applicant seeking to claim a targeted business income tax credit under this part shall file an application as provided in Subsection (2)(b) with the local zone administrator by no later than June 1 of the year in which the business applicant is seeking to claim a targeted business income tax credit.
(b) The application described in Subsection (2)(a) shall include:
(i) any documentation required by the local zone administrator to demonstrate that the business applicant meets the requirements of Subsection (1);
(ii) a plan developed by the business applicant that outlines:
(A) if the community investment project includes substantial new employment, the projected number and anticipated wage level of the jobs that the business applicant plans to create as the basis for qualifying for a targeted business income tax credit;
(B) if the community investment project includes new capital development, a description of the capital development the business applicant plans to make as the basis for qualifying for a targeted business income tax credit; and
(C) a description of how the business applicant's plan coordinates with:
(I) the goals of the enterprise zone in which the business applicant is providing a community investment project; and
(II) the overall economic development goals of the county or municipality in which the business applicant is providing a community investment project; and
(iii) any additional information required by the local zone administrator.
(3) (a) The local zone administrator shall:
(i) evaluate an application filed under Subsection (2); and
(ii) determine whether the business applicant is eligible for a targeted business income tax credit.
(b) If the local zone administrator determines that the business applicant is eligible for a targeted business income tax credit, the local zone administrator shall:
(i) certify that the business applicant is eligible for the targeted business income tax credit;
(ii) structure the targeted business income tax credit for the business applicant in accordance with Section [63-38f-503] 63M-1-504; and
(iii) monitor a business applicant to ensure compliance with this section.
(4) A local zone administrator shall report to the office by no later than June 30 of each year:
(a) (i) any application approved by the local zone administrator during the last fiscal year; and
(ii) the information established in Subsections [63-38f-503] 63M-1-504(4)(a) through (d) for each new business applicant; and
(b) (i) the status of any existing business applicants that the local zone administrator monitors; and
(ii) any information required by the office to determine the status of an existing business applicant.
(5) (a) By July 15 of each year, the department shall notify the local zone administrator of the allocated cap amount that each business applicant that the local zone administrator monitors is eligible to claim.
(b) By September 15 of each year, the local zone administrator shall notify, in writing, each business applicant that the local zone administrator monitors of the allocated cap amount determined by the office under Subsection (5)(a) that the business applicant is eligible to claim for a taxable year.
Section 1806. Section 63M-1-504, which is renumbered from Section 63-38f-503 is renumbered and amended to read:
[63-38f-503
]. 63M-1-504. Targeted business income tax credit structure -- Duties of the local zone administrator -- Duties of the State Tax Commission.(1) For taxable years beginning on or after January 1, 2002, a business applicant that is certified under Subsection [63-38f-502] 63M-1-503(3) and issued a targeted business tax credit eligibility form by the office under Subsection (8) may claim a refundable tax credit:
(a) against the business applicant's tax liability under:
(i) Title 59, Chapter 7, Corporate Franchise and Income Taxes; or
(ii) Title 59, Chapter 10, Individual Income Tax Act; and
(b) subject to requirements and limitations provided by this part.
(2) The total amount of the targeted business income tax credits allowed under this part for all business applicants may not exceed $300,000 in any fiscal year.
(3) (a) A targeted business income tax credit allowed under this part for each community investment project provided by a business applicant may not:
(i) be claimed by a business applicant for more than seven consecutive taxable years from the date the business applicant first qualifies for a targeted business income tax credit on the basis of a community investment project;
(ii) be carried forward or carried back;
(iii) exceed $100,000 in total amount for the community investment project period during which the business applicant is eligible to claim a targeted business income tax credit; or
(iv) exceed in any year that the targeted business income tax credit is claimed the lesser of:
(A) 50% of the maximum amount allowed by the local zone administrator; or
(B) the allocated cap amount determined by the office under Subsection [63-38f-502] 63M-1-503(5).
(b) A business applicant may apply to the local zone administrator to claim a targeted business income tax credit allowed under this part for each community investment project provided by the business applicant as the basis for its eligibility for a targeted business income tax credit.
(4) Subject to other provisions of this section, the local zone administrator shall establish for each business applicant that qualifies for a targeted business income tax credit:
(a) criteria for maintaining eligibility for the targeted business income tax credit that are reasonably related to the community investment project that is the basis for the business applicant's targeted business income tax credit;
(b) the maximum amount of the targeted business income tax credit the business applicant is allowed for the community investment project period;
(c) the time period over which the total amount of the targeted business income tax credit may be claimed;
(d) the maximum amount of the targeted business income tax credit that the business applicant will be allowed to claim each year; and
(e) requirements for a business applicant to report to the local zone administrator specifying:
(i) the frequency of the business applicant's reports to the local zone administrator, which shall be made at least quarterly; and
(ii) the information needed by the local zone administrator to monitor the business applicant's compliance with this Subsection (4) or Section [63-38f-502] 63M-1-503 that shall be included in the report.
(5) In accordance with Subsection (4)(e), a business applicant allowed a targeted business income tax credit under this part shall report to the local zone administrator.
(6) The amount of a targeted business income tax credit that a business applicant is allowed to claim for a taxable year shall be reduced by 25% for each quarter in which the office or the local zone administrator determines that the business applicant has failed to comply with a requirement of Subsection (3) or Section [63-38f-502] 63M-1-503.
(7) The office or local zone administrator may audit a business applicant to ensure:
(a) eligibility for a targeted business income tax credit; or
(b) compliance with Subsection (3) or Section [63-38f-502] 63M-1-503.
(8) The office shall issue a targeted business income tax credit eligibility form in a form jointly developed by the State Tax Commission and the office no later than 30 days after the last day of the business applicant's taxable year showing:
(a) the maximum amount of the targeted business income tax credit that the business applicant is eligible for that taxable year;
(b) any reductions in the maximum amount of the targeted business income tax credit because of failure to comply with a requirement of Subsection (3) or Section [63-38f-502] 63M-1-503;
(c) the allocated cap amount that the business applicant may claim for that taxable year; and
(d) the actual amount of the targeted business income tax credit that the business applicant may claim for that taxable year.
(9) (a) A business applicant shall retain the targeted business income tax credit eligibility form provided by the office under this Subsection (9).
(b) The State Tax Commission may audit a business applicant to ensure:
(i) eligibility for a targeted business income tax credit; or
(ii) compliance with Subsection (3) or Section [63-38f-502] 63M-1-503.
Section 1807. Section 63M-1-601, which is renumbered from Section 63-38f-601 is renumbered and amended to read:
Part 6. State Advisory Council on Science and Technology
[63-38f-601]. 63M-1-601. Purpose.
The purpose of this part is to establish an advisory council on science and technology to assist in the development of programs, communication, and use of science and technology in governmental organizations in the state.
Section 1808. Section 63M-1-602, which is renumbered from Section 63-38f-602 is renumbered and amended to read:
[63-38f-602
]. 63M-1-602. Definition of terms.As used in this part:
(1) "Adviser" means the state science adviser appointed under this part.
(2) "Council" means the State Advisory Council on Science and Technology created under this part.
(3) "Director" means the governor's director for economic development.
Section 1809. Section 63M-1-603, which is renumbered from Section 63-38f-603 is renumbered and amended to read:
[63-38f-603
]. 63M-1-603. Creation.There is created the State Advisory Council on Science and Technology within the Governor's Office of Economic Development, which shall perform the functions and duties provided in this part.
Section 1810. Section 63M-1-604, which is renumbered from Section 63-38f-604 is renumbered and amended to read:
[63-38f-604
]. 63M-1-604. Members -- Appointment -- Terms -- Qualifications -- Vacancies -- Chair and vice chair -- Executive secretary -- Executive committee -- Quorum -- Expenses.(1) The council comprises the following nonvoting members or their designees:
(a) the adviser;
(b) the executive director of the Department of Natural Resources;
(c) the executive director of the Department of Community and Culture;
(d) the executive director of the Department of Health;
(e) the executive director of the Department of Environmental Quality;
(f) the commissioner of agriculture and food;
(g) the commissioner of higher education;
(h) the state planning coordinator; and
(i) the executive director of the Department of Transportation.
(2) The governor may appoint other voting members, not to exceed 12.
(3) (a) Except as required by Subsection (3)(b), as terms of current council members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of council members are staggered so that approximately half of the council is appointed every two years.
(4) The governor shall consider all institutions of higher education in the state in the appointment of council members.
(5) The voting members of the council shall be experienced or knowledgeable in the application of science and technology to business, industry, or public problems and have demonstrated their interest in and ability to contribute to the accomplishment of the purposes of this part.
(6) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(7) (a) Each year the council shall select from its membership a chair and a vice chair.
(b) The chair and vice chair shall hold office for one year or until a successor is appointed and qualified.
(8) The adviser serves as executive secretary of the council.
(9) An executive committee shall be established consisting of the chair, vice chair, and the adviser.
(10) (a) In order to conduct business matters of the council at regularly convened meetings, a quorum consisting of a simple majority of the total voting membership of the council is required.
(b) All matters of business affecting public policy require not less than a simple majority of affirmative votes of the total membership.
(11) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Higher education members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Higher education members may decline to receive per diem and expenses for their service.
Section 1811. Section 63M-1-605, which is renumbered from Section 63-38f-605 is renumbered and amended to read:
[63-38f-605
]. 63M-1-605. Duties and powers.(1) The council shall:
(a) encourage the use of science and technology in the administration of state and local government;
(b) develop programs whereby state agencies and the several public and private institutions of higher education and technical colleges within the state may assist business and industry in the utilization of science and technology;
(c) further communication between agencies of federal, state, and local government who wish to utilize science and technology;
(d) develop programs of cooperation on matters of science and technology between:
(i) state and local government agencies;
(ii) the several public and private institutions of higher education and technical colleges within the state; and
(iii) business and industry within the state; or
(iv) between any combination of these;
(e) provide a means whereby government, business, industry, and higher education may be represented in the formulation and implementation of state policies and programs on matters of science and technology;
(f) review, catalog, and compile the research and development uses by the state universities of the revenue derived from mineral lease funds on state and federal lands;
(g) provide to the Legislature an annual report on the expenditure and utilization of these mineral lease funds;
(h) make recommendations to the Legislature on the further uses of these mineral lease funds in order to stimulate research and development directed toward the more effective utilization of the state's natural resources; and
(i) prepare and lodge an annual report with the governor and with the Legislature.
(2) The council may:
(a) in accordance with [Title 63, Chapter 40, Federal Assistance Management Program] Title 63J, Chapter 5, Federal Funds Procedures, apply for, receive, and disburse funds, contributions, or grants from whatever source for the purposes set forth in this part;
(b) employ, compensate, and prescribe the duties and powers of those individuals, subject to the provisions of this part relating to the adviser, necessary to execute the duties and powers of the council; and
(c) enter into contracts for the purposes of this part.
Section 1812. Section 63M-1-606, which is renumbered from Section 63-38f-606 is renumbered and amended to read:
[63-38f-606
]. 63M-1-606. Adviser -- Duties and powers.(1) The adviser shall be appointed by the governor.
(2) The adviser shall be experienced or knowledgeable in the application of science and technology to business, industry, or public problems and shall have demonstrated interest in or ability to contribute to the accomplishment of the purposes of this part.
(3) The adviser shall be compensated pursuant to the wage and salary classification plan for appointed officers of the state currently in effect.
(4) (a) The adviser shall have those duties and powers the council assigns.
(b) The adviser, with the advice of the council, may enter into contracts and agreements and may incur expenses necessary to fulfill the purposes of this part.
(5) The adviser shall be administratively responsible to the director of the office.
Section 1813. Section 63M-1-607, which is renumbered from Section 63-38f-607 is renumbered and amended to read:
[63-38f-607
]. 63M-1-607. Request for information.All departments, divisions, boards, commissions, agencies, institutions, and all other instrumentalities of the state shall, upon request of the council, provide the council with any information that these instrumentalities have concerning research in science and technology.
Section 1814. Section 63M-1-608, which is renumbered from Section 63-38f-608 is renumbered and amended to read:
[63-38f-608
]. 63M-1-608. Science education program.(1) (a) There is established an informal science and technology education program within the Governor's Office of Economic Development.
(b) The state science advisor shall act as the executive director of the program.
(c) The State Advisory Council on Science and Technology shall advise the program, including:
(i) approving all monies expended by the science and technology education program;
(ii) approving all operations of the program; and
(iii) making policies and procedures to govern the program.
(2) The program may:
(a) provide informal science and technology-based education to elementary and secondary students;
(b) expose public education students to college level science and technology disciplines;
(c) administer a science and technology camp program; and
(d) provide other informal promotion of science and technology education in this state, including the direct sponsorship of science fairs and science olympiads.
(3) The science and technology camp program described under Subsection (2)(c) shall be:
(a) provided exclusively for elementary and secondary students and their teachers;
(b) established as a grant program for camp providers; and
(c) administered based upon annual requests for proposals, a documented review process, and grant awards.
Section 1815. Section 63M-1-701, which is renumbered from Section 63-38f-702 is renumbered and amended to read:
Part 7. Centers for Excellence
[63-38f-702]. 63M-1-701. Title.
This part is known as the "Centers of Excellence Act."
Section 1816. Section 63M-1-702, which is renumbered from Section 63-38f-701 is renumbered and amended to read:
[63-38f-701
]. 63M-1-702. Purpose.(1) (a) The Legislature recognizes that the growth of new industry and expansion of existing industry requires a strong technology base, new ideas, concepts, innovations, and prototypes.
(b) These generally come from strong research colleges and universities.
(c) Technical research in Utah's colleges and universities should be enhanced and expanded, particularly in those areas targeted by the state for economic development.
(d) Most states are enhancing their research base by direct funding, usually on a matching basis.
(e) The purpose of this part is to catalyze and enhance the growth of these technologies by encouraging interdisciplinary research activities in targeted areas and by facilitating the transition of these technologies out of the university environment into industry where the technologies can be used to enhance job creation.
(f) The Legislature recognizes that one source of funding is in matching state funds with federal funds and industrial support to provide the needed new technologies.
(2) The Legislature recommends that the governor consider the allocation of economic development funds for Centers of Excellence to be matched by industry and federal grants on at least a two-for-one basis for colleges and universities in the state that offer any doctoral degrees.
(3) (a) The Legislature recommends that the funds be allocated on a competitive basis to the various colleges and universities in the state and to companies working in partnership with colleges and universities to commercialize their technologies.
(b) The funds made available should be used to support interdisciplinary research in specialized Centers of Excellence in technologies that are considered to have potential for economic development in this state and to help transition these technologies out of the colleges and universities into industry.
Section 1817. Section 63M-1-703, which is renumbered from Section 63-38f-703 is renumbered and amended to read:
[63-38f-703
]. 63M-1-703. Definitions.As used in this part:
(1) "Business team consultant" means an experienced technology executive, entrepreneur, or business person who:
(a) is recruited by the office through a request for proposal process to work directly with a college or university in the Centers for Excellence program; and
(b) works with the institution to facilitate the transition of its technology into industry by assisting the institution in developing strategies, including spin out strategies when appropriate, and go-to-market plans, and identifying and working with potential customers and partners.
(2) "Centers of excellence" means university-based, federal and industry-supported, cooperative research and development programs.
(3) "Direct license" means the licensing between a company and a Utah college or university of technology developed at the college or university for the intent of commercializing the technology or facilitating its transition into industry.
(4) "Licensee" means:
(a) a company that executes or is in the process of executing a direct license; or
(b) a sublicensee of the technology from a direct license.
Section 1818. Section 63M-1-704, which is renumbered from Section 63-38f-704 is renumbered and amended to read:
[63-38f-704
]. 63M-1-704. Administration -- Grants.(1) The Governor's Office of Economic Development shall administer this part.
(2) (a) The office may award Centers of Excellence grants to the various colleges, universities, and licensees in the state for the purposes of this part.
(b) The governor's Office of Economic Development shall develop a process to determine whether a college or university that receives a grant under this part must return the grant proceeds or a portion of the grant proceeds if the technology that is developed with the grant proceeds is licensed to a licensee that:
(i) does not maintain a manufacturing or service location in the state from which the licensee or a sublicensee exploits the technology; or
(ii) initially maintains a manufacturing or service location in the state from which the licensee or a sublicensee exploits the technology, but within five years after issuance of the license the licensee or sublicensee transfers the manufacturing or service location for the technology to a location out of the state.
(c) A repayment by a college or university of grant proceeds or a portion of the grant proceeds shall come only from the proceeds of the license established between the licensee and the college or university.
(d) (i) A licensee that receives a grant under this part shall return the grant proceeds or a portion of the grant proceeds to the office if the licensee:
(A) does not maintain a manufacturing or service location in the state from which the licensee exploits the technology; or
(B) initially maintains a manufacturing or service location in the state from which the licensee exploits the technology, but within five years after issuance of the grant the licensee transfers the manufacturing or service location for the technology to an out of state location.
(ii) A repayment by a licensee that receives a grant shall come only from the proceeds of the license to that licensee.
(iii) A repayment by a licensee shall be prorated based only on the number of full years the licensee operated in the state from the date of the awarded grant.
(3) (a) Funding allocations shall be made by the office with the advice of the State Advisory Council for Science and Technology and the board.
(b) Each proposal shall receive the best available outside review.
(4) (a) In considering each proposal, the office shall weigh technical merit, the level of matching funds from private and federal sources, and the potential for job creation and economic development.
(b) Proposals or consortia that combine and coordinate related research at two or more colleges and universities shall be encouraged.
(5) The State Advisory Council on Science and Technology shall review the activities and progress of grant recipients on a regular basis and assist the office in preparing an annual report on the accomplishments and direction of the Centers of Excellence Program.
Section 1819. Section 63M-1-705, which is renumbered from Section 63-38f-705 is renumbered and amended to read:
[63-38f-705
]. 63M-1-705. Business team consultants.(1) The office may enter into work agreements with business team consultants through a request for proposal process to participate in the Centers for Excellence program.
(2) Under a work agreement, a business team consultant shall assist a college or university in facilitating the transition of its technology into industry.
Section 1820. Section 63M-1-801, which is renumbered from Section 63-38f-801 is renumbered and amended to read:
Part 8. Shared Foreign Sales Corporations
[63-38f-801]. 63M-1-801. Creation of shared foreign sales corporations.
The office may create one or more shared foreign sales corporations, qualifying as such under Section 927(g), Internal Revenue Code of 1986, and may name directors or managers of these corporations at its discretion.
Section 1821. Section 63M-1-802, which is renumbered from Section 63-38f-802 is renumbered and amended to read:
[63-38f-802
]. 63M-1-802. Management fees.(1) All expenses incurred in establishing and maintaining shared foreign sales corporations shall be initially paid for by the office but shall be reimbursed to the office by the participants in each shared foreign sales corporation created under Section [63-38f-801] 63M-1-801 on a pro rata basis determined by the office.
(2) The office may charge the participants management fees that are reasonable to maintain and manage each of the shared foreign sales corporations.
(3) All monies obtained by the office in excess of office expenditures in connection with the management of shared foreign sales corporations may be used at the discretion of the office for the office's other activities in promoting exporting.
(4) The fees collected and the expenditures made shall be reported to the Legislature each year.
Section 1822. Section 63M-1-901, which is renumbered from Section 63-38f-901 is renumbered and amended to read:
Part 9. Industrial Assistance Fund
[63-38f-901]. 63M-1-901. Purpose statement.
The Legislature finds and declares that the fostering and development of industry in Utah is a state public purpose necessary to assure the welfare of its citizens, the growth of its economy, and adequate employment for its citizens.
Section 1823. Section 63M-1-902, which is renumbered from Section 63-38f-902 is renumbered and amended to read:
[63-38f-902
]. 63M-1-902. Definitions.As used in this part:
(1) "Administrator" means the director or the director's designee.
(2) "Board" means the Board of Business and Economic Development.
(3) "Company creating an economic impediment" means a company that discourages economic development within a reasonable radius of its location because of:
(a) odors;
(b) noise;
(c) pollution;
(d) health hazards; or
(e) other activities similar to those described in Subsections (3)(a) through (d).
(4) "Economic opportunities" means unique business situations or community circumstances which lend themselves to the furtherance of the economic interests of the state by providing a catalyst or stimulus to the growth or retention, or both, of commerce and industry in the state.
(5) "Economically disadvantaged rural area" means a geographic area designated by the board under Section [63-38f-909] 63M-1-910.
(6) "Fund" means the restricted account known as the Industrial Assistance Fund created in Section [63-38f-903] 63M-1-903.
(7) "Replacement company" means a company locating its business or part of its business in a location vacated by a company creating an economic impediment.
(8) "Targeted industry" means an industry or group of industries targeted by the board under Section [63-38f-909] 63M-1-910, for economic development in the state.
Section 1824. Section 63M-1-903, which is renumbered from Section 63-38f-903 is renumbered and amended to read:
[63-38f-903
]. 63M-1-903. Industrial Assistance Fund created.(1) There is created within the General Fund a restricted account known as the Industrial Assistance Fund of which:
(a) up to 50% shall be used in economically disadvantaged rural areas; and
(b) up to 20% may be used to take timely advantage of economic opportunities as they arise.
(2) The fund shall be administered by the administrator under the policy direction of the board.
(3) The administrator may hire appropriate support staff.
(4) The cost of administering the fund shall be paid from monies in the fund.
(5) Interest accrued from investment of monies in the fund shall remain in the fund.
Section 1825. Section 63M-1-904, which is renumbered from Section 63-38f-903.5 is renumbered and amended to read:
[63-38f-903.5
]. 63M-1-904. Rural Fast Track Program -- Creation -- Funding -- Qualifications for program participation -- Awards -- Reports.(1) (a) There is created the Rural Fast Track Program, hereafter referred to in this section as "the program."
(b) The program is a funded component of the economically disadvantaged rural areas designation in Subsection [63-38f-903] 63M-1-903(1)(a).
(2) The purpose of the program is to provide an efficient way for small companies in rural Utah to receive incentives for creating high paying jobs in the rural areas of the state and to further promote business and economic development in rural Utah.
(3) (a) Twenty percent of the money in the Industrial Assistance Fund at the beginning of each fiscal year shall be used to fund the program.
(b) The 20% referred to in Subsection (3)(a) is not in addition to but is a part of the up to 50% designation for economically disadvantaged rural areas referred to in Subsection [63-38f-903] 63M-1-903(1)(a).
(c) If any of the 20% allocation referred to in Subsection (3)(a) has not been used in the program by the end of the third quarter of each fiscal year, that money may be used for any other loan, grant, or assistance program offered through the Industrial Assistance Fund during the fiscal year.
(4) (a) To qualify for participation in the program a company shall:
(i) complete and file with the office an application for participation in the program, signed by an officer of the company;
(ii) be located and conduct its business operations in a county in the state that has:
(A) a population of less than 30,000; and
(B) an average household income of less than $60,000 as reflected in the most recently available data collected and reported by the United States Census Bureau;
(iii) have been in business in the state for at least two years; and
(iv) have at least two employees.
(b) (i) Office staff shall verify an applicant's qualifications under Subsection (4)(a).
(ii) The application must be approved by the administrator in order for a company to receive an incentive or other assistance under this section.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the administrator may make rules governing:
(i) the content of the application form referred to in Subsection (4)(a)(i);
(ii) who qualifies as an employee under Subsection (4)(a)(iv); and
(iii) the verification procedure referred to in Subsection (4)(b).
(5) (a) The administrator shall make incentive cash awards to small companies under this section based on the following criteria:
(i) $1,000 for each new incremental job that pays over 110% of the county's average annual wage;
(ii) $1,250 for each incremental job that pays over 115% of the county's average annual wage; and
(iii) $1,500 for each incremental job that pays over 125% of the county's average annual wage.
(b) The administrator shall make a cash award under Subsection (5)(a) when a new incremental job has been in place for at least 12 months.
(c) The creation of a new incremental job by a company is based on the number of employees at the company during the previous 24 months.
(d) (i) A small company may also apply for grants, loans, or other financial assistance under the program to help develop its business in rural Utah and may receive up to $50,000 under the program if approved by the administrator.
(ii) The board must approve a distribution that exceeds the $50,000 cap under Subsection (5)(d)(i).
(6) The administrator shall make a quarterly report to the board of the awards made by the administrator under this section and an annual report to the Legislative Workforce Services and Community and Economic Development Interim Committee as to the awards and their impact on economic development in the state's rural areas.
Section 1826. Section 63M-1-905, which is renumbered from Section 63-38f-904 is renumbered and amended to read:
[63-38f-904
]. 63M-1-905. Loans, grants, and assistance -- Repayment -- Earned credits.(1) (a) A company that qualifies under Section [63-38f-905] 63M-1-906 may receive loans, grants, or other financial assistance from the fund for expenses related to establishment, relocation, or development of industry in Utah.
(b) A company creating an economic impediment that qualifies under Section [63-38f-907] 63M-1-908 may in accordance with this part receive loans, grants, or other financial assistance from the fund for the expenses of the company creating an economic impediment related to:
(i) relocation to a rural area in Utah of the company creating an economic impediment; and
(ii) the siting of a replacement company.
(c) An entity offering an economic opportunity that qualifies under Section [63-38f-908] 63M-1-909 may:
(i) receive loans, grants, or other financial assistance from the fund for expenses related to the establishment, relocation, retention, or development of industry in the state; and
(ii) include infrastructure or other economic development precursor activities that act as a catalyst and stimulus for economic activity likely to lead to the maintenance or enlargement of the state's tax base.
(2) (a) Subject to Subsection (2)(b), the administrator has authority to determine the structure, amount, and nature of any loan, grant, or other financial assistance from the fund.
(b) Loans made under Subsection (2)(a) shall be structured so the intended repayment or return to the state, including cash or credit, equals at least the amount of the assistance together with an annual interest charge as negotiated by the administrator.
(c) Payments resulting from grants awarded from the fund shall be made only after the administrator has determined that the company has satisfied the conditions upon which the payment or earned credit was based.
(3) (a) (i) Except as provided in Subsection (3)(b), the administrator may provide for a system of earned credits that may be used to support grant payments or in lieu of cash repayment of a fund loan obligation.
(ii) The value of the credits described in Subsection (3)(a)(i) shall be based on factors determined by the administrator, including:
(A) the number of Utah jobs created;
(B) the increased economic activity in Utah; or
(C) other events and activities that occur as a result of the fund assistance.
(b) (i) The administrator shall provide for a system of credits to be used to support grant payments or in lieu of cash repayment of a fund loan when loans are made to a company creating an economic impediment.
(ii) The value of the credits described in Subsection (3)(b)(i) shall be based on factors determined by the administrator, including:
(A) the number of Utah jobs created;
(B) the increased economic activity in Utah; or
(C) other events and activities that occur as a result of the fund assistance.
(4) (a) A cash loan repayment or other cash recovery from a company receiving assistance under this section, including interest, shall be deposited into the fund.
(b) The administrator and the Division of Finance shall determine the manner of recognizing and accounting for the earned credits used in lieu of loan repayments or to support grant payments as provided in Subsection (3).
(5) (a) At the end of each fiscal year, the unrestricted, undesignated General Fund balance after the transfers of surplus of General Fund revenues described in this Subsection (5)(a) shall be earmarked to the Industrial Assistance Fund in an amount equal to any credit that has accrued under this part. The earmark required by this Subsection (5)(a) shall be made after the transfer of surplus General Fund revenues is made:
(i) to the General Fund Budget Reserve Account as provided in Section [63-38-2.5] 63J-1-202; and
(ii) beginning with the fiscal year ending June 30, 2007, as provided in Section [63-38-2.7] 63J-1-204.
(b) These credit amounts may not be used for purposes of the fund as provided in this part until appropriated by the Legislature.
Section 1827. Section 63M-1-906, which is renumbered from Section 63-38f-905 is renumbered and amended to read:
[63-38f-905
]. 63M-1-906. Qualification for assistance.(1) Except as provided in Section [63-38f-907] 63M-1-908 or Section [63-38f-908] 63M-1-909, the administrator shall determine which industries, companies, and individuals qualify to receive monies from the fund. Except as provided by Subsection (2), to qualify for financial assistance from the fund, an applicant shall:
(a) demonstrate to the satisfaction of the administrator that the applicant will expend funds in Utah with employees, vendors, subcontractors, or other businesses in an amount proportional with monies provided from the fund at a minimum ratio of 2 to 1 per year or other more stringent requirements as established from time to time by the board for a minimum period of five years beginning with the date the loan or grant was approved;
(b) demonstrate to the satisfaction of the administrator the applicant's ability to sustain economic activity in the state sufficient to repay, by means of cash or appropriate credits, the loan provided by the fund; and
(c) satisfy other criteria the administrator considers appropriate.
(2) (a) The administrator may exempt an applicant from the requirements of Subsection (1)(a) or (b) if:
(i) the financial assistance is provided to an applicant for the purpose of locating all or any portion of its operations to an economically disadvantaged rural area;
(ii) the applicant is part of a targeted industry;
(iii) the applicant is a quasi-public corporation organized under Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, or Title 63E, Chapter 2, Independent Corporations Act, and its operations, as demonstrated to the satisfaction of the administrator, will provide significant economic stimulus to the growth of commerce and industry in the state; or
(iv) the applicant is an entity offering an economic opportunity under Section [63-38f-908] 63M-1-909.
(b) The administrator may not exempt the applicant from the requirement under Subsection [63-38f-904] 63M-1-905(2)(b) that the loan be structured so that the repayment or return to the state equals at least the amount of the assistance together with an annual interest charge.
(3) The administrator shall:
(a) for applicants not described in Subsection (2)(a):
(i) make findings as to whether or not each applicant has satisfied each of the conditions set forth in Subsection (1); and
(ii) monitor the continued compliance by each applicant with each of the conditions set forth in Subsection (1) for five years;
(b) for applicants described in Subsection (2)(a), make findings as to whether the economic activities of each applicant has resulted in the creation of new jobs on a per capita basis in the economically disadvantaged rural area or targeted industry in which the applicant is located;
(c) monitor the compliance by each applicant with the provisions of any contract or agreement entered into between the applicant and the state as provided in Section [63-38f-906] 63M-1-907; and
(d) make funding decisions based upon appropriate findings and compliance.
Section 1828. Section 63M-1-907, which is renumbered from Section 63-38f-906 is renumbered and amended to read:
[63-38f-906
]. 63M-1-907. Agreements.The administrator shall enter into agreements with each successful applicant that have specific terms and conditions for each loan or assistance, including:
(1) repayment schedules;
(2) interest rates;
(3) specific economic activity required to qualify for the loan or assistance or for repayment credits;
(4) collateral or security, if any; and
(5) other terms and conditions considered appropriate by the administrator.
Section 1829. Section 63M-1-908, which is renumbered from Section 63-38f-907 is renumbered and amended to read:
[63-38f-907
]. 63M-1-908. Financial assistance to companies that create economic impediments.(1) (a) The administrator may provide monies from the fund to a company creating an economic impediment if that company:
(i) applies to the administrator;
(ii) relocates to a rural area in Utah; and
(iii) meets the qualifications of Subsection (1)(b).
(b) Except as provided by Subsection (2), to qualify for financial assistance from the fund, a company creating an economic impediment shall:
(i) demonstrate to the satisfaction of the administrator that the company creating an economic impediment, its replacement company, or in the aggregate the company creating the economic impediment and its replacement company:
(A) will expend funds in Utah with employees, vendors, subcontractors, or other businesses in an amount proportional with monies provided from the fund at a minimum ratio of 2 to 1 per year or other more stringent requirements as established from time to time by the board for a minimum period of five years beginning with the date the loan or grant was approved; and
(B) can sustain economic activity in the state sufficient to repay, by means of cash or appropriate credits, the loan provided by the fund; and
(ii) satisfy other criteria the administrator considers appropriate.
(2) (a) The administrator may exempt a company creating an economic impediment from the requirements of Subsection (1)(b)(i)(A) if:
(i) the financial assistance is provided to a company creating an economic impediment for the purpose of locating all or any portion of its operations to an economically disadvantaged rural area; or
(ii) its replacement company is part of a targeted industry.
(b) The administrator may not exempt a company creating an economic impediment from the requirement under Subsection [63-38f-904] 63M-1-905(2)(b) that the loan be structured so that the repayment or return to the state equals at least the amount of the assistance together with an annual interest charge.
(3) The administrator shall:
(a) make findings as to whether or not a company creating an economic impediment, its replacement company, or both, have satisfied each of the conditions set forth in Subsection (1);
(b) monitor the compliance by a company creating an economic impediment, its replacement company, or both, with:
(i) each of the conditions set forth in Subsection (1); and
(ii) any contract or agreement under Section [63-38f-906] 63M-1-907 entered into between:
(A) the company creating an economic impediment; and
(B) the state; and
(c) make funding decisions based upon appropriate findings and compliance.
Section 1830. Section 63M-1-909, which is renumbered from Section 63-38f-908 is renumbered and amended to read:
[63-38f-908
]. 63M-1-909. Financial assistance to entities offering economic opportunities.(1) Subject to the duties and powers of the board under Section [63-38f-303] 63M-1-303, the administrator may provide monies from the fund to an entity offering an economic opportunity if that entity:
(a) applies to the administrator; and
(b) meets the qualifications of Subsection (2).
(2) The applicant shall:
(a) demonstrate to the satisfaction of the administrator the nature of the economic opportunity and the related benefit to the economic well-being of the state by providing evidence documenting the logical and compelling linkage, either direct or indirect, between the expenditure of monies necessitated by the economic opportunity and the likelihood that the state's tax base will be maintained or enlarged;
(b) demonstrate how the funding request will act in concert with other state, federal, or local agencies to achieve the economic benefit;
(c) demonstrate how the funding request will act in concert with free market principles;
(d) satisfy other criteria the administrator considers appropriate; and
(e) be either:
(i) an entity whose purpose is to exclusively or substantially promote, develop, or maintain the economic welfare and prosperity of the state as a whole, regions of the state, or specific components of the state; or
(ii) a company or individual that does not otherwise qualify under Section [63-38f-905] 63M-1-906.
(3) Subject to the duties and powers of the board under Section [63-38f-303] 63M-1-303, the administrator shall:
(a) make findings as to whether an applicant has satisfied each of the conditions set forth in Subsection (2);
(b) establish benchmarks and timeframes in which progress toward the completion of the agreed upon activity is to occur;
(c) monitor compliance by an applicant with any contract or agreement entered into by the applicant and the state as provided by Section [63-38f-906] 63M-1-907; and
(d) make funding decisions based upon appropriate findings and compliance.
Section 1831. Section 63M-1-910, which is renumbered from Section 63-38f-909 is renumbered and amended to read:
[63-38f-909
]. 63M-1-910. Annual policy considerations.(1) The board shall determine annually which industries or groups of industries shall be targeted industries as defined in Section [63-38f-902] 63M-1-902.
(2) In designating an economically disadvantaged rural area, the board shall consider the average agricultural and nonagricultural wage, personal income, unemployment, and employment in the area.
(3) In evaluating the economic impact of applications for assistance, the board shall use an econometric cost-benefit model or models adopted by the Governor's Office of Planning and Budget.
(4) The board may establish:
(a) minimum interest rates to be applied to loans granted that reflect a fair social rate of return to the state comparable to prevailing market-based rates such as the prime rate, U.S. Government T-bill rate, or bond coupon rate as paid by the state, adjusted by social indicators such as the rate of unemployment; and
(b) minimum applicant expense ratios, as long as they are at least equal to those required under Subsection [63-38f-905] 63M-1-906(1)(a) or [63-38f-907] 63M-1-908(1)(b)(i)(A).
Section 1832. Section 63M-1-1001, which is renumbered from Section 63-38f-1001 is renumbered and amended to read:
Part 10. Biotechnology Regulation
[63-38f-1001]. 63M-1-1001. Definitions.
As used in this part, "biotechnology" is:
(1) the modification of living organisms by recombinant DNA techniques; and
(2) a means to accomplish, through genetic engineering, the same kinds of modifications accomplished through traditional genetic techniques such as crossbreeding.
Section 1833. Section 63M-1-1002, which is renumbered from Section 63-38f-1002 is renumbered and amended to read:
[63-38f-1002
]. 63M-1-1002. Confidential information.(1) A state agency having access under federal law to biotechnology trade secrets and related confidential information shall manage the trade secrets and related confidential records as protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(2) The records described in this section may be disclosed under the balancing provisions of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, when a determination is made that disclosure is essential for the protection of the public's health or environment.
Section 1834. Section 63M-1-1003, which is renumbered from Section 63-38f-1003 is renumbered and amended to read:
[63-38f-1003
]. 63M-1-1003. Preemption of local regulation.(1) A county, city, town, or other political subdivision may not regulate the technological processes relating to the development and use of biotechnologically created materials and organisms.
(2) This preemption does not affect the powers of a county, city, town, or other political subdivision, including the power to regulate land use, business, industry, construction, and public utilities, to protect the public health or environment, or to provide fire protection and other public safety services.
Section 1835. Section 63M-1-1101, which is renumbered from Section 63-38f-1101 is renumbered and amended to read:
Part 11. Recycling Market Development Zone Act
[63-38f-1101]. 63M-1-1101. Title.
This part is known as the "Recycling Market Development Zone Act."
Section 1836. Section 63M-1-1102, which is renumbered from Section 63-38f-1102 is renumbered and amended to read:
[63-38f-1102
]. 63M-1-1102. Definitions.As used in this part:
(1) "Composting" means the controlled decay of landscape waste or sewage sludge and organic industrial waste, or a mixture of these, by the action of bacteria, fungi, molds, and other organisms.
(2) "Postconsumer waste material" means any product generated by a business or consumer that has served its intended end use, and that has been separated from solid waste for the purposes of collection, recycling, and disposition and that does not include secondary waste material.
(3) (a) "Recovered materials" means waste materials and by-products that have been recovered or diverted from solid waste.
(b) "Recovered materials" does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process.
(4) (a) "Recycling" means the diversion of materials from the solid waste stream and the beneficial use of the materials and includes a series of activities by which materials that would become or otherwise remain waste are diverted from the waste stream for collection, separation, and processing, and are used as raw materials or feedstocks in lieu of or in addition to virgin materials in the manufacture of goods sold or distributed in commerce or the reuse of the materials as substitutes for goods made from virgin materials.
(b) "Recycling" does not include burning municipal solid waste for energy recovery.
(5) "Recycling market development zone" or "zone" means an area designated by the office as meeting the requirements of this part.
(6) (a) "Secondary waste material" means industrial by-products that go to disposal facilities and waste generated after completion of a manufacturing process.
(b) "Secondary waste material" does not include internally generated scrap commonly returned to industrial or manufacturing processes, such as home scrap and mill broke.
(7) "State tax incentives," "tax incentives," or "tax benefits" means the nonrefundable tax credits available under Sections 59-7-608 and 59-10-1007.
Section 1837. Section 63M-1-1103, which is renumbered from Section 63-38f-1103 is renumbered and amended to read:
[63-38f-1103
]. 63M-1-1103. Duties of the office.The office shall:
(1) facilitate recycling development zones through state support of county incentives which encourage development of manufacturing enterprises that use recycling materials currently collected;
(2) evaluate an application from a county or municipality executive authority to be designated as a recycling market development zone and determine if the county or municipality qualifies for that designation;
(3) provide technical assistance to municipalities and counties in developing applications for designation as a recycling market development zone;
(4) assist counties and municipalities designated as recycling market development zones in obtaining assistance from the federal government and agencies of the state;
(5) assist any qualified business in obtaining the benefits of any incentive or inducement program authorized by this part;
(6) monitor the implementation and operation of this part and conduct a continuing evaluation of the progress made in the recycling market development zone; and
(7) submit an annual written report evaluating the effectiveness of the program and providing recommendations for legislation to the Workforce Services and Economic Development Interim Committee and Natural Resources, Agriculture, and Environment Interim Committee not later than November 1 of each year.
Section 1838. Section 63M-1-1104, which is renumbered from Section 63-38f-1104 is renumbered and amended to read:
[63-38f-1104
]. 63M-1-1104. Criteria for recycling market development zone -- Application process and fees.(1) An area may be designated as a recycling market development zone only if:
(a) the county or municipality agrees to make a qualifying local contribution under Section [63-38f-1105] 63M-1-1105; and
(b) the county or municipality provides for postconsumer waste collection for recycling within the county or municipality.
(2) The executive authority of any municipality or county desiring to be designated as a recycling market development zone shall:
(a) obtain the written approval of the municipality or county's legislative body; and
(b) file an application with the office demonstrating the county or municipality meets the requirements of this part.
(3) The application shall be in a form prescribed by the office, and shall include:
(a) a plan developed by the county or municipality that identifies local contributions meeting the requirements of Section [63-38f-1105] 63M-1-1105;
(b) a county or municipality development plan that outlines:
(i) the specific investment or development reasonably expected to take place;
(ii) any commitments obtained from businesses to participate, and in what capacities regarding recycling markets;
(iii) the county's or municipality's economic development plan and demonstration of coordination between the zone and the county or municipality in overall development goals;
(iv) zoning requirements demonstrating that sufficient portions of the proposed zone area are zoned as appropriate for the development of commercial, industrial, or manufacturing businesses;
(v) the county's or municipality's long-term waste management plan and evidence that the zone will be adequately served by the plan; and
(vi) the county or municipality postconsumer waste collection infrastructure;
(c) the county's or municipality's proposed means of assessing the effectiveness of the development plan or other programs implemented within the zone;
(d) state whether within the zone either of the following will be established:
(i) commercial manufacturing or industrial processes that will produce end products that consist of not less than 50% recovered materials, of which not less than 25% is postconsumer waste material; or
(ii) commercial composting;
(e) any additional information required by the office; and
(f) any additional information the county or municipality considers relevant to its designation as a recycling market development zone.
(4) A county or municipality applying for designation as a recycling market development zone shall pay to the office an application fee determined under Section [63-38-3.2] 63J-1-303.
Section 1839. Section 63M-1-1105, which is renumbered from Section 63-38f-1105 is renumbered and amended to read:
[63-38f-1105
]. 63M-1-1105. Qualifying local contributions.Qualifying local contributions to the recycling market development zone may vary depending on available resources, and may include:
(1) simplified procedures for obtaining permits;
(2) dedication of available government grants;
(3) waiver of business license or permit fees;
(4) infrastructure improvements;
(5) private contributions;
(6) utility rate concessions;
(7) suspension or relaxation of locally originated zoning laws or general plans; and
(8) other proposed local contributions as the office finds promote the purposes of this part.
Section 1840. Section 63M-1-1106, which is renumbered from Section 63-38f-1106 is renumbered and amended to read:
[63-38f-1106
]. 63M-1-1106. Eligibility review.(1) The office shall:
(a) review and evaluate an application submitted under Section [63-38f-1104] 63M-1-1104; and
(b) determine whether the municipality or county is eligible for designation as a recycling market development zone.
(2) In designating recycling market development zones, the office shall consider:
(a) whether the current waste management practices and conditions of the county or municipality are favorable to the development of postconsumer waste material markets;
(b) whether the creation of the zone is necessary to assist in attracting private sector recycling investments to the area; and
(c) the amount of available landfill capacity to serve the zone.
Section 1841. Section 63M-1-1107, which is renumbered from Section 63-38f-1107 is renumbered and amended to read:
[63-38f-1107
]. 63M-1-1107. Quarterly consideration.The office shall take action quarterly on any application requesting designation as a recycling market development zone.
Section 1842. Section 63M-1-1108, which is renumbered from Section 63-38f-1108 is renumbered and amended to read:
[63-38f-1108
]. 63M-1-1108. Duration of designation.A recycling market development zone designation ends five years from the date the office designates the area as a recycling market development zone, at the end of which the county or municipality may reapply for the designation.
Section 1843. Section 63M-1-1109, which is renumbered from Section 63-38f-1109 is renumbered and amended to read:
[63-38f-1109
]. 63M-1-1109. Revocation of designations.(1) The office may revoke the designation of a recycling market development zone if no businesses utilize the tax incentives during any calendar year.
(2) Before revocation of the zone, the office shall conduct a public hearing within a reasonable distance of the zone to determine reasons for inactivity and explore possible alternative actions.
Section 1844. Section 63M-1-1110, which is renumbered from Section 63-38f-1110 is renumbered and amended to read:
[63-38f-1110
]. 63M-1-1110. Recycling market development zones credit.For a taxpayer within a recycling market development zone, there are allowed the nonrefundable credits against tax as provided by Sections 59-7-610 and 59-10-1007.
Section 1845. Section 63M-1-1111, which is renumbered from Section 63-38f-1111 is renumbered and amended to read:
[63-38f-1111
]. 63M-1-1111. Annual report.(1) A county or municipality designated as a recycling market development zone shall report by no later than July 31 of each year to the office regarding the economic activity that has occurred in the zone following the designation.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office may make rules providing for the form and content of the annual reports.
Section 1846. Section 63M-1-1112, which is renumbered from Section 63-38f-1112 is renumbered and amended to read:
[63-38f-1112
]. 63M-1-1112. Centers of excellence.In accordance with Part 6, the office may award grants to the Centers of Excellence, as defined by Section [63-38f-703] 63M-1-703, to fund development of new technology for recycling if the program funded is a cooperative effort between the Centers of Excellence and one or more recycling market development zones created under this part.
Section 1847. Section 63M-1-1201, which is renumbered from Section 63-38f-1201 is renumbered and amended to read:
Part 12. Utah Venture Capital Enhancement Act
[63-38f-1201]. 63M-1-1201. Title.
This part is known as the "Utah Venture Capital Enhancement Act."
Section 1848. Section 63M-1-1202, which is renumbered from Section 63-38f-1202 is renumbered and amended to read:
[63-38f-1202
]. 63M-1-1202. Findings -- Purpose.(1) The Legislature finds that:
(a) fundamental changes have occurred in national and international financial markets and in the state's financial markets;
(b) a critical shortage of seed and venture capital resources exists in the state, and that shortage is impairing the growth of commerce in the state;
(c) a need exists to increase the availability of venture equity capital for emerging, expanding, and restructuring enterprises in Utah, including enterprises in the life sciences, advanced manufacturing, and information technology;
(d) increased venture equity capital investments in emerging, expanding, and restructuring enterprises in Utah will:
(i) create new jobs in the state; and
(ii) help to diversify the state's economic base; and
(e) a well-trained work force is critical for the maintenance and development of Utah's economy.
(2) This part is enacted to:
(a) mobilize private investment in a broad variety of venture capital partnerships in diversified industries and locales;
(b) retain the private-sector culture of focusing on rate of return in the investing process;
(c) secure the services of the best managers in the venture capital industry, regardless of location;
(d) facilitate the organization of the Utah fund of funds to seek private investments and to serve as a catalyst in those investments by offering state incentives for private persons to make investments in the Utah fund of funds;
(e) enhance the venture capital culture and infrastructure in the state so as to increase venture capital investment within the state and to promote venture capital investing within the state;
(f) accomplish the purposes referred to in Subsections (2)(a) through (e) in a manner that would maximize the direct economic impact for the state; and
(g) authorize the issuance and use of contingent tax credits to accomplish the purposes referred to in Subsections (2)(a) through (e) while protecting the interests of the state by limiting the manner in which contingent tax credits are issued, registered, transferred, claimed as an offset to the payment of state income tax, and redeemed.
Section 1849. Section 63M-1-1203, which is renumbered from Section 63-38f-1203 is renumbered and amended to read:
[63-38f-1203
]. 63M-1-1203. Definitions.As used in this part:
(1) "Board" means the Utah Capital Investment Board.
(2) "Certificate" means a contract between the board and a designated investor under which a contingent tax credit is available and issued to the designated investor.
(3) (a) Except as provided in Subsection (3)(b), "claimant" means a resident or nonresident person.
(b) "Claimant" does not include an estate or trust.
(4) "Commitment" means a written commitment by a designated purchaser to purchase from the board certificates presented to the board for redemption by a designated investor. Each commitment shall state the dollar amount of contingent tax credits that the designated purchaser has committed to purchase from the board.
(5) "Contingent tax credit" means a contingent tax credit issued under this part that is available against tax liabilities imposed by Title 59, Chapter 7, Corporate Franchise and Income Taxes, or Title 59, Chapter 10, Individual Income Tax Act, if there are insufficient funds in the redemption reserve and the board has not exercised other options for redemption under Subsection [63-38f-1220] 63M-1-1220(3)(b).
(6) "Corporation" means the Utah Capital Investment Corporation created under Section [63-38f-1207] 63M-1-1207.
(7) "Designated investor" means:
(a) a person who purchases an equity interest in the Utah fund of funds; or
(b) a transferee of a certificate or contingent tax credit.
(8) "Designated purchaser" means:
(a) a person who enters into a written undertaking with the board to purchase a commitment; or
(b) a transferee who assumes the obligations to make the purchase described in the commitment.
(9) "Estate" means a nonresident estate or a resident estate.
(10) "Person" means an individual, partnership, limited liability company, corporation, association, organization, business trust, estate, trust, or any other legal or commercial entity.
(11) "Redemption reserve" means the reserve established by the corporation to facilitate the cash redemption of certificates.
(12) "Taxpayer" means a taxpayer:
(a) of an investor; and
(b) if that taxpayer is a:
(i) claimant;
(ii) estate; or
(iii) trust.
(13) "Trust" means a nonresident trust or a resident trust.
(14) "Utah fund of funds" means a limited partnership or limited liability company established under Section [63-38f-1213] 63M-1-1213 in which a designated investor purchases an equity interest.
Section 1850. Section 63M-1-1204, which is renumbered from Section 63-38f-1204 is renumbered and amended to read:
[63-38f-1204
]. 63M-1-1204. Utah Capital Investment Board.(1) There is created within the office the Utah Capital Investment Board to exercise the powers conferred by this part.
(2) The purpose of the board is to mobilize venture equity capital for investment in a manner that will result in a significant potential to create jobs and to diversify and stabilize the economy of the state.
(3) In the exercise of its powers and duties, the board is considered to be performing an essential public purpose.
Section 1851. Section 63M-1-1205, which is renumbered from Section 63-38f-1205 is renumbered and amended to read:
[63-38f-1205
]. 63M-1-1205. Board members -- Meetings -- Expenses.(1) (a) The board shall consist of five members.
(b) Of the five members:
(i) one shall be the state treasurer;
(ii) one shall be the director or the director's designee; and
(iii) three shall be appointed by the governor and confirmed by the Senate.
(c) The three members appointed by the governor shall serve four-year staggered terms with the initial terms of the first three members to be four years for one member, three years for one member, and two years for one member.
(2) When a vacancy occurs in the membership of the board for any reason, the vacancy shall be:
(a) filled in the same manner as the appointment of the original member; and
(b) for the unexpired term of the board member being replaced.
(3) Appointed members of the board may not serve more than two full consecutive terms except where the governor determines that an additional term is in the best interest of the state.
(4) Three members of the board constitute a quorum for conducting business and exercising board power, provided that a minimum of three affirmative votes is required for board action and at least one of the affirmative votes is cast by either the director or the director's designee or the state treasurer.
(5) (a) Members of the board may not receive compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the members' official duties at rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members of the board may decline to receive per diem and expenses for their services.
(6) Members of the board shall be selected on the basis of demonstrated expertise and competence in:
(a) the supervision of investment managers;
(b) the fiduciary management of investment funds; or
(c) the management and administration of tax credit allocation programs.
(7) The board and its members are considered to be a governmental entity with all of the rights, privileges, and immunities of a governmental entity of the state, including all of the rights and benefits conferred under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(8) Meetings of the board, except to the extent necessary to protect confidential information with respect to investments in the Utah fund of funds, are subject to Title 52, Chapter 4, Open and Public Meetings Act.
Section 1852. Section 63M-1-1206, which is renumbered from Section 63-38f-1206 is renumbered and amended to read:
[63-38f-1206
]. 63M-1-1206. Board duties and powers.(1) The board shall:
(a) establish criteria and procedures for the allocation and issuance of contingent tax credits to designated investors by means of certificates issued by the board, provided that a contingent tax credit may not be issued unless the Utah fund of funds:
(i) first agrees to treat the amount of the tax credit redeemed by the state as a loan from the state to the Utah fund of funds; and
(ii) agrees to repay the loan upon terms and conditions established by the board;
(b) establish criteria and procedures for assessing the likelihood of future certificate redemptions by designated investors, including:
(i) criteria and procedures for evaluating the value of investments made by the Utah fund of funds; and
(ii) the returns from the Utah fund of funds;
(c) establish criteria and procedures for registering and redeeming contingent tax credits by designated investors holding certificates issued by the board;
(d) establish a target rate of return or range of returns on venture capital investments of the Utah fund of funds;
(e) establish criteria and procedures governing commitments obtained by the board from designated purchasers including:
(i) entering into commitments with designated purchasers; and
(ii) drawing on commitments to redeem certificates from designated investors;
(f) have power to:
(i) expend funds;
(ii) invest funds;
(iii) enter into contracts;
(iv) insure against loss; and
(v) perform any other act necessary to carry out its purpose; and
(g) make, amend, and repeal rules for the conduct of its affairs, consistent with this part and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) (a) All rules made by the board under Subsection (1)(g) are subject to review by the Legislative Management Committee:
(i) whenever made, modified, or repealed; and
(ii) in each even-numbered year.
(b) Subsection (2)(a) does not preclude the legislative Administrative Rules Review Committee from reviewing and taking appropriate action on any rule made, amended, or repealed by the board.
(3) (a) The criteria and procedures established by the board for the allocation and issuance of contingent tax credits shall:
(i) include the contingencies that must be met for a certificate and its related tax credits to be:
(A) issued by the board;
(B) transferred by a designated investor; and
(C) redeemed by a designated investor in order to receive a contingent tax credit; and
(ii) tie the contingencies for redemption of certificates to the targeted rates of return and scheduled redemptions of equity interests purchased by designated investors in the Utah fund of funds.
(b) The board may not issue contingent tax credits under this part prior to July 1, 2004.
(4) (a) The board may charge a placement fee to the Utah fund of funds for the issuance of a certificate and related contingent tax credit to a designated investor.
(b) The fee shall:
(i) be charged only to pay for reasonable and necessary costs of the board; and
(ii) not exceed .5% of the equity investment of the designated investor.
(5) The board's criteria and procedures for redeeming certificates:
(a) shall give priority to the redemption amount from the available funds in the redemption reserve; and
(b) to the extent there are insufficient funds in the redemption reserve to redeem certificates, shall grant the board the option to redeem certificates:
(i) by certifying a contingent tax credit to the designated investor; or
(ii) by making demand on designated purchasers consistent with the requirements of Section [63-38f-1221] 63M-1-1221.
(6) (a) The board shall, in consultation with the corporation, publish an annual report of the activities conducted by the Utah fund of funds, and present the report to the governor and the Executive Appropriations Committee of the Legislature.
(b) The annual report shall:
(i) include a copy of the audit of the Utah fund of funds and a valuation of the assets of the Utah fund of funds;
(ii) review the progress of the investment fund allocation manager in implementing its investment plan; and
(iii) describe any redemption or transfer of a certificate issued under this part.
(c) The annual report may not identify any specific designated investor who has redeemed or transferred a certificate.
(d) (i) Beginning July 1, 2006, and thereafter every two years, the board shall publish a progress report which shall evaluate the progress of the state in accomplishing the purposes stated in Section [63-38f-1202] 63M-1-1202.
(ii) The board shall give a copy of the report to the Legislature.
Section 1853. Section 63M-1-1207, which is renumbered from Section 63-38f-1207 is renumbered and amended to read:
[63-38f-1207
]. 63M-1-1207. Utah Capital Investment Corporation -- Powers and purposes.(1) (a) There is created an independent quasi-public nonprofit corporation known as the Utah Capital Investment Corporation.
(b) The corporation:
(i) may exercise all powers conferred on independent corporations under Section 63E-2-106;
(ii) is subject to the prohibited participation provisions of Section 63E-2-107; and
(iii) is subject to the other provisions of Title 63E, Chapter 2, Independent Corporations Act, except as otherwise provided in this part.
(c) The corporation shall file with the Division of Corporations and Commercial Code:
(i) articles of incorporation; and
(ii) any amendment to its articles of incorporation.
(d) In addition to the articles of incorporation, the corporation may adopt bylaws and operational policies that are consistent with this chapter.
(e) Except as otherwise provided in this part, this part does not exempt the corporation from the requirements under state law which apply to other corporations organized under Title 63E, Chapter 2, Independent Corporations Act.
(2) The purposes of the corporation are to:
(a) organize the Utah fund of funds;
(b) select a venture capital investment fund allocation manager to make venture capital fund investments by the Utah fund of funds;
(c) negotiate the terms of a contract with the venture capital investment fund allocation manager;
(d) execute the contract with the selected venture capital investment fund manager on behalf of the Utah fund of funds;
(e) receive funds paid by designated investors for the issuance of certificates by the board for investment in the Utah fund of funds;
(f) receive investment returns from the Utah fund of funds; and
(g) establish the redemption reserve to be used by the corporation to redeem certificates.
(3) The corporation may not:
(a) exercise governmental functions;
(b) have members;
(c) pledge the credit or taxing power of the state or any political subdivision of the state; or
(d) make its debts payable out of any moneys except those of the corporation.
(4) The obligations of the corporation are not obligations of the state or any political subdivision of the state within the meaning of any constitutional or statutory debt limitations, but are obligations of the corporation payable solely and only from the corporation's funds.
(5) The corporation may:
(a) engage consultants and legal counsel;
(b) expend funds;
(c) invest funds;
(d) enter into contracts;
(e) insure against loss;
(f) hire employees; and
(g) perform any other act necessary to carry out its purposes.
Section 1854. Section 63M-1-1208, which is renumbered from Section 63-38f-1208 is renumbered and amended to read:
[63-38f-1208
]. 63M-1-1208. Incorporator -- Appointment committee.(1) To facilitate the organization of the corporation, the director or the director's designee shall serve as the incorporator as provided in Section 16-6a-201.
(2) To assist in the organization of the corporation, the Utah Board of Business and Economic Development shall appoint three individuals to serve on an appointment committee.
(3) The appointment committee shall:
(a) elect the initial board of directors of the corporation;
(b) exercise due care to assure that persons elected to the initial board of directors have the requisite financial experience necessary in order to carry out the duties of the corporation as established in this part, including in areas related to:
(i) venture capital investment;
(ii) investment management; and
(iii) supervision of investment managers and investment funds; and
(c) terminate its existence upon the election of the initial board of directors of the corporation.
(4) The office shall assist the incorporator and the appointment committee in any manner determined necessary and appropriate by the incorporator and appointment committee in order to administer this section.
Section 1855. Section 63M-1-1209, which is renumbered from Section 63-38f-1209 is renumbered and amended to read:
[63-38f-1209
]. 63M-1-1209. Board of directors.(1) The initial board of directors of the corporation shall consist of five members.
(2) The persons elected to the initial board of directors by the appointment committee shall include persons who have an expertise, as considered appropriate by the appointment committee, in the areas of:
(a) the selection and supervision of investment managers;
(b) fiduciary management of investment funds; and
(c) other areas of expertise as considered appropriate by the appointment committee.
(3) After the election of the initial board of directors, vacancies in the board of directors of the corporation shall be filled by election by the remaining directors of the corporation.
(4) (a) Board members shall serve four-year terms, except that of the five initial members:
(i) two shall serve four-year terms;
(ii) two shall serve three-year terms; and
(iii) one shall serve a two-year term.
(b) Board members shall serve until their successors are elected and qualified and may serve successive terms.
(c) A majority of the board members may remove a board member for cause.
(d) (i) The board shall select a chair by majority vote.
(ii) The chair's term is for one year.
(5) Three members of the board are a quorum for the transaction of business.
(6) Members of the board of directors:
(a) are subject to any restrictions on conflicts of interest specified in the organizational documents of the corporation; and
(b) may have no interest in any:
(i) venture capital investment fund allocation manager selected by the corporation under this part; or
(ii) investments made by the Utah fund of funds.
(7) Directors of the corporation:
(a) shall be compensated for direct expenses and mileage; and
(b) may not receive a director's fee or salary for service as directors.
Section 1856. Section 63M-1-1210, which is renumbered from Section 63-38f-1210 is renumbered and amended to read:
[63-38f-1210
]. 63M-1-1210. Investment manager.(1) After incorporation, the corporation shall conduct a national solicitation for investment plan proposals from qualified venture capital investment fund allocation managers for the raising and investing of capital by the Utah fund of funds in accordance with the requirements of this part.
(2) Any proposed investment plan shall address the applicant's:
(a) level of:
(i) experience; and
(ii) quality of management;
(b) investment philosophy and process;
(c) probability of success in fund-raising;
(d) prior investment fund results; and
(e) plan for achieving the purposes of this part.
(3) The selected venture capital investment fund allocation manager shall have substantial, successful experience in the design, implementation, and management of seed and venture capital investment programs and in capital formation.
(4) The corporation shall only select a venture capital investment fund allocation manager:
(a) with demonstrated expertise in the management and fund allocation of investments in venture capital funds; and
(b) considered best qualified to:
(i) invest the capital of the Utah fund of funds; and
(ii) generate the amount of capital required by this part.
Section 1857. Section 63M-1-1211, which is renumbered from Section 63-38f-1211 is renumbered and amended to read:
[63-38f-1211
]. 63M-1-1211. Management fee -- Additional financial assistance.(1) The corporation may charge a management fee on assets under management in the Utah fund of funds.
(2) The fee shall:
(a) be in addition to any fee charged to the Utah fund of funds by the venture capital investment fund allocation manager selected by the corporation; and
(b) be charged only to pay for reasonable and necessary costs of the corporation.
(3) The corporation may apply for and, when qualified, receive financial assistance from the Industrial Assistance Fund under [Title 63, Chapter 38f] Title 63M, Chapter 1, Part 9, Industrial Assistance Fund, and under rules made by the Board of Business and Economic Development in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to help establish the program authorized under this part.
Section 1858. Section 63M-1-1212, which is renumbered from Section 63-38f-1212 is renumbered and amended to read:
[63-38f-1212
]. 63M-1-1212. Dissolution.(1) Upon the dissolution of the Utah fund of funds, the corporation shall be liquidated and dissolved.
(2) Upon dissolution or privatization of the corporation, any assets owned by the corporation shall be distributed to one or more Utah nonprofit tax exempt organizations to be designated by the Legislature for the purposes listed in Section [63-38f-1202] 63M-1-1202 as provided in Title 63E, Chapter 1, Independent Entities Act.
Section 1859. Section 63M-1-1213, which is renumbered from Section 63-38f-1213 is renumbered and amended to read:
[63-38f-1213
]. 63M-1-1213. Organization of Utah fund of funds.(1) The corporation shall organize the Utah fund of funds.
(2) The Utah fund of funds shall make investments in private seed and venture capital partnerships or entities in a manner and for the following purposes:
(a) to encourage the availability of a wide variety of venture capital in the state;
(b) to strengthen the economy of the state;
(c) to help business in the state gain access to sources of capital;
(d) to help build a significant, permanent source of capital available to serve the needs of businesses in the state; and
(e) to accomplish all these benefits in a way that minimizes the use of contingent tax credits.
(3) The Utah fund of funds shall be organized:
(a) as a limited partnership or limited liability company under Utah law having the corporation as the general partner or manager; and
(b) to provide for equity interests for designated investors which provide for a designated scheduled rate of return and a scheduled redemption in accordance with rules made by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) Public money may not be invested in the Utah fund of funds.
Section 1860. Section 63M-1-1214, which is renumbered from Section 63-38f-1214 is renumbered and amended to read:
[63-38f-1214
]. 63M-1-1214. Compensation from the Utah fund of funds to the corporation -- Redemption reserve.(1) The corporation shall be compensated for its involvement in the Utah fund of funds through the payment of the management fee described in Section [63-38f-1211] 63M-1-1211.
(2) (a) Any returns in excess of those payable to designated investors shall be deposited in the redemption reserve and held by the corporation as a first priority reserve for the redemption of certificates.
(b) Any returns received by the corporation from investment of amounts held in the redemption reserve shall be added to the redemption reserve until it has reached a total of $100,000,000.
(c) If at the end of any calendar year the redemption reserve exceeds the $100,000,000 limitation referred to in Subsection (2)(b), the excess shall be reinvested in the Utah fund of funds.
(3) Funds held by the corporation in the redemption reserve shall be invested in accordance with Title 51, Chapter 7, State Money Management Act.
Section 1861. Section 63M-1-1215, which is renumbered from Section 63-38f-1215 is renumbered and amended to read:
[63-38f-1215
]. 63M-1-1215. Investments by Utah fund of funds.(1) The Utah fund of funds shall invest funds:
(a) principally in high-quality venture capital funds managed by investment managers who have:
(i) made a commitment to equity investments in businesses located within the state; and
(ii) have committed to maintain a physical presence within the state;
(b) in private venture capital funds and not in direct investments in individual businesses; and
(c) in venture capital funds with experienced managers or management teams with demonstrated expertise and a successful history in the investment of venture capital funds.
(2) (a) The Utah fund of funds shall give priority to investments in private seed and venture capital partnerships and entities that have demonstrated a commitment to the state as evidenced by:
(i) the investments they have made in Utah-based entities;
(ii) the correspondent relationships they have established with Utah-based venture capital funds; or
(iii) the commitment they have made to expand the reach of expertise within the state by adding additional investment areas of expertise.
(b) The manager of the Utah fund of funds may waive the priorities under Subsection (2)(a) only if necessary to achieve the targeted investment returns required to attract designated investors.
(3) The Utah fund of funds may invest funds in a newly created venture capital fund only if the managers or management team of the fund have the experience, expertise, and a successful history in the investment of venture capital funds as described in Subsection (1)(c).
(4) (a) An investment or investments by the Utah fund of funds in any venture capital fund may comprise no more than 20% of the total committed capital in the venture capital fund.
(b) (i) No more than 50% of the funds invested by the Utah fund of funds may be made with venture capital entities with offices in the state established prior to July 1, 2002.
(ii) The restriction under Subsection (4)(b)(i) shall remain in place until three additional venture capital entities open new offices in the state.
Section 1862. Section 63M-1-1216, which is renumbered from Section 63-38f-1216 is renumbered and amended to read:
[63-38f-1216
]. 63M-1-1216. Powers of Utah fund of funds.(1) The Utah fund of funds may:
(a) engage consultants and legal counsel;
(b) expend funds;
(c) invest funds;
(d) enter into contracts;
(e) insure against loss;
(f) hire employees;
(g) issue equity interests to designated investors that have purchased certificates from the board; and
(h) perform any other act necessary to carry out its purposes.
(2) (a) The Utah fund of funds shall engage a venture capital investment fund allocation manager.
(b) The compensation paid to the fund manager shall be in addition to the management fee paid to the corporation under Section [63-38f-1211] 63M-1-1211.
(3) The Utah fund of funds may:
(a) issue debt and borrow the funds needed to accomplish its goals;
(b) not secure its debt with contingent tax credits issued by the board;
(c) open and manage bank and short-term investment accounts as considered necessary by the venture capital investment fund allocation manager; and
(d) expend moneys to secure investment ratings for investments by designated investors in the Utah fund of funds.
Section 1863. Section 63M-1-1217, which is renumbered from Section 63-38f-1217 is renumbered and amended to read:
[63-38f-1217
]. 63M-1-1217. Annual audits.(1) Each calendar year, an audit of the activities of the Utah fund of funds shall be made as described in this section.
(2) (a) The audit shall be conducted by:
(i) the state auditor; or
(ii) an independent auditor engaged by the state auditor.
(b) An independent auditor used under Subsection (2)(a)(ii) must have no business, contractual, or other connection to:
(i) the corporation; or
(ii) the Utah fund of funds.
(3) The corporation shall pay the costs associated with the annual audit.
(4) The annual audit report shall:
(a) be delivered to:
(i) the corporation; and
(ii) the board; and
(b) include a valuation of the assets owned by the Utah fund of funds as of the end of the reporting year.
Section 1864. Section 63M-1-1218, which is renumbered from Section 63-38f-1218 is renumbered and amended to read:
[63-38f-1218
]. 63M-1-1218. Certificates and contingent tax credits.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board, in consultation with the State Tax Commission, shall make rules governing the form, issuance, transfer, and redemption of certificates.
(2) The board's issuance of certificates and related contingent tax credits to designated investors shall be subject to the following:
(a) the aggregate outstanding certificates may not exceed a total of $100,000,000 of contingent tax credits;
(b) the certificates shall be issued contemporaneously with an investment in the Utah fund of funds by a designated investor;
(c) contingent tax credits shall be issued in a manner that not more than $20,000,000 of contingent tax credits may be initially redeemable in any fiscal year; and
(d) the credits are certifiable if there are insufficient funds in the redemption reserve to make a cash redemption and the board does not exercise its other options under Subsection [63-38f-1220] 63M-1-1220(3)(b).
(3) In determining the $100,000,000 maximum limit in Subsection (2)(a) and the $20,000,000 limitation in Subsection (2)(c):
(a) the board shall use the cumulative amount of scheduled aggregate returns on certificates issued by the board to designated investors;
(b) certificates and related contingent tax credits which have expired may not be included; and
(c) certificates and related contingent tax credits which have been redeemed shall be included only to the extent of tax credits actually allowed.
(4) Contingent tax credits are subject to the following:
(a) a contingent tax credit may not be redeemed except by a designated investor in accordance with the terms of a certificate from the board;
(b) a contingent tax credit may not be redeemed prior to the time the Utah fund of funds receives full payment from the designated investor for the certificate;
(c) a contingent tax credit shall be claimed for a tax year that begins during the calendar year maturity date stated on the certificate;
(d) an investor who redeems a certificate and the related contingent tax credit shall allocate the amount of the contingent tax credit to the taxpayers of the investor based on the taxpayer's pro rata share of the investor's earnings; and
(e) a contingent tax credit shall be claimed as a refundable credit.
(5) In calculating the amount of a contingent tax credit:
(a) a contingent tax credit shall be certified by the board only if the actual return to the designated investor is less than the return that was targeted at the issuance of the certificate;
(b) the amount of the contingent tax credit may not exceed the difference between:
(i) the sum of:
(A) the initial equity investment of the designated investor in the Utah fund of funds; and
(B) the scheduled aggregate return to the designated investor at rates of return authorized by the board at the issuance of the certificate; and
(ii) the aggregate actual return received by the designated investor and any predecessor in interest of the initial equity investment and interest on the initial equity investment; and
(c) the rates, whether fixed rates or variable rates, shall be determined by a formula stipulated in the certificate.
(6) The board shall clearly indicate on the certificate:
(a) the targeted return on the invested capital;
(b) the amount of the initial equity investment;
(c) the calculation formula for determining the scheduled aggregate return on the initial equity investment; and
(d) the calculation formula for determining the amount of the contingent tax credit that may be claimed.
(7) Once moneys are invested by a designated investor, the certificate:
(a) shall be binding on the board; and
(b) may not be modified, terminated, or rescinded.
(8) Funds invested by a designated investor for a certificate shall be paid to the corporation for placement in the Utah fund of funds.
(9) The State Tax Commission may, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and in consultation with the board, make rules to help implement this section.
Section 1865. Section 63M-1-1219, which is renumbered from Section 63-38f-1219 is renumbered and amended to read:
[63-38f-1219
]. 63M-1-1219. Transfer and registration of certificates.(1) A certificate and the related contingent tax credit may be transferred by the designated investor.
(2) The board, in conjunction with the State Tax Commission, shall develop:
(a) a system for registration of any certificate and related contingent tax credit issued or transferred under this part; and
(b) a system that permits verification that:
(i) any contingent tax credit claimed is valid; and
(ii) any transfers of the certificate and related contingent tax credit are made in accordance with the requirements of this part.
(3) A certificate or contingent tax credit issued or transferred under this part may not be considered a security under Title 61, Chapter 1, Utah Uniform Securities Act.
Section 1866. Section 63M-1-1220, which is renumbered from Section 63-38f-1220 is renumbered and amended to read:
[63-38f-1220
]. 63M-1-1220. Redemption of certificates.(1) If a designated investor elects to redeem a certificate, the certificate shall be presented to the board for redemption no later than June 30 of the calendar year maturity date stated on the certificate.
(2) Upon presentment to the board, it shall determine and certify the amount of the contingent tax credit that may be claimed by the designated investor based on:
(a) the limitations in Section [63-38f-1218] 63M-1-1218; and
(b) rules made by the board in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(3) (a) If there are sufficient funds in the redemption reserve, the board shall direct the corporation to make a cash redemption of the certificate.
(b) If there are insufficient funds in the redemption reserve, the board may elect to redeem the certificate:
(i) by certifying a contingent tax credit to the designated investor; or
(ii) by making demand on designated purchasers to purchase certificates in accordance with Section [63-38f-1221] 63M-1-1221.
(4) The board shall certify to the State Tax Commission the contingent tax credit which can be claimed by the designated investor with respect to the redemption of the certificate.
(5) The board shall cancel all redeemed certificates.
Section 1867. Section 63M-1-1221, which is renumbered from Section 63-38f-1221 is renumbered and amended to read:
[63-38f-1221
]. 63M-1-1221. Use of commitments to redeem certificates.(1) The board may elect to draw on a commitment to redeem a certificate from a designated investor.
(2) If the board makes an election under Subsection (1), it shall:
(a) inform the designated purchaser of the amount of the contingent tax credit that must be purchased from the board;
(b) specify the date on which the purchase must be consummated; and
(c) use the funds delivered to the board by the designated purchaser to redeem the certificate from the designated investor.
(3) The board has discretion in determining which commitment or commitments and what portion of those commitments to use to redeem certificates.
(4) The contingent tax credits acquired by a designated purchaser under this section are subject to Section [63-38f-1218] 63M-1-1218.
Section 1868. Section 63M-1-1222, which is renumbered from Section 63-38f-1222 is renumbered and amended to read:
[63-38f-1222
]. 63M-1-1222. Powers and effectiveness.(1) This part may not be construed as a restriction or limitation upon any power which the board might otherwise have under any other law of this state and the provisions of this part are cumulative to those powers.
(2) This part shall be construed to provide a complete, additional, and alternative method for performing the duties authorized and shall be regarded as supplemental and additional powers to those conferred by any other laws.
(3) The provisions of any contract entered into by the board or the Utah fund of funds may not be compromised, diminished, invalidated, or affected by the:
(a) level, timing, or degree of success of the Utah fund of funds or the investment funds in which the Utah fund of funds invests; or
(b) extent to which the investment funds are:
(i) invested in Utah venture capital projects; or
(ii) successful in accomplishing any economic development objectives.
Section 1869. Section 63M-1-1223, which is renumbered from Section 63-38f-1223 is renumbered and amended to read:
[63-38f-1223
]. 63M-1-1223. Permissible investments.Investments by designated investors in the Utah fund of funds are permissible investments under applicable laws of the state for:
(1) state-chartered banks;
(2) state-chartered savings and loan associations;
(3) state-chartered credit unions;
(4) state-chartered industrial banks; and
(5) domestic insurance companies.
Section 1870. Section 63M-1-1224, which is renumbered from Section 63-38f-1224 is renumbered and amended to read:
[63-38f-1224
]. 63M-1-1224. Exemption from certain statutes.(1) Except as otherwise provided in this part, the corporation is exempt from statutes governing state agencies, as provided in Section 63E-2-109.
(2) The corporation shall be subject to:
(a) Title 52, Chapter 4, Open and Public Meetings Act; and
(b) except as provided in Subsection (3), [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(3) The corporation and the board are exempt from the requirement to report fund performance of venture firms and private equity firms set forth in [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 1871. Section 63M-1-1301, which is renumbered from Section 63-38f-1301 is renumbered and amended to read:
Part 13. Aerospace and Aviation Zone
[63-38f-1301]. 63M-1-1301. Purpose.
(1) The Legislature finds that:
(a) the fostering and development of industry in Utah is a state public purpose necessary to assure the welfare of its citizens, the growth of its economy, and adequate employment for its citizens; and
(b) Utah loses prospective high paying jobs, economic impacts, and corresponding incremental new state revenues to competing states due to a wide variety of competing economic development incentives offered by those states.
(2) This part is enacted to address the loss of new economic growth in Utah and the corresponding loss of incremental new state revenues by providing tax increment financial incentives to attract new commercial projects in development zones located on or contiguous to airports in the state.
Section 1872. Section 63M-1-1302, which is renumbered from Section 63-38f-1302 is renumbered and amended to read:
[63-38f-1302
]. 63M-1-1302. Definitions.As used in this part:
(1) "Development zone" means the Aerospace and Aviation Development Zone created under Section [63-38f-1303] 63M-1-1303.
(2) "Indirect state revenues" means the imputed use of a generally accepted indirect economic multiplier as defined by a fiscal impact model approved by the Governor's Office of Planning and Budget to quantify by estimate the indirect state tax revenues that are in addition to direct state tax revenues.
(3) "New state revenues" means incremental new state tax revenues that are generated as a result of new economic commercial projects in a development zone, to include the state's portion of sales taxes, and company and employee income taxes derived from the projects, together with indirect state revenues generated by the projects, but not to include any portion of sales taxes earmarked for local governments or other taxing jurisdictions eligible for sales tax revenues.
(4) "Office" means the Governor's Office of Economic Development acting through its director.
(5) "Partial rebates" means returning a portion of the new state revenues generated by new commercial projects to companies or individuals that have created new economic growth within a development zone.
Section 1873. Section 63M-1-1303, which is renumbered from Section 63-38f-1303 is renumbered and amended to read:
[63-38f-1303
]. 63M-1-1303. Creation of development zones.The office, with advice from the board, may create an Aerospace and Aviation Development Zone at or around any airport in the state that has land available for commercial development on, or contiguous to, the airport.
Section 1874. Section 63M-1-1304, which is renumbered from Section 63-38f-1304 is renumbered and amended to read:
[63-38f-1304
]. 63M-1-1304. Development incentives.(1) The office, with advice from the board, may enter into agreements providing for partial rebates of new state revenues generated by new commercial projects to companies or individuals that create new economic growth within the development zone.
(2) In no event may the partial rebates be in excess of 50% of the new state revenues in any given year.
(3) (a) The partial rebates may not exceed 30% of the new state revenues generated over the life of a new commercial project.
(b) For purposes of this part, the life of a new commercial project is limited to 20 years.
(4) Partial rebates are subject to any other limitations adopted by board rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 1875. Section 63M-1-1305, which is renumbered from Section 63-38f-1305 is renumbered and amended to read:
[63-38f-1305
]. 63M-1-1305. Qualifications for credits and rebates.The office shall set standards to qualify for partial rebates under this part, subject to the following:
(1) no partial rebates may be paid prior to verification, by the office, of the new state revenues upon which the tax rebate is based;
(2) partial rebates can only be paid on projects that are within the development zone;
(3) partial rebates can only be paid on projects that bring new, incremental jobs to the state;
(4) qualifying projects must involve direct investment within the geographic boundaries of the development zone;
(5) only aerospace and aviation industry projects, as defined by board rule made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, are eligible for partial rebates; and
(6) in order to claim payments representing partial rebates of new state revenues, a person must:
(a) enter into an office-approved agreement with the office and affirm by contractual agreement to keep supporting records for at least four years after final payment of partial rebates under this part;
(b) submit to audits for verification of the amounts claimed; and
(c) comply with other conditions as are required by the office.
Section 1876. Section 63M-1-1306, which is renumbered from Section 63-38f-1306 is renumbered and amended to read:
[63-38f-1306
]. 63M-1-1306. Payment procedure.Any payment of partial rebates of new state revenues shall be made in accordance with procedures adopted by the office with the advice of the board, to include the following:
(1) within 90 days of the end of each calendar year, any company or individual that has entered into an agreement with the office under this part shall provide the office with documentation of the new state revenues it claims to have generated during that calendar year, the documentation to include the types of taxes and corresponding amounts of taxes paid directly to the Utah State Tax Commission, and sales taxes paid to Utah vendors and suppliers that are indirectly paid to the Utah State Tax Commission;
(2) the office shall audit or review the documentation, make a determination of the amount of partial rebates earned under the agreement, and forward an office-approved request for payment of that amount to the Division of Finance, together with information regarding the name and address of the payee and any other information reasonably requested by the office; and
(3) the Division of Finance shall pay a partial rebate from the Economic Incentive Restricted Account created in Section [63-38f-1309] 63M-1-1309 upon receipt of documentation and the office-approved request from the office under Subsection (2).
Section 1877. Section 63M-1-1307, which is renumbered from Section 63-38f-1307 is renumbered and amended to read:
[63-38f-1307
]. 63M-1-1307. Office's authority.(1) The office, with the advice of the board and within the limitations of this part, may determine:
(a) the structure and amount of any partial rebates offered under this part;
(b) the economic impacts and job creation necessary to qualify for the incentive; and
(c) the other terms and conditions of any agreement entered into under this part.
(2) In reviewing claims for partial rebates of new state revenues, the office may accept:
(a) as the amount of employee income taxes paid, the amount of employee income taxes withheld and transmitted to the Utah State Tax Commission as evidenced by payroll records rather than adjusting for the difference between taxes withheld and taxes actually paid through filing by employees' annual income tax statements; and
(b) as the amount of company income taxes paid, the amount of corporate franchise and income taxes estimated and transmitted to the Utah State Tax Commission as evidenced by quarterly payment records rather than adjusting for the difference between estimated taxes paid quarterly and taxes actually paid through the filing of the corporation's annual income tax statement.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board may make, amend, and repeal rules regarding the development zone and partial rebates offered within it, provided the rules are consistent with state and federal law.
Section 1878. Section 63M-1-1308, which is renumbered from Section 63-38f-1308 is renumbered and amended to read:
[63-38f-1308
]. 63M-1-1308. Coordination with Industrial Assistance Fund.Projects that qualify for partial rebates of new state revenues under this part and enter into agreements with the office under this part are ineligible to qualify for additional financial assistance from the Industrial Assistance Fund under Section [63-38f-904] 63M-1-905.
Section 1879. Section 63M-1-1309, which is renumbered from Section 63-38f-1309 is renumbered and amended to read:
[63-38f-1309
]. 63M-1-1309. Establishment of the Economic Incentive Restricted Account.(1) There is created a restricted account in the General Fund known as the Economic Incentive Restricted Account.
(2) The account shall be used to make payments as required under Sections [63-38f-1306] 63M-1-1306 and [63-38f-1705] 63M-1-1705.
(3) (a) The Division of Finance shall transfer from the General Fund the amount estimated by the office from new state revenues needed to make the partial rebates as allowed in Sections [63-38f-1306] 63M-1-1306 and [63-38f-1705] 63M-1-1705.
(b) The amount transferred into the account shall be reduced by any unencumbered balances in the account.
(4) Not withstanding Subsections 51-5-3(23)(b) and [63-38-9] 63J-1-404(4)(c), after receiving a request for payment, in accordance with Subsection [63-38f-1306] 63M-1-1306(2) or [63-38f-1705] 63M-1-1705(2), the Division of Finance shall pay the partial rebates as allowed in Section [63-38f-1306] 63M-1-1306 or [63-38f-1705] 63M-1-1705, from the account.
(5) (a) Prior to the beginning of each fiscal year, the office shall notify the Governor's Office of Planning and Budget, the Office of Legislative Fiscal Analyst, and the Division of Finance of:
(i) the estimated amount of new state revenues created from economic growth in the development zones, the estimate detailed by the amounts from:
(A) sales tax;
(B) income tax; and
(C) corporate franchise and income tax; and
(ii) the estimated amount partial rebates projected to be paid in the upcoming fiscal year, the estimates detailed by the amounts from:
(A) sales tax;
(B) income tax; and
(C) corporate franchise and income tax.
(b) The office shall update the estimates required by Subsections (5)(a)(i) and (ii) within 30 days of the signing of each new agreement entered into under this part or [Title 63, Chapter 38f] Title 63M, Chapter 1, Part 17, Economic Development Incentives Act.
Section 1880. Section 63M-1-1401, which is renumbered from Section 63-38f-1406 is renumbered and amended to read:
Part 14. Board of Tourism Development
[63-38f-1406]. 63M-1-1401. Board of Tourism Development.
(1) There is created within the office the Board of Tourism Development.
(2) The board shall advise the office on the office's planning, policies, and strategies and on trends and opportunities for tourism development that may exist in the various areas of the state.
(3) The board shall perform other duties as required by Section [63-38f-1408] 63M-1-1403.
Section 1881. Section 63M-1-1402, which is renumbered from Section 63-38f-1407 is renumbered and amended to read:
[63-38f-1407
]. 63M-1-1402. Members -- Meetings -- Expenses.(1) (a) The board shall consist of 13 members appointed by the governor to four-year terms of office with the consent of the Senate.
(b) Notwithstanding the requirements of Subsection (1)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(2) The members may not serve more than two full consecutive terms unless the governor determines that an additional term is in the best interest of the state.
(3) Not more than seven members of the board may be of the same political party.
(4) (a) The members shall be representative of:
(i) all areas of the state with six being appointed from separate geographical areas as provided in Subsection (4)(b); and
(ii) a diverse mix of business ownership or executive management of tourism related industries.
(b) The geographical representatives shall be appointed as follows:
(i) one member from Salt Lake, Tooele, or Morgan County;
(ii) one member from Davis, Weber, Box Elder, Cache, or Rich County;
(iii) one member from Utah, Summit, Juab, or Wasatch County;
(iv) one member from Carbon, Emery, Grand, Duchesne, Daggett, or Uintah County;
(v) one member from San Juan, Piute, Wayne, Garfield, or Kane County; and
(vi) one member from Washington, Iron, Beaver, Sanpete, Sevier, or Millard County.
(c) The tourism industry representatives of ownership or executive management shall be appointed as follows:
(i) one member from ownership or executive management of the lodging industry, as recommended by the lodging industry for the governor's consideration;
(ii) one member from ownership or executive management of the restaurant industry, as recommended by the restaurant industry for the governor's consideration;
(iii) one member from ownership or executive management of the ski industry, as recommended by the ski industry for the governor's consideration; and
(iv) one member from ownership or executive management of the motor vehicle rental industry, as recommended by the motor vehicle rental industry for the governor's consideration.
(d) One member shall be appointed at large from ownership or executive management of business, finance, economic policy, or the academic media marketing community.
(e) One member shall be appointed from the Utah Tourism Industry Coalition as recommended by the coalition for the governor's consideration.
(f) One member shall be appointed to represent the state's counties as recommended by the Utah Association of Counties for the governor's consideration.
(g) (i) The governor may choose to disregard a recommendation made for a board member under Subsections (4)(c), (e), and (f).
(ii) The governor shall request additional recommendations if recommendations are disregarded under Subsection (4)(g)(i).
(5) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term from the same geographic area or industry representation as the member whose office was vacated.
(6) Seven members of the board constitute a quorum for conducting board business and exercising board powers.
(7) The governor shall select one of the board members as chair and one of the board members as vice chair, each for a four-year term as recommended by the board for the governor's consideration.
(8) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
(9) The board shall meet monthly or as often as the board determines to be necessary at various locations throughout the state.
(10) Members who may have a potential conflict of interest in consideration of fund allocation decisions shall identify the potential conflict prior to voting on the issue.
(11) (a) The board shall determine attendance requirements for maintaining a designated board seat.
(b) If a board member fails to attend according to the requirements established pursuant to Subsection (11)(a), the board member shall be replaced upon written certification from the board chair or vice chair to the governor.
(c) A replacement appointed by the governor under Subsection (11)(b) shall serve for the remainder of the board member's unexpired term.
(12) The board's office shall be in Salt Lake City.
Section 1882. Section 63M-1-1403, which is renumbered from Section 63-38f-1408 is renumbered and amended to read:
[63-38f-1408
]. 63M-1-1403. Board duties.(1) The board shall:
(a) have authority to approve a tourism program of out-of-state advertising, marketing, and branding, taking into account the long-term strategic plan, economic trends, and opportunities for tourism development on a statewide basis, as a condition of the distribution of funds to the office from the Tourism Marketing Performance Account under Section [63-38f-1411] 63M-1-1406;
(b) review the office programs for coordination and integration of advertising and branding themes to be used whenever possible in all office programs, including recreational, scenic, historic, and tourist attractions of the state at large;
(c) encourage and assist in coordination of the activities of persons, firms, associations, corporations, civic groups, and governmental agencies engaged in publicizing, developing, and promoting the scenic attractions and tourist advantages of the state; and
(d) (i) advise the office in establishing a Cooperative Program from the monies in the Tourism Marketing Performance Account under Section [63-38f-1411] 63M-1-1406 for use by cities, counties, nonprofit destination marketing organizations, and similar public entities for the purpose of supplementing monies committed by these entities for advertising and promotion to and for out-of-state residents to attract them to visit sites advertised by and attend events sponsored by these entities;
(ii) the Cooperative Program shall be allocated 20% of the revenues appropriated to the office from the Tourism Marketing Performance Account;
(iii) the office, with approval from the board, shall establish eligibility, advertising, and timing requirements and criteria and provide for an approval process for applications;
(iv) an application from an eligible applicant to receive monies from the Cooperative Program must be submitted on or before the appropriate date established by the office; and
(v) Cooperative Program monies not used in each fiscal year shall be returned to the Tourism Marketing Performance Account.
(2) The board may:
(a) solicit and accept contributions of moneys, services, and facilities from any other sources, public or private and shall use these funds for promoting the general interest of the state in tourism; and
(b) establish subcommittees for the purpose of assisting the board in an advisory role only.
(3) The board may not, except as otherwise provided in Subsection (1)(a), make policy related to the management or operation of the office.
Section 1883. Section 63M-1-1404, which is renumbered from Section 63-38f-1409 is renumbered and amended to read:
[63-38f-1409
]. 63M-1-1404. Powers and duties of office related to tourism development plan -- Annual report and survey.(1) The office shall:
(a) be the tourism development authority of the state;
(b) develop a tourism advertising, marketing, and branding program for the state;
(c) receive approval from the Board of Tourism Development under Subsection [63-38f-1408] 63M-1-1403(1)(a) before implementing the out-of-state advertising, marketing, and branding campaign;
(d) develop a plan to increase the economic contribution by tourists visiting the state;
(e) plan and conduct a program of information, advertising, and publicity relating to the recreational, scenic, historic, and tourist advantages and attractions of the state at large; and
(f) encourage and assist in the coordination of the activities of persons, firms, associations, corporations, travel regions, counties, and governmental agencies engaged in publicizing, developing, and promoting the scenic attractions and tourist advantages of the state.
(2) Any plan provided for under Subsection (1) shall address, but not be limited to, enhancing the state's image, promoting Utah as a year-round destination, encouraging expenditures by visitors to the state, and expanding the markets where the state is promoted.
(3) The office shall conduct a regular and ongoing research program to identify statewide economic trends and conditions in the tourism sector of the economy and to provide an annual evaluation of the economic efficiency of the advertising and branding campaigns conducted under this part to the Legislature's Workforce Services and Community and Economic Development Interim Committee and the Economic Development and Human Resources Appropriations Subcommittee.
Section 1884. Section 63M-1-1405, which is renumbered from Section 63-38f-1410 is renumbered and amended to read:
[63-38f-1410
]. 63M-1-1405. Agreements with other governmental entities.The office may enter into agreements with state or federal agencies to accept services, quarters, or facilities as a contribution in carrying out the duties and functions of the office.
Section 1885. Section 63M-1-1406, which is renumbered from Section 63-38f-1411 is renumbered and amended to read:
[63-38f-1411
]. 63M-1-1406. Tourism Marketing Performance Account.(1) There is created within the General Fund a restricted account known as the Tourism Marketing Performance Account.
(2) The account shall be administered by the office for the purposes listed in Subsection (5).
(3) (a) The account shall earn interest.
(b) All interest earned on account monies shall be deposited into the account.
(c) Monies in the account are nonlapsing.
(4) The account shall be funded by appropriations made to the account by the Legislature in accordance with this section.
(5) The director may use account monies appropriated to the office to pay for the statewide advertising, marketing, and branding campaign for promotion of the state as conducted by the office.
(6) (a) For the fiscal year beginning July 1, 2007, the director shall allocate 10% of the account monies appropriated to the office to be distributed to a sports organization for advertising, marketing, branding, and promoting Utah in attracting sporting events into the state as determined by the office.
(b) For a fiscal year beginning on or after July 1, 2008, the amount distributed under Subsection (6)(a) shall be indexed from the July 1, 2007 fiscal year to reflect a percent increase or decrease of monies set aside into the account as compared to the previous fiscal year.
(c) The monies distributed under Subsections (6)(a) and (b) are nonlapsing.
(d) The office shall provide for an annual accounting to the office by a sports organization of the use of monies it receives under Subsection (6)(a) or (b).
(e) For purposes of this Subsection (6), "sports organization" means an organization that is:
(i) exempt from federal income taxation in accordance with Section 501(c)(3), Internal Revenue Code; and
(ii) created to foster national and international amateur sports competitions to be held in the state and sports tourism throughout the state, to include advertising, marketing, branding, and promoting Utah for the purpose of attracting sporting events into the state.
(7) (a) Monies set aside into the account shall be as follows:
(i) for the fiscal year beginning July 1, 2005 only, an amount appropriated in Section 7 of this bill;
(ii) for the fiscal year beginning July 1, 2006:
(A) the beginning nonlapsing appropriation balances, if any, in the Tourism Marketing Performance Account;
(B) any legislative appropriation from the sales and use tax revenue increases identified in Subsection (8); and
(C) any appropriation made by the Legislature from the General Fund to the account in an appropriations bill; and
(iii) for the fiscal year beginning July 1, 2007, and for each fiscal year thereafter, a $1,000,000 reduction in the prior year's appropriation sources other than the sales and use tax revenue increases identified in Subsection (8), plus a legislative appropriation from the cumulative sales and use tax revenue increases identified in Subsection (8).
(b) Monies in the account are nonlapsing.
(8) (a) In fiscal years 2006 through 2015, a portion of the state sales and use tax revenues determined under this Subsection (8) shall be certified as a set-aside for the account by the State Tax Commission and reported to the Office of Legislative Fiscal Analyst.
(b) The State Tax Commission shall determine the set-aside under this Subsection (8) in each fiscal year by applying the following formula: if the increase in the state sales and use tax revenues derived from the retail sales of tourist-oriented goods and services in the fiscal year two years prior to the fiscal year in which the set-aside is to be made for the account is at least 3% over the state sales and use tax revenues derived from the retail sales of tourist-oriented goods and services generated in the fiscal year three years prior to the fiscal year in which the set-aside is to be made, an amount equal to 1/2 of the state sales and use tax revenues generated above the 3% increase shall be calculated by the commission and set aside by the state treasurer for appropriation to the account.
(c) Total monies to be appropriated to the account in any fiscal year under Subsections (8)(a) and (b) may not exceed the amount in the account under this section in the fiscal year immediately preceding the current fiscal year by more than $3,000,000.
(d) As used in this Subsection (8), "sales of tourism-oriented goods and services" are those sales by businesses registered with the State Tax Commission under the following codes of the 1997 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget:
(i) NAICS Code 453 Miscellaneous Store Retailers;
(ii) NAICS Code 481 Passenger Air Transportation;
(iii) NAICS Code 487 Scenic and Sightseeing Transportation;
(iv) NAICS Code 711 Performing Arts, Spectator Sports and Related Industries;
(v) NAICS Code 712 Museums, Historical Sites and Similar Institutions;
(vi) NAICS Code 713 Amusement, Gambling and Recreation Industries;
(vii) NAICS Code 721 Accommodations;
(viii) NAICS Code 722 Food Services and Drinking Places;
(ix) NAICS Code 4483 Jewelry, Luggage, and Leather Goods Stores;
(x) NAICS Code 4853 Taxi and Limousine Service;
(xi) NAICS Code 4855 Charter Bus;
(xii) NAICS Code 5615 Travel Arrangement and Reservation Services;
(xiii) NAICS Code 44611 Pharmacies and Drug Stores;
(xiv) NAICS Code 45111 Sporting Goods Stores;
(xv) NAICS Code 45112 Hobby Toy and Game Stores;
(xvi) NAICS Code 45121 Book Stores and News Dealers;
(xvii) NAICS Code 445120 Convenience Stores without Gas Pumps;
(xviii) NAICS Code 447110 Gasoline Stations with Convenience Stores;
(xix) NAICS Code 447190 Other Gasoline Stations;
(xx) NAICS Code 532111 Passenger Car Rental; and
(xxi) NAICS Code 532292 Recreational Goods Rental.
Section 1886. Section 63M-1-1501, which is renumbered from Section 63-38f-1501 is renumbered and amended to read:
Part 15. Utah Pioneer Communities Program Act
[63-38f-1501]. 63M-1-1501. Title.
This part [shall be] is known as the "Utah Pioneer Communities Program Act."
Section 1887. Section 63M-1-1502, which is renumbered from Section 63-38f-1502 is renumbered and amended to read:
[63-38f-1502
]. 63M-1-1502. Definitions.As used in this part:
(1) "Advisory board" means the Utah Pioneer Communities Program Advisory Board created in Section [63-38f-1503] 63M-1-1503 within the office.
(2) "Community" means a city, county, town, or any combination of these.
(3) "Revitalization" means the process of engaging in activities to increase economic activity while preserving and building upon a location's historically significant characteristics.
Section 1888. Section 63M-1-1503, which is renumbered from Section 63-38f-1503 is renumbered and amended to read:
[63-38f-1503
]. 63M-1-1503. Advisory board.(1) (a) There is created within the office the Utah Pioneer Communities Advisory Board.
(b) The Permanent Community Impact Fund Board created in Section 9-4-304 shall act as the advisory board.
(2) The advisory board shall have the powers and duties described in Section [63-38f-1504] 63M-1-1504 and shall operate the Utah Pioneer Communities Program in accordance with Section [63-38f-1505] 63M-1-1505.
(3) The director shall designate an employee of the office to serve as a nonvoting secretary for the advisory board.
(4) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Higher education members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Higher education members may decline to receive per diem and expenses for their service.
(d) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
Section 1889. Section 63M-1-1504, which is renumbered from Section 63-38f-1504 is renumbered and amended to read:
[63-38f-1504
]. 63M-1-1504. Advisory board duties.(1) The advisory board shall:
(a) establish and administer a Utah Pioneer Communities Program to assist communities in planning, managing, and implementing programs for the revitalization of business districts and the preservation of their distinct history, heritage, and culture as a basis for promoting stable, sustained economic growth through business expansion and tourism;
(b) select, upon application by the community, communities to participate in the Utah Pioneer Communities Program;
(c) enter into contracts to obtain services related to community preservation and tourism development;
(d) with help from interested communities, individuals, and organizations, develop a plan describing the objectives of the Utah Pioneer Communities Program and the methods by which the advisory board shall:
(i) coordinate the activities of that program with the private and public sector; and
(ii) solicit and use private sector funding to revitalize business districts and provide services related to community preservation, tourism, and business development; and
(e) coordinate and consult with other state and local or public and private entities that provide services to communities undertaking projects to provide services related to community preservation, tourism, and business development.
(2) The advisory board shall provide training, technical assistance, and information on services related to community preservation, tourism, and business development.
Section 1890. Section 63M-1-1505, which is renumbered from Section 63-38f-1505 is renumbered and amended to read:
[63-38f-1505
]. 63M-1-1505. Criteria for participation -- Report.(1) The advisory board shall develop objective criteria including the following:
(a) a three year commitment by the applicant to provide a project manager with a travel and operating budget;
(b) evidence that both the business community and the local government support the Utah Pioneer Communities Program approach philosophically and financially;
(c) capacity for economic change as a result of being a participant in the program;
(d) geographic location, population, and economic base diversity;
(e) evidence of past preservation efforts; and
(f) a population of less than 50,000.
(2) The advisory board shall provide to the governor and to the presiding officer of each house of the Legislature an annual report on the effects of the Utah Pioneer Communities Program.
Section 1891. Section 63M-1-1601, which is renumbered from Section 63-38f-1601 is renumbered and amended to read:
Part 16. Rural Development Act
[63-38f-1601]. 63M-1-1601. Title -- Definitions.
(1) This part is known as the "Rural Development Act."
(2) As used in this part:
(a) "Office" means the Governor's Office of Economic Development.
(b) "Program" means the Rural Development Program.
Section 1892. Section 63M-1-1602, which is renumbered from Section 63-38f-1602 is renumbered and amended to read:
[63-38f-1602
]. 63M-1-1602. Rural Development Program -- Supervision by office.(1) There is created within the office the Rural Development Program.
(2) The program is under the administration and general supervision of the office.
Section 1893. Section 63M-1-1603, which is renumbered from Section 63-38f-1603 is renumbered and amended to read:
[63-38f-1603
]. 63M-1-1603. Purpose of the program.The program is established to:
(1) foster and support economic development programs and activities for the benefit of rural counties and communities;
(2) foster and support community, county, and resource management planning programs and activities for the benefit of rural counties and communities;
(3) foster and support leadership training programs and activities for the benefit of:
(a) rural leaders in both the public and private sectors;
(b) economic development and planning personnel; and
(c) rural government officials;
(4) foster and support efforts to coordinate and focus the technical and other resources of appropriate institutions of higher education, local governments, private sector interests, associations, nonprofit organizations, federal agencies, and others, in ways that address the economic development, planning, and leadership challenges and priorities of rural Utah as identified in the strategic plan required under Subsection 63C-10-103(2);
(5) work to enhance the capacity of the office to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions; and
(6) foster government-to-government collaboration and good working relations between state and rural government regarding economic development and planning issues.
Section 1894. Section 63M-1-1604, which is renumbered from Section 63-38f-1604 is renumbered and amended to read:
[63-38f-1604
]. 63M-1-1604. Duties.(1) The program shall:
(a) provide, in conjunction with the Rural Coordinating Committee, staff support to the Governor's Rural Partnership board;
(b) facilitate within the department implementation of the strategic plan prepared under Subsection 63C-10-103(2);
(c) work to enhance the capacity of the office to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions;
(d) work with the Rural Coordinating Committee to coordinate and focus available resources in ways that address the economic development, planning, and leadership training challenges and priorities in rural Utah; and
(e) in accordance with economic development and planning policies set by state government, coordinate relations between:
(i) the state;
(ii) rural governments;
(iii) other public and private groups engaged in rural economic planning and development; and
(iv) federal agencies.
(2) (a) The program may:
(i) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules necessary to carry out the duties of the office;
(ii) accept gifts, grants, devises, and property, in cash or in kind, for the benefit of rural Utah citizens; and
(iii) use those gifts, grants, devises, and property received under Subsection (2)(a)(ii) for the use and benefit of rural citizens within the state.
(b) All resources received under Subsection (2)(a)(ii) shall be deposited in the General Fund as dedicated credits to be used as directed in Subsection (2)(a)(iii).
(c) All funding for the benefit of rural Utah as defined in this section is nonlapsing.
Section 1895. Section 63M-1-1605, which is renumbered from Section 63-38f-1605 is renumbered and amended to read:
[63-38f-1605
]. 63M-1-1605. Program manager.(1) The director of the office shall appoint a manager for the program with the approval of the governor.
(2) The manager shall be a person knowledgeable in the field of rural economic development and planning and experienced in administration.
(3) Upon change of the director, the manager of the program may not be dismissed without cause for at least 180 days.
(4) The manager shall be a member of the Rural Coordinating Committee's Steering Committee created in Subsection 63C-10-202(3).
Section 1896. Section 63M-1-1606, which is renumbered from Section 63-38f-1606 is renumbered and amended to read:
[63-38f-1606
]. 63M-1-1606. Annual report.The office shall submit an annual report of the program's operations and recommendations to:
(1) the governor; and
(2) the Rural Development Legislative Liaison Committee created in Section 36-25-102.
Section 1897. Section 63M-1-1701, which is renumbered from Section 63-38f-1701 is renumbered and amended to read:
Part 17. Economic Development Incentives Act
[63-38f-1701]. 63M-1-1701. Title.
This part is known as the "Economic Development Incentives Act."
Section 1898. Section 63M-1-1702, which is renumbered from Section 63-38f-1702 is renumbered and amended to read:
[63-38f-1702
]. 63M-1-1702. Findings.(1) The Legislature finds that:
(a) to foster and develop industry in Utah is a public purpose necessary to assure adequate employment for, and the welfare of, Utah's citizens and the growth of the state's economy;
(b) Utah loses prospective high paying jobs, economic impacts, and corresponding incremental new state and local revenues to competing states because of a wide variety of competing economic incentives offered by those states; and
(c) economic development initiatives and interests of state and local economic development officials should be aligned and united in the creation of higher paying jobs that will lift the wage levels of the communities in which those jobs will be created.
(2) This part is enacted to:
(a) address the loss of new economic growth in Utah and the corresponding loss of incremental new state and local revenues by providing tax incremental financial incentives to attract new commercial projects in economic development zones in the state; and
(b) provide a cooperative and unified working relationship between state and local economic development efforts.
Section 1899. Section 63M-1-1703, which is renumbered from Section 63-38f-1703 is renumbered and amended to read:
[63-38f-1703
]. 63M-1-1703. Definitions.As used in this part:
(1) "Development zone" means an economic development zone created under Section [63-38f-1704] 63M-1-1704.
(2) "High paying jobs" means the annual wages of employment positions that compare favorably against the median wage of a community in which the jobs will exist.
(3) "Local incentives" means financial and other assistance provided by local taxing authorities within a development zone, which may include:
(a) partial rebates of new local revenues; and
(b) other sources of funds under authority of state law or local ordinances, or both state law and local ordinances.
(4) "New incremental jobs" means jobs that are:
(a) not shifted from one jurisdiction in the state to another jurisdiction in the state; and
(b) created in addition to the baseline count of jobs already in existence within a company or employed by an individual.
(5) "New local revenues" mean incremental new local tax revenues that are generated as a result of new economic commercial projects in a development zone, to include the local government's portion of sales taxes, property taxes, impact fees, and other taxes or fees, or both taxes and fees, derived from the projects, together with indirect local government revenues generated by the projects, but not to include any portion of sales taxes earmarked for state government or other taxing jurisdictions eligible for sales tax revenues.
(6) "New state revenues" means incremental new state tax revenues that are generated as a result of new economic commercial projects in a development zone, to include the state's portion of sales taxes, and company and employee income taxes derived from the projects, together with indirect state revenues generated by the projects, but not to include any portion of sales taxes earmarked for local governments or other taxing jurisdictions eligible for sales tax revenues.
(7) "Office" means the Governor's Office of Economic Development.
(8) "Partial rebates" means returning a portion of the new local revenues and new state revenues generated by new commercial projects to companies or individuals that have created new economic growth within a development zone.
Section 1900. Section 63M-1-1704, which is renumbered from Section 63-38f-1704 is renumbered and amended to read:
[63-38f-1704
]. 63M-1-1704. Creation of economic development zones -- Incentives.(1) The office, with advice from the board, may create an economic development zone in the state that satisfies all of the following requirements:
(a) the area is zoned commercial, industrial, manufacturing, business park, research park, or other appropriate use in a community approved master plan; and
(b) the request to create a development zone has been forwarded to the office after first being approved by an appropriate local government entity that has committed or will commit to provide local incentives.
(2) (a) The office, with advice from the board, may enter into agreements providing for partial rebates of new state revenues generated by new commercial projects to companies or individuals that create new economic growth within a development zone under the same restrictions and limitations as provided in Section [63-38f-1304] 63M-1-1304.
(b) The limitations and restrictions applied to partial rebates of new state revenues in Section [63-38f-1304] 63M-1-1304 also apply to partial rebates of new local revenues under this part.
Section 1901. Section 63M-1-1705, which is renumbered from Section 63-38f-1705 is renumbered and amended to read:
[63-38f-1705
]. 63M-1-1705. Qualifications for rebates -- Payment procedure.(1) The office shall set standards to qualify for partial rebates under this part, subject to the following:
(a) the qualification criteria established in Subsections [63-38f-1305] 63M-1-1305(1), (2), (3), (4), and (6); and
(b) only projects that include significant capital investment, the creation of high paying jobs, or significant purchases from Utah vendors and providers, or any combination of these three economic factors are eligible for partial rebates.
(2) A payment of partial rebates of new state revenues shall be made in accordance with procedures adopted by the office, with advice from the board, to include the payment procedures described in Section [63-38f-1306] 63M-1-1306 as applied to partial rebates authorized under this part.
Section 1902. Section 63M-1-1706, which is renumbered from Section 63-38f-1706 is renumbered and amended to read:
[63-38f-1706
]. 63M-1-1706. Office's authority -- Report to Legislature.(1) The office, with advice from the board, and within the limitations of this part, may determine:
(a) the structure and amount of any partial rebates offered under this part;
(b) the economic impacts and job creation necessary to qualify for the incentive; and
(c) the other terms and conditions of an agreement entered into under this part.
(2) In reviewing claims for partial rebates of new state revenues, the office may accept the same type of information and evidence allowed under Subsections [63-38f-1307] 63M-1-1307(2)(a) and (b).
(3) (a) The office shall make a report to the Legislature's Workforce Services and Community and Economic Development Interim Committee on:
(i) the success of attracting new commercial projects to development zones under this part and the corresponding increase in new incremental jobs;
(ii) the period of time over which partial rebates of new state revenues shall be granted under this part; and
(iii) the economic impact on the state related to generating new state revenues and rebating a portion of those revenues under this part.
(b) The office shall make the report prior to the 2006 General Session of the Legislature to enable the committee to determine whether this part should be modified during the 2006 General Session.
Section 1903. Section 63M-1-1801, which is renumbered from Section 63-38f-1801 is renumbered and amended to read:
Part 18. Motion Picture Incentive Fund
[63-38f-1801]. 63M-1-1801. Purpose.
(1) The Legislature finds that:
(a) the state's natural beauty, scenic wonders, and diverse topography provide a variety of magnificent settings from which the motion picture industry can choose to film part or all of major or independent motion pictures, made-for-television movies, and television series;
(b) the state has an abundance of resources, including a skilled and able workforce, the required infrastructure, and a friendly and hospitable populace that have been instrumental in the filming of several successful motion pictures and television series; and
(c) further development of the motion picture industry in Utah is a state public purpose that will significantly impact growth in the state's economy and contribute to the fiscal well being of the state and its people.
(2) The purpose of this part is to:
(a) encourage the use of Utah as a site for the production of motion pictures, television series, and made-for-television movies;
(b) provide a financial incentive to the film industry so that Utah might compete successfully with other states and countries for filming locations; and
(c) help develop a strong motion picture industry presence in the state that will contribute substantially to improving the state's economy.
Section 1904. Section 63M-1-1802, which is renumbered from Section 63-38f-1802 is renumbered and amended to read:
[63-38f-1802
]. 63M-1-1802. Definitions.As used in this part:
(1) "Administrator" means the director of the Governor's Office of Economic Development or the director's designee.
(2) "Board" means the Board of Business and Economic Development.
(3) "Fund" means the restricted account known as the Motion Picture Incentive Fund created in Section [63-38f-1803] 63M-1-1803.
(4) "Motion picture company" means a company engaged in the production of motion pictures, television series, or made-for-television movies.
(5) "State-approved production" means a motion picture, television series, or made-for-television movie approved by the administrator and ratified by the board that is produced in the state by a motion picture company.
Section 1905. Section 63M-1-1803, which is renumbered from Section 63-38f-1803 is renumbered and amended to read:
[63-38f-1803
]. 63M-1-1803. Motion Picture Incentive Fund created.(1) There is created within the General Fund a restricted account known as the Motion Picture Incentive Fund, which shall be used to provide incentives for within-the-state production of television series, made-for-television movies, and motion pictures, including feature films and independent films.
(2) (a) The fund shall be administered by the administrator with advice from the board.
(b) The administrator, with advice from the board, shall approve fund policies and qualification criteria to receive an incentive award consistent with the provisions of this part.
(3) All interest generated from investment of money in the fund shall be deposited in the fund.
(4) The fund shall consist of an annual appropriation by the Legislature.
Section 1906. Section 63M-1-1804, which is renumbered from Section 63-38f-1804 is renumbered and amended to read:
[63-38f-1804
]. 63M-1-1804. Financial incentives for motion picture productions.(1) A motion picture company that has a state-approved production under this section may receive a financial incentive from the fund as provided in this section.
(2) (a) The administrator has authority to determine the structure, amount, and nature of the incentive given to a motion picture company, subject to the limitations and considerations set out in Subsections (3) and (4).
(b) A financial incentive shall be paid to a motion picture company from the fund only after the administrator has determined with advice from the board that the motion picture company has satisfied the conditions upon which the incentive is to be given.
(3) (a) In each fiscal year, the money in the fund shall be used for incentives to motion picture companies for state-approved productions that are either television series, made-for-television movies, or motion pictures, which may include both feature films and independent films.
(b) An incentive awarded under Subsection (3)(a) for a motion picture production may not exceed $500,000 per production.
(4) (a) The administrator shall enter into agreements with motion picture companies that represent postperformance incentive grants that take into consideration:
(i) the fact that financing has been obtained and is in place for the production;
(ii) distribution is in place, except that the administrator may make allowances for an independent filmmaker who plans to shop the production on a film festival circuit;
(iii) the economic impact of the production on the state; and
(iv) the production represents new incremental economic activity in the state as opposed to existing economic activity.
(b) The administrator may also consider giving preference to a production that stimulates economic activity in rural areas of the state or that has Utah content, such as recognizing that the production was made in the state or uses Utah as Utah in the production.
Section 1907. Section 63M-1-1805, which is renumbered from Section 63-38f-1805 is renumbered and amended to read:
[63-38f-1805
]. 63M-1-1805. Annual report.(1) The administrator shall prepare an annual report for the board on the economic impact of this part.
(2) The board shall present the report to the Legislature's Workforce Services and Community and Economic Development Interim Committee and the Economic Development and Human Resources Appropriations Subcommittee, together with any proposed recommendations for modifications in this part or the annual ongoing appropriation for the fund.
Section 1908. Section 63M-1-1901, which is renumbered from Section 63-38f-1901 is renumbered and amended to read:
Part 19. Economic Development on Military Installations
[63-38f-1901]. 63M-1-1901. Military installation projects for economic development -- Funding -- Criteria -- Dispersal -- Report.
(1) The Legislature recognizes that significant growth in the state's economy can be achieved by state and local support of the continuing expansion and development of federal military installations throughout the state.
(2) The office, through its director, may receive and distribute legislative appropriations and public and private grants and donations for military installation projects that:
(a) have a strong probability of increasing the growth and development of a military facility within the state, thereby providing significant economic benefits to the state;
(b) will provide a significant number of new jobs within the state that should remain within the state for a period of several years; and
(c) involve a partnership between the military and private industry or local government or the military and private industry and local government.
(3) (a) The director may distribute monies under this section to:
(i) a regional or statewide nonprofit economic development organization; or
(ii) a federal military partnership that has the mission of promoting the economic growth of a military installation.
(b) The director shall make a distribution under this section upon:
(i) receipt of an application on a form prescribed by the office that lists:
(A) the particulars of the proposed use of the monies requested, such as needed equipment purchases and anticipated training costs;
(B) the estimated number of new jobs that will be created by the proposed project;
(C) pending contracts related to the project that are to be finalized from funding anticipated under this section; and
(D) a projected date on which the applicant shall provide the director with a report on the implementation and performance of the project, including the creation of new jobs; and
(ii) a determination by the director that the project satisfies the requirements listed in Subsection (2).
(c) (i) The office shall monitor the activities of a recipient of monies under this section to ensure that there is compliance with the terms and conditions imposed on the recipient under this part.
(ii) The office shall make an annual report to the Legislature's Workforce Services and Community and Economic Development Interim Committee and the Executive Appropriations Committee on the use and impact of the monies distributed under this section, with the first report to occur not later than September 1, 2005.
(4) For the fiscal year ending June 30, 2005, the director may disperse an amount not to exceed $5,000,000 for projects referred to under this section.
Section 1909. Section 63M-1-2001, which is renumbered from Section 63-38f-2001 is renumbered and amended to read:
Part 20. Business Development for Disadvantaged Rural Communities Act
[63-38f-2001]. 63M-1-2001. Title.
This part is known as the "Business Development for Disadvantaged Rural Communities Act."
Section 1910. Section 63M-1-2002, which is renumbered from Section 63-38f-2002 is renumbered and amended to read:
[63-38f-2002
]. 63M-1-2002. Definitions.As used in this part:
(1) "Board" means the Board of Business and Economic Development created by Section [63-38f-301] 63M-1-301.
(2) "Business incubator expense" means an expense relating to funding a program that is:
(a) designed to provide business support services and resources to one or more business entities within a project area during the business entities' early stages of development; and
(b) determined to be a business incubator by the board.
(3) "Business rehabilitation expense" means an expense relating to the renovation or rehabilitation of an existing building within a project area as determined by the board.
(4) "Debt service" means the payment of debt service on a bond issued to pay a:
(a) business rehabilitation expense relating to a project; or
(b) public infrastructure expense relating to a project.
(5) "Eligible county" means a county of the third, fourth, fifth, or sixth class.
(6) "Eligible expense" means an expense:
(a) incurred by an eligible county;
(b) relating to a project; and
(c) that is:
(i) a business incubator expense;
(ii) debt service; or
(iii) a public infrastructure expense.
(7) "Project" means an economic development project:
(a) as determined by the board; and
(b) for which an eligible county applies to the board in accordance with this part for a loan or grant to assist the eligible county in paying an eligible expense.
(8) "Project area" means the geographic area within which a project is implemented by an eligible county.
(9) "Public infrastructure expense" means an expense relating to a publicly owned improvement located within a project area if:
(a) the expense is:
(i) incurred for:
(A) construction;
(B) demolition;
(C) design;
(D) engineering;
(E) an environmental impact study;
(F) environmental remediation; or
(G) rehabilitation; or
(ii) similar to an expense described in Subsection (9)(a)(i) as determined by the board; and
(b) the publicly owned improvement is:
(i) not a building as determined by the board; and
(ii) necessary to support a project as determined by the board.
(10) "Publicly owned improvement" means an improvement to real property if:
(a) the real property is owned by:
(i) the United States;
(ii) the state; or
(iii) a political subdivision:
(A) as defined in Section 17B-1-102; and
(B) of the state; and
(b) the improvement relates to:
(i) a sewage system including a system for collection, transport, storage, treatment, dispersal, effluent use, or discharge;
(ii) a drainage or flood control system, including a system for collection, transport, diversion, storage, detention, retention, dispersal, use, or discharge;
(iii) a water system including a system for production, collection, storage, treatment, transport, delivery, connection, or dispersal;
(iv) a highway, street, or road system for vehicular use for travel, ingress, or egress;
(v) a rail transportation system;
(vi) a system for pedestrian use for travel, ingress, or egress;
(vii) a public utility system including a system for electricity, gas, or telecommunications; or
(viii) a system or device that is similar to a system or device described in Subsections (10)(b)(i) through (vii) as determined by the board.
(11) "Restricted account" means the Business Development for Disadvantaged Rural Communities Restricted Account created by Section [63-38f-2003] 63M-1-2003.
Section 1911. Section 63M-1-2003, which is renumbered from Section 63-38f-2003 is renumbered and amended to read:
[63-38f-2003
]. 63M-1-2003. Creation of Business Development for Disadvantaged Rural Communities Restricted Account -- Interest -- Costs of administering the restricted account -- Monies and interest nonlapsing -- Deposit of certain monies and interest into General Fund.(1) There is created within the General Fund the Business Development for Disadvantaged Rural Communities Restricted Account.
(2) The restricted account shall be funded by:
(a) monies appropriated to the account by the Legislature;
(b) monies received by the office as:
(i) repayment of a loan that the board grants to an eligible county under this part; and
(ii) interest on a loan described in Subsection (2)(b)(i); and
(c) the interest described in Subsection (3).
(3) (a) The restricted account shall earn interest.
(b) The interest described in Subsection (3)(a) shall be deposited into the account.
(4) Upon appropriation by the Legislature, the monies and interest deposited into the restricted account in accordance with this section may be expended:
(a) by the board to award grants or loans to eligible counties as provided in this part; and
(b) to cover the costs of administering this part:
(i) in an amount not to exceed $5,000 in any fiscal year; and
(ii) including the costs of providing staff support to administer this part.
(5) (a) Except as provided in Subsection (5)(b), the monies and interest deposited into the restricted account in accordance with this section are nonlapsing.
(b) Notwithstanding Subsection (5)(a), the Division of Finance shall deposit any monies and interest in the restricted account on July 1, 2015 into the General Fund.
Section 1912. Section 63M-1-2004, which is renumbered from Section 63-38f-2004 is renumbered and amended to read:
[63-38f-2004
]. 63M-1-2004. Board authority to award a grant or loan to an eligible county -- Interest on a loan -- Eligible county proposal process -- Process for awarding a grant or loan.(1) (a) Subject to the provisions of this section, beginning on July 1, 2005, through June 30, 2015, the board may make an award to an eligible county:
(i) of one or more of the following to assist in paying an eligible expense relating to a project:
(A) a grant; or
(B) a loan; and
(ii) from amounts or interest deposited into the restricted account in accordance with Section [63-38f-2003] 63M-1-2003 to the extent that there is a balance in the restricted account sufficient to cover the amount of the award.
(b) The total amount of grants and loans that the board may award in accordance with this section relating to one project is $75,000.
(c) If the board awards a loan to an eligible county in accordance with this section, the loan shall be subject to interest as provided by the procedures and methods referred to in Subsection (6).
(2) (a) Before the board may award an eligible county a grant or loan in accordance with this section, the eligible county shall submit a written proposal to the board in accordance with Subsection (2)(b).
(b) The proposal described in Subsection (2)(a) shall:
(i) describe the project area;
(ii) describe the characteristics of the project including a description of how the project will be implemented;
(iii) provide an economic development plan for the project including a description of any eligible expenses that will be incurred as part of implementing the project;
(iv) describe the characteristics of the community within which the project area is located;
(v) establish that the community within which the project area is located is a disadvantaged community on the basis of one or more of the following factors:
(A) median income per capita within the community;
(B) median property tax revenues generated within the community;
(C) median sales and use tax revenues generated within the community; or
(D) unemployment rates within the community;
(vi) demonstrate that there is a need for the project in the community within which the project area is located;
(vii) describe the short-term and long-term benefits of the project to the community within which the project area is located;
(viii) demonstrate that there is a need for assistance in paying eligible expenses relating to the project;
(ix) indicate the amount of any revenues that will be pledged to match any funds the board may award as a loan or grant under this section; and
(x) indicate whether there is support for the implementation of the project from:
(A) the community within which the project area is located; and
(B) any cities or towns within which the project area is located.
(3) At the request of the board, representatives from an eligible county shall appear before the board to:
(a) present a proposal submitted in accordance with Subsection (2)(b); and
(b) respond to any questions or issues raised by the board relating to eligibility to receive a grant or loan under this section.
(4) The board shall:
(a) consider a proposal submitted to the board in accordance with Subsection (2);
(b) make written findings as to whether the proposal described in Subsection (4)(a) meets the requirements of Subsection (2)(b);
(c) make written findings as to whether to award the eligible county that submitted the proposal described in Subsection (4)(a) one or more grants or loans:
(i) on the basis of the factors established in Subsection (5);
(ii) in consultation with the director; and
(iii) in accordance with the procedures established for prioritizing which projects may be awarded a grant or loan by the board under this section;
(d) if the board determines to award an eligible county a grant or loan in accordance with this section, make written findings in consultation with the director specifying the:
(i) amount of the grant or loan;
(ii) time period for distributing the grant or loan;
(iii) terms and conditions that the eligible county shall meet to receive the grant or loan;
(iv) structure of the grant or loan; and
(v) eligible expenses for which the eligible county may expend the grant or loan;
(e) if the board determines to award an eligible county a loan in accordance with this section, make written findings stating:
(i) the method of calculating interest applicable to the loan; and
(ii) procedures for:
(A) applying interest to the loan; and
(B) paying interest on the loan; and
(f) provide the written findings required by Subsections (4)(b) through (e) to the eligible county.
(5) For purposes of Subsection (4)(c), the board shall consider the following factors in determining whether to award an eligible county one or more grants or loans authorized by this part:
(a) whether the project is likely to result in economic development in the community within which the project area is located;
(b) whether the community within which the project area is located is a disadvantaged community on the basis of one or more of the following factors:
(i) median income per capita within the community;
(ii) median property tax revenues generated within the community;
(iii) median sales and use tax revenues generated within the community; or
(iv) unemployment rates within the community;
(c) whether there is a need for the project in the community within which the project area is located;
(d) whether the project is likely to produce short-term and long-term benefits to the community within which the project area is located;
(e) whether the project would be successfully implemented without the board awarding a grant or a loan to the eligible county;
(f) whether any revenues will be pledged to match any funds the board may award as a grant or loan under this section;
(g) whether there is support for the implementation of the project from:
(i) the community within which the project area is located; and
(ii) any cities or towns within which the project area is located; and
(h) any other factor as determined by the board.
(6) The office shall establish procedures:
(a) for prioritizing which projects may be awarded a grant or loan by the board under this section; and
(b) for loans awarded in accordance with this section:
(i) the methods of calculating interest applicable to the loans; and
(ii) procedures for:
(A) applying interest to the loans; and
(B) paying interest on the loans.
Section 1913. Section 63M-1-2005, which is renumbered from Section 63-38f-2005 is renumbered and amended to read:
[63-38f-2005
]. 63M-1-2005. Agreement between the executive director and an eligible county -- Failure to meet or violation of a term or condition of an agreement.(1) Before an eligible county that has been awarded a grant or loan in accordance with Section [63-38f-2004] 63M-1-2004 may receive the grant or loan, the eligible county shall enter into a written agreement with the director.
(2) The written agreement described in Subsection (1):
(a) shall:
(i) specify the amount of the grant or loan;
(ii) specify the time period for distributing the grant or loan;
(iii) specify the terms and conditions that the eligible county shall meet to receive the grant or loan;
(iv) specify the structure of the grant or loan;
(v) specify the eligible expenses for which the eligible county may expend the grant or loan;
(vi) if the eligible county has been awarded a loan:
(A) specify the repayment schedule for the loan;
(B) specify the method of calculating interest applicable to the loan; and
(C) specify procedures for:
(I) applying interest to the loan; and
(II) paying interest on the loan; and
(vii) subject to Subsection (3), contain provisions governing the failure to meet or the violation of a term or condition of the agreement; and
(b) may contain any other provision as determined by the director.
(3) (a) Except as provided in Subsection (3)(b), and subject to Subsection (3)(c), if an eligible county fails to meet or violates any provision of the agreement described in Subsection (2), the board shall impose one or more of the following penalties:
(i) require the eligible county to repay all or a portion of the amount of any grant or loan the eligible county received in an amount determined by the board;
(ii) provide that an eligible county may not receive any amounts of a grant or loan that the eligible county has been awarded in accordance with Section [63-38f-2004] 63M-1-2004 but has not received; or
(iii) provide that an eligible county may not be awarded a grant or loan under this part for a time period determined by the board.
(b) Notwithstanding Subsection (3)(a), the board may waive, reduce, or compromise a penalty described in Subsection (3)(a) if an eligible county demonstrates that reasonable cause exists for the eligible county failing to meet or violating a provision of the agreement described in Subsection (2).
(c) If the board imposes a penalty in accordance with this Subsection (3) on an eligible county, the board shall provide written notice of the penalty to the eligible county within ten calendar days after the day on which the board determines to impose the penalty.
Section 1914. Section 63M-1-2006, which is renumbered from Section 63-38f-2006 is renumbered and amended to read:
[63-38f-2006
]. 63M-1-2006. Report to Workforce Services and Community and Economic Development Interim Committee.The board shall annually report to the Workforce Services and Community and Economic Development Interim Committee on or before the November interim meeting:
(1) the total amount of grants and loans the board awarded to eligible counties under this part during the fiscal year that ended on the June 30 immediately preceding the November interim meeting;
(2) a description of the projects with respect to which the board awarded a grant or loan under this part;
(3) the total amount of outstanding debt service that is being repaid by a grant or loan awarded under this part;
(4) on whether the grants and loans awarded under this part have resulted in economic development within project areas;
(5) on whether the board recommends:
(a) that the grants and loans authorized by this part should be continued; or
(b) any modifications to this part; and
(6) on any other issue relating to this part as determined by the Workforce Services and Community and Economic Development Interim Committee.
Section 1915. Section 63M-1-2101, which is renumbered from Section 63-38f-2101 is renumbered and amended to read:
Part 21. Economic Development - Government Procurement Contracts
[63-38f-2101]. 63M-1-2101. Projects to assist companies secure new business with federal, state, and local governments.
(1) The Legislature recognizes that:
(a) many Utah companies provide products and services which are routinely procured by a myriad of governmental entities at all levels of government, but that attempting to understand and comply with the numerous certification, registration, proposal, and contract requirements associated with government procurement often raises significant barriers for those companies with no government contracting experience;
(b) the costs associated with obtaining a government contract for products or services often prevent most small businesses from working in the governmental procurement market;
(c) currently a majority of federal procurement opportunities are contracted to businesses located outside of the state;
(d) the Governor's Office of Economic Development currently administers programs and initiatives that help create and grow companies in Utah and recruit companies to Utah through the use of state employees, public-private partnerships, and contractual services; and
(e) there exists a significant opportunity for Utah companies to secure new business with federal, state, and local governments.
(2) The office, through its director:
(a) shall manage and direct the administration of state and federal programs and initiatives whose purpose is to procure federal, state, and local governmental contracts;
(b) may require program accountability measures; and
(c) may receive and distribute legislative appropriations and public and private grants for projects and programs that:
(i) are focused on growing Utah companies and positively impacting statewide revenues by helping these companies secure new business with federal, state, and local governments;
(ii) provide guidance to Utah companies interested in obtaining new business with federal, state, and local governmental entities;
(iii) would facilitate marketing, business development, and expansion opportunities for Utah companies in cooperation with the Governor's Office of Economic Development's Procurement Technical Assistance Center Program and with public, non-profit, or private sector partners such as local chambers of commerce, trade associations, or private contractors as determined by the office's director to successfully match Utah businesses with government procurement opportunities; and
(iv) may include the following components:
(A) recruitment, individualized consultation, and an introduction to government contracting;
(B) specialized contractor training for companies located in Utah;
(C) a Utah contractor matching program for government requirements;
(D) experienced proposal and bid support; and
(E) specialized support services.
(3) (a) The office, through its director, shall make any distribution referred to in Subsection (2) on a semiannual basis.
(b) A recipient of monies distributed under this section shall provide the office with a set of standard monthly reports, the content of which shall be determined by the office to include at least the following information:
(i) consultive meetings with Utah companies;
(ii) seminars or training meetings held;
(iii) government contracts awarded to Utah companies;
(iv) increased revenues generated by Utah companies from new government contracts;
(v) jobs created;
(vi) salary ranges of new jobs; and
(vii) the value of contracts generated.
Section 1916. Section 63M-1-2201, which is renumbered from Section 63-38f-2201 is renumbered and amended to read:
Part 22. Transient Room Tax Fund Act
[63-38f-2201]. 63M-1-2201. Title.
This part is known as the "Transient Room Tax Fund Act."
Section 1917. Section 63M-1-2202, which is renumbered from Section 63-38f-2202 is renumbered and amended to read:
[63-38f-2202
]. 63M-1-2202. Definitions.As used in this part, "fund" means the Transient Room Tax Fund created by Section [63-38f-2203] 63M-1-2203.
Section 1918. Section 63M-1-2203, which is renumbered from Section 63-38f-2203 is renumbered and amended to read:
[63-38f-2203
]. 63M-1-2203. Transient Room Tax Fund -- Source of revenues -- Interest -- Expenditure or pledge of revenues.(1) There is created a restricted special revenue fund known as the Transient Room Tax Fund.
(2) (a) The fund shall be funded by the portion of the sales and use tax described in Subsection 59-12-301(2).
(b) (i) The fund shall earn interest.
(ii) Any interest earned on fund monies shall be deposited into the fund.
(3) (a) Subject to Subsection (3)(b), the director shall expend or pledge the monies deposited into the fund:
(i) to mitigate the impacts of traffic and parking relating to a convention facility within a county of the first class;
(ii) for a purpose listed in Section 17-31-2, except that any requirements in Section 17-31-2 for the expenditure of monies do not apply; or
(iii) for a combination of Subsections (3)(a)(i) and (ii).
(b) The director may not expend more than $20,000,000 in total to mitigate the impacts of traffic and parking relating to a convention facility within a county of the first class.
Section 1919. Section 63M-1-2301, which is renumbered from Section 63-38f-2301 is renumbered and amended to read:
Part 23. Rural Broadband Service Fund Act
[63-38f-2301]. 63M-1-2301. Title.
This part is known as the "Rural Broadband Service Fund Act."
Section 1920. Section 63M-1-2302, which is renumbered from Section 63-38f-2302 is renumbered and amended to read:
[63-38f-2302
]. 63M-1-2302. Definitions.As used in this part:
(1) "Broadband service" means any wire line technology identified by the director as having the capacity to transmit data from and to a subscriber's computer to the Internet or Internet-related services at a minimum rate of data transmission of 256 kilobits per second.
(2) "Fund" means the restricted account known as the Rural Broadband Service Fund created in Section [63-38f-2303] 63M-1-2303.
(3) "Provider" means a person who will provide retail broadband service to subscribers in a rural area.
(4) "Rural area" means any territory in the state:
(a) within a city, town, or unincorporated area with a population of 10,000 or less based on the most recently published data of the United States Census Bureau; and
(b) in which broadband service is not available.
Section 1921. Section 63M-1-2303, which is renumbered from Section 63-38f-2303 is renumbered and amended to read:
[63-38f-2303
]. 63M-1-2303. Rural Broadband Service Fund created -- Interest -- Costs -- Deposits to the General Fund.(1) There is created within the General Fund a restricted account known as the Rural Broadband Service Fund.
(2) The fund shall be funded by:
(a) monies appropriated to the fund by the Legislature; and
(b) the interest described in Subsection (3).
(3) (a) The fund shall earn interest.
(b) The interest described in Subsection (3)(a) shall be deposited into the fund.
(4) Upon appropriation by the Legislature, the monies and interest deposited into the fund in accordance with this section may be expended:
(a) by the director with the advice of the board to award grants to providers as provided in this part; and
(b) to cover the costs of administering this part in an amount during any fiscal year not to exceed 2% of the fund balance at the start of any fiscal year.
(5) (a) Except as provided in Subsection (5)(b), the monies and interest deposited into the fund in accordance with this section shall be nonlapsing.
(b) Notwithstanding Subsection (5)(a), the Division of Finance shall deposit any monies and interest in the fund into the General Fund on July 1, 2010.
Section 1922. Section 63M-1-2304, which is renumbered from Section 63-38f-2304 is renumbered and amended to read:
[63-38f-2304
]. 63M-1-2304. Grants for rural broadband deployment.(1) (a) A provider that wishes to deploy broadband service in a rural area may file an application for a grant with the office.
(b) An application shall:
(i) be accompanied by an affidavit executed by the provider under oath; and
(ii) provide information prescribed in rules adopted by the director.
(2) The director shall:
(a) provide reasonable public notice of an application;
(b) allow public comment on the application for a reasonable period of time;
(c) allow any other provider a reasonable opportunity to file an application to provide broadband service in all or part of the rural area specified in the application filed under Subsection (1); and
(d) make rules concerning the method of providing public notice, the time period for public comment, and the manner of filing a competing application.
(3) (a) The office shall review all applications submitted in accordance with Subsections (1) and (2) to provide broadband service in a rural area.
(b) In reviewing any application, the office may obtain information from the provider or others and conduct its own analysis of any issue relevant to the application, including economic development.
(4) After review of all applications for any rural area in accordance with Subsection (3), the director may approve an application and enter into a written agreement with a provider to provide a grant from the fund if the director, with the advice of the board, is satisfied that the provider's application establishes that:
(a) the provider has the financial, managerial, and technical ability to deploy broadband service in the rural area in accordance with the application;
(b) the territory in which the provider proposes to deploy broadband service is a rural area;
(c) the cost of deployment of broadband service in the rural area is reasonable;
(d) the initial terms and conditions on which broadband service will be made available to potential subscribers in the rural area are reasonable;
(e) the provider has a viable business plan to continue providing broadband service to all or some subscribers within the rural area;
(f) if a competitive application was filed for the rural area, the provider's application is the most advantageous application to potential subscribers or the state; and
(g) the application otherwise meets the requirements of this part and any rules adopted by the director concerning broadband service deployment.
(5) (a) The director may, with the advice of the board, require the provider to make adjustments to the application or agree to reasonable conditions consistent with the purposes of this part before approving the application.
(b) Any adjustments and conditions required by the director shall be included in the written agreement entered into with the provider.
(6) The amount of any grant provided from the fund shall be no greater than the lesser of 1/2 of:
(a) the actual cost of deployment of broadband service in the rural area as established by verified accounts filed with the office after completion of deployment; or
(b) the projected amount established during the application process by the director and board for the deployment of broadband service in the rural area as provided in the verified application.
(7) Upon completion of deployment of broadband service by a provider in accordance with the terms of an agreement as provided in Subsection (4), the director shall pay the amount of the grant agreed upon consistent with Subsection (6) to the provider from the fund.
(8) In making any determination required under this section, the director, the office, and the board:
(a) may not discriminate against any accepted technology for provision of broadband service other than for reasons of cost or the terms and conditions upon which the provider proposes to provide broadband service to potential subscribers; and
(b) may consult with the Division of Public Utilities created in Section 13-1-2.
Section 1923. Section 63M-1-2305, which is renumbered from Section 63-38f-2305 is renumbered and amended to read:
[63-38f-2305
]. 63M-1-2305. Annual report.(1) The office shall make a report to the Legislature's Workforce Services and Community and Economic Development Interim Committee by October 1 of each year until the fund is terminated under Subsection [63-38f-2303] 63M-1-2303(5)(b).
(2) The report required by Subsection (1) shall provide information concerning deployment of broadband service using grants from the fund, pending applications, the balance remaining in the fund, and suggested appropriations to the fund to achieve the purposes of this part.
Section 1924. Section 63M-1-2306, which is renumbered from Section 63-38f-2306 is renumbered and amended to read:
[63-38f-2306
]. 63M-1-2306. Rules.The director, with the advice of the board, may, makes rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to administer this part.
Section 1925. Section 63M-2-101, which is renumbered from Section 63-38g-101 is renumbered and amended to read:
CHAPTER 2. UTAH SCIENCE TECHNOLOGY AND
RESEARCH GOVERNING AUTHORITY ACT
Part 1. General Provisions
[63-38g-101]. 63M-2-101. Title.
This chapter is known as the "Utah Science Technology and Research Governing Authority Act."
Section 1926. Section 63M-2-102, which is renumbered from Section 63-38g-102 is renumbered and amended to read:
[63-38g-102
]. 63M-2-102. Definitions.As used in this chapter:
(1) "Commercialization revenues " means dividends, realized capital gains, license fees, royalty fees, and other revenues received by a university as a result of commercial applications developed from the project, less:
(a) the portion of those revenues allocated to the inventor; and
(b) expenditures incurred by the university to legally protect the intellectual property.
(2) "Executive director" means the person appointed by the governing authority under Section [63-38g-301] 63M-2-301.
(3) "Governing authority" means the Utah Science Technology and Research Governing Authority created in Section [63-38g-301] 63M-2-301.
(4) "Project" means the Utah Science Technology and Research Project.
(5) "Research buildings" means any of the buildings listed in Section [63-38g-201] 63M-2-201.
(6) "Research universities" means the University of Utah and Utah State University.
(7) "Technology outreach program" means the program required by Section [63-38g-202] 63M-2-202.
(8) "Utah Science Technology and Research Project" means the buildings and activities described in Part 2, Utah Science Technology and Research Project.
Section 1927. Section 63M-2-201, which is renumbered from Section 63-38g-201 is renumbered and amended to read:
Part 2. Utah Science Technology and Research Project
[63-38g-201]. 63M-2-201. Science technology research buildings.
(1) As funding becomes available from the Legislature or other sources, the Utah Science Technology and Research Governing Authority created in Part 3 shall:
(a) construct at Utah State University:
(i) a Bio Innovations Research Institute;
(ii) an Infectious Disease Research Center; and
(iii) an Informatics/Computing Research Center; and
(b) construct at the University of Utah:
(i) a Neuroscience and Biomedical Technology Research Building; and
(ii) an Information Technology and Bioinformatics Research Center.
(2) The governing authority shall, subject to any restrictions or directions established by the Legislature, plan, design, and construct the buildings.
(3) (a) Utah State University shall provide the land for the construction of science technology and research buildings on its campus.
(b) The University of Utah shall provide the land for the construction of science technology and research buildings on its campus.
(4) The governing authority shall hold title to the research buildings.
(5) The governing authority may:
(a) lease the buildings to Utah State University and the University of Utah;
(b) require research teams to generate a certain amount of revenue from grants or other sources to contribute to the project; and
(c) unless prohibited by law, deposit lease payments and other monies received from the universities and research teams with the state treasurer for deposit into the sinking funds created under Section 63B-1a-301 for debt service on the bonds issued to fund planning, design, and construction of the research buildings.
Section 1928. Section 63M-2-202, which is renumbered from Section 63-38g-202 is renumbered and amended to read:
[63-38g-202
]. 63M-2-202. Technology outreach program.(1) As funding becomes available from the Legislature or other sources, the Utah Science Technology and Research Governing Authority created in Part 3 shall establish a technology outreach program at up to five locations distributed strategically throughout Utah.
(2) (a) The governing authority shall ensure that the technology outreach program acts as a resource to:
(i) broker ideas, new technologies, and services to entrepreneurs and businesses throughout a defined service area;
(ii) engage local entrepreneurs and professors at applied technology centers, colleges, and universities by connecting them to Utah's research universities;
(iii) screen business ideas and new technologies to ensure that the ones with the highest growth potential receive the most targeted services and attention;
(iv) connect market ideas and technologies in new or existing businesses or industries or in regional colleges and universities with the expertise of Utah's research universities;
(v) assist businesses, applied technology centers, colleges, and universities in developing commercial applications for their research; and
(vi) disseminate and share discoveries and technologies emanating from Utah's research universities to local entrepreneurs, businesses, applied technology centers, colleges, and universities.
(b) In designing and operating the technology outreach program, the governing authority shall work cooperatively with the Technology Commercialization Offices at Utah State University and the University of Utah.
Section 1929. Section 63M-2-203, which is renumbered from Section 63-38g-203 is renumbered and amended to read:
[63-38g-203
]. 63M-2-203. Research teams.As funding becomes available from the Legislature or other sources, and subject to any restrictions or directions established by the Legislature, the governing authority shall allocate monies to Utah State University and the University of Utah to provide funding for research teams to conduct science and technology research.
Section 1930. Section 63M-2-204, which is renumbered from Section 63-38g-204 is renumbered and amended to read:
[63-38g-204
]. 63M-2-204. Financial participation agreement.(1) In consideration of the monies and services provided or agreed to be provided, the state of Utah, Utah State University, and the University of Utah covenant and agree that they will allocate commercialization revenues as follows:
(a) for the first $15,000,000 received:
(i) $10,000,000 to Utah State University and the University of Utah, with the monies distributed proportionately based upon which university conducted the research that generated the commercialization revenues; and
(ii) $5,000,000 to the Governor's Office of Economic Development for the Centers of Excellence program created by Chapter 38f, Part 7, Centers of Excellence Act; and
(b) for all subsequent monies received:
(i) 50% to Utah State University and the University of Utah, with the monies distributed proportionately based upon which university conducted the research that generated the commercialization revenues; and
(ii) 50% to the governing authority or other entity designated by the state to be used for:
(A) the Centers of Excellence program created by Chapter 38f, Part 7, Centers of Excellence Act;
(B) replacement of equipment in the research buildings;
(C) recruiting and paying additional research teams; and
(D) construction of additional research buildings.
(2) The Governor's Office of Economic Development shall:
(a) distribute that portion of the $5,000,000 allocated to the Centers of Excellence program by Subsection (1)(a)(ii) to Utah State University and the University of Utah based upon which institution performed the research that generated the commercialization revenues; and
(b) credit those amounts to the universities as matching funds under Subsection [63-38f-701] 63M-1-702(2).
Section 1931. Section 63M-2-301, which is renumbered from Section 63-38g-301 is renumbered and amended to read:
Part 3. Utah Science Technology and Research Governing Authority
[63-38g-301]. 63M-2-301. The Utah Science Technology and Research Governing Authority -- Creation -- Membership -- Meetings -- Staff.
(1) There is created the Utah Science Technology and Research Governing Authority consisting of the state treasurer and the following eight members appointed as follows with the consent of the Senate:
(a) three appointed by the governor;
(b) two appointed by the president of the Senate;
(c) two appointed by the speaker of the House of Representatives; and
(d) one appointed by the commissioner of higher education.
(2) (a) (i) The eight appointed members shall serve four-year staggered terms.
(ii) The appointed members may not serve more than two full consecutive terms.
(b) Notwithstanding Subsection (2)(a)(i), the terms of the first members of the governing authority shall be staggered by lot so that half of the initial members serve two-year terms and half serve four-year terms.
(3) Vacancies in the appointed positions on the governing authority shall be filled by the appointing authority with consent of the Senate for the unexpired term.
(4) (a) The governor shall select the chair of the governing authority to serve a one-year term.
(b) The president of the Senate and the speaker of the House of Representatives shall jointly select the vice chair of the governing authority to serve a one-year term.
(5) The governing authority shall meet at least monthly and may meet more frequently at the request of a majority of the members of the governing authority.
(6) Five members of the governing authority are a quorum.
(7) (a) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
(8) (a) (i) The governing authority shall hire a full-time executive director to provide staff support for the governing authority.
(ii) The executive director is an at-will employee who may be terminated without cause by the governor or by majority vote of the governing authority.
(b) The Governor's Office of Economic Development shall provide office space and administrative support for the executive director.
Section 1932. Section 63M-2-302, which is renumbered from Section 63-38g-302 is renumbered and amended to read:
[63-38g-302
]. 63M-2-302. Governing authority powers.(1) The governing authority shall:
(a) ensure that funds appropriated and received for research and development at the research universities and for the technology outreach program are used appropriately, effectively, and efficiently in accordance with the intent of the Legislature;
(b) in cooperation with the universities' administrations, expand key research at the two research universities;
(c) enhance technology transfer and commercialization of research and technologies developed at the research universities to create high-quality jobs and new industries in the private sector in Utah;
(d) review state and local economic development plans and appropriations to ensure that the project and appropriations do not duplicate existing or planned programs;
(e) establish economic development objectives for the project;
(f) by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules for allocating monies appropriated to it for research teams and for the commercialization of new technology between Utah State University and the University of Utah;
(g) verify that the project is being enhanced by research grants and that it is meeting the governing authority's economic development objectives;
(h) monitor all research plans that are part of the project at the research universities to determine that appropriations are being spent in accordance with legislative intent and to maximize the benefit and return to the state;
(i) develop methods and incentives to encourage investment in and contributions to the project from the private sector; and
(j) annually report and make recommendations to:
(i) the governor;
(ii) the Executive Appropriations Committee; and
(iii) the Economic Development Appropriations Subcommittee.
(2) The governing authority may:
(a) in addition to monies received by it from the Legislature, receive contributions from any source in the form of money, property, labor, or other things of value for the project;
(b) subject to any restrictions imposed by the donation, appropriations, or bond authorizations, allocate monies received by it among the research universities, technology outreach program, and technology transfer offices to support commercialization and technology transfer to the private sector; or
(c) enter into agreements necessary to obtain private equity investment in the project.
Section 1933. Section 63M-2-303, which is renumbered from Section 63-38g-303 is renumbered and amended to read:
[63-38g-303
]. 63M-2-303. Utah Science Technology and Research Governing Authority Advisory Council -- Chair -- Meetings.(1) There is created the Utah Science Technology and Research Governing Authority Advisory Council consisting of 12 members appointed as follows:
(a) one member appointed by the director of the Governor's Office of Economic Development;
(b) one member appointed by the Utah Information Technology Association;
(c) one member appointed by the Utah Nanotechnology Initiative;
(d) one member appointed by the Economic Development Corporation of Utah;
(e) one member appointed by the Utah Life Science Association;
(f) one member appointed by the Salt Lake Area Chamber of Commerce;
(g) one member appointed by the Provo-Orem Chamber of Commerce;
(h) one member appointed by the Davis Area Chamber of Commerce;
(i) one member appointed by the Ogden-Weber Chamber of Commerce;
(j) one member appointed by the Cache Chamber of Commerce;
(k) one member appointed by the St. George Area Chamber of Commerce; and
(l) one member appointed by the Vernal Chamber of Commerce.
(2) The governing authority shall consult with the advisory council about the project.
(3) The advisory council shall select a chair from among its members to serve a two-year term.
(4) The advisory council shall convene whenever the governing authority requests a meeting for consultation.
(5) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
Section 1934. Section 63M-3-101 is enacted to read:
CHAPTER 3. TAR SANDS PILOT PLANT ACT
Part 1. General Provisions
63M-3-101. Title.
This chapter is known as the "Tar Sands Pilot Plant Act."
Section 1935. Section 63M-3-102, which is renumbered from Section 63-45a-1 is renumbered and amended to read:
[63-45a-1
]. 63M-3-102. Legislative findings -- Purpose of act.(1) The Legislature finds that:
(a) Substantial deposits of tar sands exist within lands located in various places within the state of Utah, but this is primarily a Utah phenomenon, there being no similar significant deposits within lands located elsewhere in the United States.
(b) While large known deposits of tar sands exist outside the United States, primarily in South America and Canada, only those in Canada produce commercial quantities of hydrocarbons, this having come about only after years of research and experimentation and substantial private and public investment.
(c) Significant laboratory research has been conducted, including research by the University of Utah, which demonstrates a potential for commercial production of the tar sands deposits located in the state of Utah, which potential remains to be established by the scale-up of laboratory research to a pilot plant development stage.
(d) Successful demonstration of a hydrocarbon recovery process from Utah tar sands as commercially viable at the pilot plant level of production could form the basis for the development by private industry of commercial production of a substantial volume of hydrocarbon energy fuel, thereby commensurately reducing the amount of petroleum products which are required to be imported at exorbitant cost from foreign sources to meet the needs of the citizens of this state and the United States.
(2) The purpose of this act is to stimulate and encourage the development and commercial production by private industry of hydrocarbons from the tar sands deposits lying within the state of Utah for the public good and economic well-being of the citizens of this state and the United States, and to so do by providing for the design, construction, and operation of a pilot plant to be employed for the purpose of demonstrating the commercial viability of processes for the recovery of hydrocarbons from the tar sands deposits of the state through certain funding by the state in conjunction with funding furnished from other sources, both public and private.
Section 1936. Section 63M-3-103, which is renumbered from Section 63-45a-2 is renumbered and amended to read:
[63-45a-2
]. 63M-3-103. Definitions.As used in this act:
(1) "Contractor" means the parties from private industry who design, construct, or operate the pilot plant.
(2) "Council" means the state advisory council on science and technology.
(3) "Intellectual property" means the sum of knowledge contained in patents, know-how, copyrights, trade secrets, and technical information relating to the pilot plant and the research which has preceded it.
(4) "Objective period" means that period of time required for the pilot plant to achieve its design objectives.
(5) "Pilot plant" means the tar sands pilot plant which is the subject of this act.
(6) "Station" means the Utah engineering experiment station, University of Utah.
Section 1937. Section 63M-3-201, which is renumbered from Section 63-45a-3 is renumbered and amended to read:
Part 2. Contracts and Intellectual Property
[63-45a-3]. 63M-3-201. Contract for pilot plant -- Contents -- Financing -- Termination of contract.
(1) The council is authorized to enter into contracts with contractors to provide for the design, construction, and operation of a pilot plant to fulfill the purposes of this act.
(2) The contracts provided for in Subsection (1) shall provide, among other things, for the following:
(a) The plans and specifications for and the processes to be used in the pilot plant must be approved by the council.
(b) The station is to be the project engineer in respect to the pilot plant and is to represent the council in respect to it. As the project engineer the station has the responsibility of monitoring performance by the contractors, gathering data pertinent to the purpose for which the pilot plant is to be constructed and operated, and performing such administrative, accounting, and other duties assigned to it in respect to the pilot plant by the council. As compensation for its services the station is to receive its costs, direct and indirect, calculated in accordance with standard accounting procedures followed by the University of Utah in contracts with the United States government and its agencies; and the amount to be so paid to the station is to be considered part of the costs of design, construction, and operation of the pilot plant.
(c) The contractor shall provide all funds necessary to the design, construction, and operation of the pilot plant for the objective period which are not provided by the appropriation made to the council for purposes of this act under Section 5. To provide its portion of these funds the contractor may use both private and public sources, but that from public sources can only be used with prior approval by the council.
(d) The site for the pilot plant is subject to prior approval by the council.
(e) The pilot plant and any production from it shall be owned by the state of Utah in the proportion that its appropriation for purposes of this act under Section 5 bears to the total cost of designing, constructing, and operating the pilot plant for the objective period. This total cost does not include the cost or value of the site for the pilot plant or tar sand feedstock for the objective period.
(f) The council shall have the exclusive right to determine when the end of the objective period has been reached, at which time any contracts between the council and the contractor regarding the pilot plant shall terminate. The pilot plant is then to be sold for cash pursuant to law at competitive bidding when the sale of the pilot plant equipment is determined to be practicable by the council. The gross proceeds from the sale shall be paid to the state but not in excess of the amount of the appropriation made under Section 5 plus an interest factor of 10% per year from the date of the contracts to the sale date.
Section 1938. Section 63M-3-202, which is renumbered from Section 63-45a-4 is renumbered and amended to read:
[63-45a-4
]. 63M-3-202. Intellectual properties discovered or developed -- Ownership -- Patenting -- Licensing.(1) To the extent not inconsistent with the patent laws of the United States, the intellectual properties which are newly discovered or newly developed in the course of the design, construction, and operation of the pilot plant during the objective period:
(a) shall be owned by the state of Utah to the same extent as the pilot plant and production from it as provided for in Subsection [63-45a-3] 63M-3-201(2)(e); and
(b) shall, if patentable, be patented in a manner appropriate to this ownership by the state and the other owners.
(2) Any intellectual properties described in Subsection (1) insofar as they are so owned by the state may be licensed for the objective period upon such terms as are approved by the council.
Section 1939. Section 63M-4-101, which is renumbered from Section 63-53b-101 is renumbered and amended to read:
CHAPTER 4. UTAH ENERGY ACT
Part 1. General Provisions
[63-53b-101]. 63M-4-101. Title.
This chapter is known as the "Utah Energy Act."
Section 1940. Section 63M-4-102, which is renumbered from Section 63-53b-102 is renumbered and amended to read:
[63-53b-102
]. 63M-4-102. Definitions.As used in this chapter, "state agency" means an executive branch:
(1) department;
(2) agency;
(3) board;
(4) commission;
(5) division; or
(6) state educational institution.
Section 1941. Section 63M-4-201, which is renumbered from Section 63-53b-201 is renumbered and amended to read:
Part 2. Governor's Energy Advisor
[63-53b-201]. 63M-4-201. Governor's energy advisor -- Duties.
(1) (a) The governor shall appoint an energy advisor.
(b) The governor's energy advisor serves at the pleasure of the governor.
(2) The governor's energy advisor shall:
(a) advise the governor on energy-related matters;
(b) annually review and propose updates to the state's energy policy, as contained in Section [63-53b-301] 63M-4-301;
(c) promote as the governor's energy advisor considers necessary:
(i) the development of cost-effective energy resources both renewable and nonrenewable; and
(ii) educational programs, including programs supporting conservation and energy efficiency measures;
(d) coordinate across state agencies to assure consistency with state energy policy, including:
(i) working with the State Energy Program to promote access to federal assistance for energy-related projects for state agencies and members of the public;
(ii) working with the Division of Homeland Security to assist the governor in carrying out the governor's energy emergency powers under [Title 63, Chapter 53a] Title 63K, Chapter 2, Energy Emergency Powers of Governor;
(iii) participating in the annual review of the energy emergency plan and the maintenance of the energy emergency plan and a current list of contact persons required by Section 53-2-110; and
(iv) identifying and proposing measures necessary to facilitate low-income consumers' access to energy services;
(e) coordinate with the Division of Homeland Security ongoing activities designed to test an energy emergency plan to ensure coordination and information sharing among state agencies and political subdivisions in the state, public utilities and other energy suppliers, and other relevant public sector persons as required by Sections 53-2-110, [63-53a-3] 63K-2-201, [63-53a-7] 63K-2-205, and [63-53a-8] 63K-2-301;
(f) coordinate with requisite state agencies to study:
(i) the creation of a centralized state repository for energy-related information;
(ii) methods for streamlining state review and approval processes for energy-related projects; and
(iii) the development of multistate energy transmission and transportation infrastructure;
(g) coordinate energy-related regulatory processes within the state;
(h) compile, and make available to the public, information about federal, state, and local approval requirements for energy-related projects;
(i) act as the state's advocate before federal and local authorities for energy-related infrastructure projects or coordinate with the appropriate state agency; and
(j) help promote the Division of Facilities Construction and Management's measures to improve energy efficiency in state buildings.
Section 1942. Section 63M-4-202, which is renumbered from Section 63-53b-202 is renumbered and amended to read:
[63-53b-202
]. 63M-4-202. Agency cooperation.A state agency shall provide the state energy officer with any energy-related information requested by the governor's energy advisor if the governor's energy advisor's request is consistent with other law.
Section 1943. Section 63M-4-203, which is renumbered from Section 63-53b-203 is renumbered and amended to read:
[63-53b-203
]. 63M-4-203. Reports.(1) The governor's energy advisor shall report annually to:
(a) the governor;
(b) the Natural Resources, Agriculture, and Environment Interim Committee; and
(c) the Public Utilities and Technology Interim Committee.
(2) The report required in Subsection (1) shall:
(a) summarize the status and development of the state's energy resources;
(b) address the governor's energy advisor's activities under this part; and
(c) recommend any energy-related executive or legislative action the governor's energy advisor considers beneficial to the state, including updates to the state energy policy under Section [63-53b-301] 63M-4-301.
Section 1944. Section 63M-4-301, which is renumbered from Section 63-53b-301 is renumbered and amended to read:
Part 3. State Energy Policy
[63-53b-301]. 63M-4-301. State energy policy.
(1) It is the policy of the state that:
(a) Utah have adequate, reliable, affordable, sustainable, and clean energy resources;
(b) Utah will promote the development of:
(i) nonrenewable energy resources, including natural gas, coal, oil, oil shale, and tar sands; and
(ii) renewable energy resources, including geothermal, solar, wind, biomass, biodiesel, hydroelectric, and ethanol;
(c) Utah will promote the study of nuclear power generation;
(d) Utah will promote the development of resources and infrastructure sufficient to meet the state's growing demand, while contributing to the regional and national energy supply, thus reducing dependence on international energy sources;
(e) Utah will allow market forces to drive prudent use of energy resources, although incentives and other methods may be used to ensure the state's optimal development and use of energy resources in the short- and long-term;
(f) Utah will pursue energy conservation, energy efficiency, and environmental quality;
(g) (i) state regulatory processes should be streamlined to balance economic costs with the level of review necessary to ensure protection of the state's various interests; and
(ii) where federal action is required, Utah will encourage expedited federal action and will collaborate with federal agencies to expedite review;
(h) Utah will maintain an environment that provides for stable consumer prices that are as low as possible while providing producers and suppliers a fair return on investment, recognizing that:
(i) economic prosperity is linked to the availability, reliability, and affordability of consumer energy supplies; and
(ii) investment will occur only when adequate financial returns can be realized; and
(i) Utah will promote training and education programs focused on developing a comprehensive understanding of energy, including programs addressing:
(i) energy conservation;
(ii) energy efficiency;
(iii) supply and demand; and
(iv) energy related workforce development.
(2) State agencies are encouraged to conduct agency activities consistent with Subsection (1).
(3) A person may not file suit to challenge a state agency's action that is inconsistent with Subsection (1).
Section 1945. Section 63M-4-302, which is renumbered from Section 63-53b-302 is renumbered and amended to read:
[63-53b-302
]. 63M-4-302. Legislative committee review.The Natural Resources, Agriculture, and Environment Interim Committee and the Public Utilities and Technology Interim Committee shall review the state energy policy annually and propose any changes to the Legislature.
Section 1946. Section 63M-5-101 is enacted to read:
CHAPTER 5. RESOURCE DEVELOPMENT ACT
Part 1. General Provisions
63M-5-101. Title.
This chapter is known as the "Resource Development Act."
Section 1947. Section 63M-5-102, which is renumbered from Section 63-51-1 is renumbered and amended to read:
[63-51-1
]. 63M-5-102. Policy -- Legislative recognition.(1) The Legislature declares that the policy of this state is:
(a) to encourage industrial development and the development and utilization of the natural resources in this state in order to promote the economic development of this state and to provide benefits to the citizens of this state and other states; and
(b) to encourage co-operation between the state and its agencies and political subdivisions with individuals, firms, and business organizations to provide for industrial development and the development and utilization of the natural resources of this state.
(2) The Legislature recognizes that:
(a) industrial development and the development and utilization of the natural resources in this state, particularly in rural areas, may have a significant financial impact on state agencies and units of local government unless adequate financing is made available to these state agencies and units of local government to enable them to provide necessary public works and improvements and public services prior to completion of natural resource and industrial facilities; and
(b) because of the time lag between the financial impact on affected units of government and the normal beginning of the receipt of additional tax revenues from this development normally begins, it may be necessary and in the public interest of this state and its political subdivisions to provide through utilization of ad valorem taxes funds for these necessary public works and improvements; and
(c) these necessary public works and improvements may in part be of benefit primarily to the industrial developer or the person developing or utilizing the natural resources in this state.
Section 1948. Section 63M-5-103, which is renumbered from Section 63-51-2 is renumbered and amended to read:
[63-51-2
]. 63M-5-103. Definitions.As used in this chapter:
(1) "Commencement of construction" means any clearing of land, excavation, or construction but does not include preliminary site review, including soil tests, topographical surveys, exploratory drilling, boring or mining, or other preliminary tests.
(2) "Developer" means any person engaged or to be engaged in industrial development or the development or utilization of natural resources in this state through a natural resource or industrial facility, including owners, contract purchases of owners, and persons who, as a lessee or under an agreement, are engaged or to be engaged in industrial development or the development or utilization of natural resources in this state through a natural resource or industrial facility.
(3) "Major developer" means any developer whose proposed new or additional natural resource facility or industrial facility is projected:
(a) To employ more than 500 people; or
(b) To cause the population of an affected unit of local government to increase by more than 5%, the increase to include the primary work force of the facility and their dependents and the work force and dependents attributable to commercial and public service employment created by the presence of the facility.
(4) "Natural resource facility" or "industrial facility" means any land, structure, building, plant, mine, road, installation, excavation, machinery, equipment, or device, or any addition to, reconstruction, replacement, or improvement of, land or an existing structure, building, plant, mine, road, installation, excavation, machinery, or device reasonably used, erected, constructed, acquired, or installed by any person, if a substantial purpose of or result of the use, erection, construction, acquisition, rental, lease, or installation is related to industrial development or the development or utilization of the natural resources in this state.
(5) "Person" includes any individual, firm, co-partnership, joint venture, corporation, estate, trust, business trust, syndicate, or any group or combination acting as a unit.
(6) "Unit of local government" means any county, municipality, school district, local district, special service district, or any other political subdivision of the state.
Section 1949. Section 63M-5-201, which is renumbered from Section 63-51-3 is renumbered and amended to read:
Part 2. Prepayments
[63-51-3]. 63M-5-201. Prepayment of ad valorem property taxes on natural resources or industrial facility.
The developer also may prepay, with the consent of the governing bodies of the units of local government affected, to the county treasurer, or to other persons authorized by the governing body of a unit of local government under Section [63-51-10] 63M-5-306, a portion of the ad valorem property taxes which the developer anticipates will be imposed by the unit of local government under Title 59, Chapter 2, Part 9, in connection with the natural resources or industrial facility. Ad valorem property taxes prepaid under this chapter may not act as an abatement of the ad valorem property tax but rather shall be construed as a prepayment for which, notwithstanding Section 59-2-1321 or any statute of limitations to the contrary, a credit will be given the developer making the prepayment at the time the ad valorem property taxes become due and otherwise payable.
Section 1950. Section 63M-5-202, which is renumbered from Section 63-51-4 is renumbered and amended to read:
[63-51-4
]. 63M-5-202. Prepaid Sales and Use Tax Construction Account -- Use of account funds.There is created a Prepaid Sales and Use Tax Construction Account as a special suspense account within the state General Fund. All revenues collected or received by the State Tax Commission from the prepayment of sales or use taxes under this chapter shall be deposited with the state treasurer daily and credited by the state treasurer to the Prepaid Sales and Use Tax Construction Account. This account shall be used to finance state-related public improvements, including but not limited to highways and related facilities and schools and related facilities. Funds from this account shall only be disbursed or drawn upon after proper authorization and only after appropriation of these funds by the Legislature.
Section 1951. Section 63M-5-301, which is renumbered from Section 63-51-5 is renumbered and amended to read:
Part 3. Use of Funds
[63-51-5]. 63M-5-301. State Board of Education and Department of Transportation to prepare budget and submit to governor.
The State Board of Education and the Department of Transportation shall prepare and submit to the governor, to be included in his budget to the Legislature, a budget of the requirements for carrying out the provisions of this chapter.
Section 1952. Section 63M-5-302, which is renumbered from Section 63-51-6 is renumbered and amended to read:
[63-51-6
]. 63M-5-302. Appropriations for use of funds -- Board of Education and Department of Transportation -- Repayment by Board of Education -- Board of Education and Transportation Commission requirements.(1) The funds needed for construction of schools and highways and any of their related facilities as a result of industrial development or as a result of development or utilization of natural resources in this state through natural resource or industrial facilities shall be made available from the Prepaid Sales and Use Tax Construction Account through appropriations by the Legislature.
(2) Appropriations will be made to the State Board of Education and the Department of Transportation for specific public facilities related to a specific natural resource or industrial facility.
(3) (a) Appropriations made to the State Board of Education for schools and related facilities shall be repaid to the General Fund through property tax assessments by the school district within whose boundary the natural resource or industrial facility is located.
(b) The repayment shall be made within a period of six years from the date of substantial completion of the natural resource or industrial facility or from the date the school district has a taxable value exceeding $50,000,000, whichever occurs first.
(c) A refund shall be made to the developer of the natural resource or industrial facility to the extent of sales and use taxes prepaid by the developer in accordance with this chapter and appropriated by the Legislature for the specific public school facility, which have not been credited against sales and use taxes imposed by Title 59, Chapter 12, Sales and Use Tax Act.
(4) The State Board of Education shall:
(a) determine school facility needs as respective communities develop by consulting with the school district within whose boundary the development project is located; and
(b) recommend to the Legislature the amount to be appropriated at each session of the Legislature.
(5) The Transportation Commission shall:
(a) determine highway needs in the area of the natural resource or industrial facility;
(b) determine whether the highway should be a part of the state highway system; and
(c) recommend to the Legislature the amounts to be appropriated to the Department of Transportation for use on the highways.
(6) (a) The State Board of Education and the Department of Transportation shall assess and determine in connection with each public facility the portion of each facility of benefit primarily to the industrial developer or the person developing or utilizing the natural resources.
(b) The assessment shall be reported to the Legislature to be used in determining the amount to be appropriated subject to this chapter.
Section 1953. Section 63M-5-303, which is renumbered from Section 63-51-7 is renumbered and amended to read:
[63-51-7
]. 63M-5-303. Public facility -- Prepayment of sales and use tax in installments.Notwithstanding anything to the contrary contained in this chapter, prepaid sales or use taxes sufficient to construct a particular public facility need not be prepaid in one sum but may be prepaid in installments as may be required by the state or any of its agencies or political subdivisions in fulfilling contractual commitments for the construction of the public facility if the state receives assurance that the funds for the agreed project will be prepaid to the State Tax Commission at the time or times for which the state or any of its agencies or political subdivisions have made contractual commitments for the disbursement of these funds for the public facility. In no event shall the total accumulated prepayment be less than the amount of sales and use taxes due for the calendar quarters for which returns are required to be filed under Section 59-12-107.
Section 1954. Section 63M-5-304, which is renumbered from Section 63-51-8 is renumbered and amended to read:
[63-51-8
]. 63M-5-304. Department of Transportation and county executives -- Cooperation in development or utilization -- Written agreements authorized -- Survey and location work.(1) The Department of Transportation and county executives shall cooperate with persons engaged in industrial development or the development of or utilization of natural resources in this state through a natural resource or industrial facility who desire to assist this state or its counties in obtaining financing through prepaid sales or use taxes for improvements to existing state or county roads or the construction of new state or county roads which are necessary to provide access to areas of natural resource or industrial facilities.
(2) Where it is determined that the improvements or construction referred to cannot be financed with existing public funds or when the necessary improvement or construction would be unduly delayed by postponing the improvements or construction until funds are otherwise available and the Legislature has appropriated the necessary funds pursuant to Section [63-51-6] 63M-5-302, the Department of Transportation or any county executive may enter into written agreements with the person engaged or to be engaged in industrial development or the development or utilization of natural resources through a natural resource or industrial facility providing for the necessary improvements or construction if that person agrees to the prepayment of sales or use taxes as provided in this chapter to the extent necessary to provide the funds needed to finance the necessary improvements or construction.
(3) The agreements shall include the assurances necessary to provide the state or the county adequate funds for the payment of all obligations incurred by the state or county for the necessary improvements or construction and for the transfer of funds and all necessary adjustments, if the funds prepaid exceed the actual expenditures made for the improvements or construction.
(4) If the actual expenditures made by the state, its agencies, or political subdivisions for the improvements or construction exceed the amount of prepaid sales and use taxes actually imposed by Title 59, Chapter 12, Sales and Use Tax Act, then no refund shall be allowed for the excess amount prepaid as sales or use taxes.
(5) Initial survey and location work by the Department of Transportation or a county may proceed prior to the execution of any agreements if otherwise authorized and funded.
Section 1955. Section 63M-5-305, which is renumbered from Section 63-51-9 is renumbered and amended to read:
[63-51-9
]. 63M-5-305. Tax Commission -- Rules and regulations.For the purpose of more efficiently administering this act the State Tax Commission is authorized in its discretion to formulate, amend, or cancel rules and regulations establishing procedures regarding matters pertaining to the prepayment of sales or use taxes as provided in this act and the credit against sales or use taxes as the same become due and otherwise payable.
Section 1956. Section 63M-5-306, which is renumbered from Section 63-51-10 is renumbered and amended to read:
[63-51-10
]. 63M-5-306. Financial impact statement -- Alleviation plan -- Filing required -- Contents -- Payments credited against tax -- Provisions neither exclusive nor mandatory.(1) (a) A developer desiring to prepay ad valorem property taxes under Section [63-51-3] 63M-5-201 shall first prepare and file with the Governor's Office of Economic Development and all units of local government likely to be affected with a significant financial impact due to a natural resource or industrial facility a financial impact statement together with a plan for alleviating these impacts.
(b) The impact statement and the alleviation plan shall be prepared in cooperation with and after consultation with the Governor's Office of Economic Development and the affected units of local government.
(c) The financial impact statement shall assess the projected financial impact on state agencies and units of local government, including the impact on transportation systems, culinary water systems, waste treatment facilities, public safety, schools, public health, housing, planning and zoning, and general government administration.
(d) The alleviation plan shall set out proposals for alleviating the impact and may include payments to local units of government or direct expenditures by the developer to alleviate the impact.
(e) The impact statement and the alleviation plan may be amended by the developer in cooperation with and after consultation with the Governor's Office of Economic Development and those units of local government affected by the amendment.
(2) At least 90 days prior to commencement of construction of an industrial facility or natural resources facility by a major developer, an impact statement and alleviation plan as described in Subsection (1) shall be filed by the major developer whether or not the major developer desires to prepay ad valorem property taxes.
(3) (a) Upon the filing of the financial impact statement and alleviation plan, a developer may apply to the governing body of the affected unit of local government for authorization to prepay a portion of the anticipated ad valorem property taxes to be expended consistent with the alleviation plan.
(b) This authorization may provide that only a portion of the amounts so prepaid can be applied against the ad valorem property taxes due in any given year.
(c) In addition to payments directly to the affected unit of local government, an affected unit of local government may authorize a tax credit on anticipated ad valorem property taxes for expenditures made by the developer to other persons so long as the expenditure is consistent with the alleviation plan.
(4) (a) This chapter is designed to provide an additional mechanism for the alleviation of impacts on units of local government and is not intended to discourage the use of other mechanisms as may be available.
(b) Nothing in this chapter requires a developer to prepay ad valorem property taxes or to make any other expenditure not otherwise required by law.
Section 1957. Section 63M-6-101 is enacted to read:
CHAPTER 6. MILITARY BASE EASEMENTS ACT
Part 1. General Provisions
63M-6-101. Title.
This chapter is known as the "Military Base Easements Act."
Section 1958. Section 63M-6-201, which is renumbered from Section 63-49a-1 is renumbered and amended to read:
Part 2. Easements and Improvements
[63-49a-1]. 63M-6-201. Acquisition of easements -- Restrictions -- Resale.
(1) (a) The Governor's Office of Economic Development shall acquire, by purchase or condemnation, easements for the establishment, maintenance, and operation of a restrictive use area for the operation of aircraft to and from Hill Air Force Base because:
(i) Hill Air Force Base is a military installation of vital importance to security of the United States of America and to the economic well-being of the citizens of Utah;
(ii) there are certain portions of land around the entire base that are being developed for residential and other uses that are incompatible with current and future operations of the base because of noise, health, safety, and accident reasons; and
(iii) it is the purpose of this chapter for the state to acquire those easements restricting the use of those lands and the air space above them in order to assure the continued operation of Hill Air Force Base as an active military base and to protect the health, safety, and economic well-being of the citizens of Utah.
(b) The Governor's Office of Economic Development may delegate its power to purchase or condemn easements under this subsection to other state agencies if the department ensures that those agencies comply with the procedures and requirements of this chapter.
(2) (a) The Governor's Office of Economic Development shall ensure that the easements restrict the land from those uses identified in the Hill Air Force Base AICUZ Land Use Compatibility Guidelines Study, as amended, dated October, 1982, as not being acceptable.
(b) The Governor's Office of Economic Development may allow certain other uses not prohibited by those guidelines if those uses are consistent with the purpose of this chapter.
(c) Nothing in this chapter may be construed to authorize the Governor's Office of Economic Development or any other state agency to:
(i) acquire any ownership interest in real property other than an easement restricting the land from future uses inconsistent with the Hill Air Force Base AICUZ Land Use Compatibility Guidelines Study, as amended, dated October 1982;
(ii) purchase businesses; or
(iii) require people to relocate or move from their property.
(d) To calculate the purchase price for the easements, the Governor's Office of Economic Development shall subtract the market value of the real property and its improvements after the acquisition of the easements from the market value of the real property and its improvements before the acquisition of the easements.
(e) When the Hill Air Force Base runways have not been used for seven years to accommodate the arrival and departure of airplanes, the Governor's Office of Economic Development shall:
(i) notify by certified mail each current owner of the property to which each easement is attached;
(ii) inform that owner that the owner may purchase the easement from the state for the same price that the state paid for it originally or for the market value of the easement at the time of the buyback, whichever is smaller; and
(iii) sell the easement to the owner of the property to which the easement is attached if the owner tenders the purchase price.
(f) In addition to purchasing the easements required by this chapter, the Governor's Office of Economic Development may provide reasonable relocation expenses to all churches, businesses, and schools that, as of March 1, 1994, were located either within the north Hill Air Force Base accident potential zone (APZ) identified in Subsection [63-49a-2] 63M-6-202(1)(a) or within the south Hill Air Force Base accident potential zone (APZ) identified in Subsection [63-49a-2] 63M-6-202(1)(b) if those churches, businesses, and schools can reasonably demonstrate that expansion of the use would have been permitted before acquisition of the easements but is now prohibited because of the easement.
(3) (a) The Governor's Office of Economic Development may take action to enforce the provisions of this chapter.
(b) The attorney general shall represent the Governor's Office of Economic Development in that action.
Section 1959. Section 63M-6-202, which is renumbered from Section 63-49a-2 is renumbered and amended to read:
[63-49a-2
]. 63M-6-202. Location of easements.(1) The Governor's Office of Economic Development or its designees may acquire easements on the land within the following boundaries:
(a) beginning on the north Hill Air Force Base accident potential zone (APZ) at a point which is North 1,089,743.170 meters and East 459,346.946 meters based on the North zone, State of Utah, NAD 83 coordinates and runs north to North 63 degrees 10 minutes 44 seconds, East 457.109 meters, North 26 degrees 49 minutes 16 seconds, West 3,352.129 meters, South 63 degrees 10 minutes 44 seconds, West 914.217 meters, South 26 degrees 49 minutes 16 seconds, East 3,352.129 meters, North 63 degrees 10 minutes 44 seconds, East 457.109 meters back to the point of beginning; and
(b) beginning on the south Hill Air Force Base APZ which is North 1,086,065.786 meters and East 461,206.222 meters based on the North zone, State of Utah, NAD 83 coordinates and runs South 63 degrees 10 minutes 44 seconds, West 457.109 meters, South 26 degrees 49 minutes 16 seconds, East 502.179 meters, South 0 degrees 20 minutes 35 seconds, West 1,722.227 meters, South 89 degrees 39 minutes 25 seconds, East 883.743 meters, North 63 degrees 10 minutes 44 seconds, East 914.217 meters, North 26 degrees 49 minutes 16 seconds, West 2,437.912 meters, South 63 degrees 10 minutes 44 seconds, West 457.109 meters back to the point of beginning.
(2) The Governor's Office of Economic Development or its designees may acquire easements on the following land that is located inside the 75 and 80 level day-night (LDN) noise contour as identified in the Hill Air Force Base AICUZ Land Use Compatibility Guidelines Study, as amended, dated October, 1982:
(a) in the west half of Section 3, T4NR1W;
(b) in the east half of Section 4, T4NR1W;
(c) in the northeast quarter of Section 8, T4NR1W;
(d) within all of Section 9, T4NR1W;
(e) in the northwest quarter of Section 10, T4NR1W;
(f) within the southwest quarter of Section 19, T5NR1W;
(g) in the south half of Section 20, T5NR1W;
(h) within the southwest quarter of Section 28, T5NR1W; and
(i) within Section 29, T5NR1W.
Section 1960. Section 63M-6-203, which is renumbered from Section 63-49a-3 is renumbered and amended to read:
[63-49a-3
]. 63M-6-203. Certain improvements, alterations, and expansions prohibited.(1) A person or entity may not begin to develop, or authorize development, on any land identified in this chapter until the Governor's Office of Economic Development has affirmatively authorized the development of the land because the development is consistent with those uses identified in the Hill Air Force Base AICUZ Land Use Compatibility Guidelines Study, as amended, dated October 1982.
(2) Nothing in this chapter prohibits any property owner from improving, altering, or expanding any existing residential or commercial use of his property so long as the improvement, alteration, or expansion does not materially increase the human density of that present use.
Section 1961. Section 63M-7-101 is enacted to read:
CHAPTER 7. CRIMINAL JUSTICE AND SUBSTANCE ABUSE
Part 1. General Provisions
63M-7-101. Title.
This chapter is known as "Criminal Justice and Substance Abuse."
Section 1962. Section 63M-7-201, which is renumbered from Section 63-25a-101 is renumbered and amended to read:
Part 2. Commission on Criminal and Juvenile Justice
[63-25a-101]. 63M-7-201. Creation -- Purpose.
(1) The State Commission on Criminal and Juvenile Justice is created within the governor's office.
(2) The commission's purpose is to:
(a) promote broad philosophical agreement concerning the objectives of the criminal and juvenile justice system in Utah;
(b) provide a mechanism for coordinating the functions of the various branches and levels of government concerned with criminal and juvenile justice to achieve those objectives;
(c) coordinate statewide efforts to reduce crime and victimization in Utah; and
(d) accomplish the duties enumerated in Section [63-25a-104] 63M-7-204.
Section 1963. Section 63M-7-202, which is renumbered from Section 63-25a-102 is renumbered and amended to read:
[63-25a-102
]. 63M-7-202. Composition -- Appointments -- Ex officio members -- Terms -- U.S. Attorney as nonvoting member.(1) The commission on criminal and juvenile justice shall be composed of 21 voting members as follows:
(a) the chief justice of the supreme court, as the presiding officer of the judicial council, or a judge designated by the chief justice;
(b) the state court administrator;
(c) the executive director of the Department of Corrections;
(d) the director of the Division of Juvenile Justice Services;
(e) the commissioner of the Department of Public Safety;
(f) the attorney general;
(g) the president of the chiefs of police association or a chief of police designated by the association's president;
(h) the president of the sheriffs' association or a sheriff designated by the association's president;
(i) the chair of the Board of Pardons and Parole or a member designated by the chair;
(j) the chair of the Utah Sentencing Commission;
(k) the chair of the Utah Substance Abuse and Anti-Violence Coordinating Council;
(l) the chair of the Utah Board of Juvenile Justice;
(m) the chair of the Utah Council on Victims of Crime or the chair's designee;
(n) the director of the Division of Substance Abuse and Mental Health; and
(o) the following members designated to serve four-year terms:
(i) a juvenile court judge, appointed by the chief justice, as presiding officer of the Judicial Council;
(ii) a representative of the statewide association of public attorneys designated by the association's officers;
(iii) one member of the House of Representatives who is appointed by the speaker of the House of Representatives; and
(iv) one member of the Senate who is appointed by the president of the Senate.
(2) The governor shall appoint the remaining three members to four-year staggered terms as follows:
(a) one criminal defense attorney appointed from a list of three nominees submitted by the Utah State Bar Association;
(b) one representative of public education; and
(c) one citizen representative.
(3) In addition to the members designated under Subsections (1) and (2), the United States Attorney for the district of Utah may serve as a nonvoting member.
(4) In appointing the members under Subsection (2), the governor shall take into account the geographical makeup of the commission.
Section 1964. Section 63M-7-203, which is renumbered from Section 63-25a-103 is renumbered and amended to read:
[63-25a-103
]. 63M-7-203. Executive director -- Qualifications -- Compensation -- Appointment -- Functions.(1) The governor, with the consent of the Senate, shall appoint a person experienced in the field of criminal justice and in administration as the executive director of the Commission on Criminal and Juvenile Justice. The governor shall establish the executive director's salary within the salary range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
(2) (a) The executive director, under the direction of the commission, shall administer the duties of the commission and act as the governor's advisor on national, state, regional, metropolitan, and local government planning as it relates to criminal justice.
(b) This chapter does not derogate the planning authority conferred on state, regional, metropolitan, and local governments by existing law.
Section 1965. Section 63M-7-204, which is renumbered from Section 63-25a-104 is renumbered and amended to read:
[63-25a-104
]. 63M-7-204. Duties of commission.The State Commission on Criminal and Juvenile Justice administration shall:
(1) promote the commission's purposes as enumerated in Section [63-25a-101] 63M-7-201;
(2) promote the communication and coordination of all criminal and juvenile justice agencies;
(3) study, evaluate, and report on the status of crime in the state and on the effectiveness of criminal justice policies, procedures, and programs that are directed toward the reduction of crime in the state;
(4) study, evaluate, and report on policies, procedures, and programs of other jurisdictions which have effectively reduced crime;
(5) identify and promote the implementation of specific policies and programs the commission determines will significantly reduce crime in Utah;
(6) provide analysis and recommendations on all criminal and juvenile justice legislation, state budget, and facility requests, including program and fiscal impact on all components of the criminal and juvenile justice system;
(7) provide analysis, accountability, recommendations, and supervision for state and federal criminal justice grant monies;
(8) provide public information on the criminal and juvenile justice system and give technical assistance to agencies or local units of government on methods to promote public awareness;
(9) promote research and program evaluation as an integral part of the criminal and juvenile justice system;
(10) provide a comprehensive criminal justice plan annually;
(11) review agency forecasts regarding future demands on the criminal and juvenile justice systems, including specific projections for secure bed space;
(12) promote the development of criminal and juvenile justice information systems that are consistent with common standards for data storage and are capable of appropriately sharing information with other criminal justice information systems by:
(a) developing and maintaining common data standards for use by all state criminal justice agencies;
(b) annually performing audits of criminal history record information maintained by state criminal justice agencies to assess their accuracy, completeness, and adherence to standards;
(c) defining and developing state and local programs and projects associated with the improvement of information management for law enforcement and the administration of justice; and
(d) establishing general policies concerning criminal and juvenile justice information systems and making rules as necessary to carry out the duties under this Subsection (12) and Subsection (10);
(13) allocate and administer grants, from monies made available, for approved education programs to help prevent the sexual exploitation of children; and
(14) allocate and administer grants funded from monies from the Law Enforcement Operations Account created in Section [63-63a-10] 51-9-411 for law enforcement operations and programs related to reducing illegal drug activity and related criminal activity.
Section 1966. Section 63M-7-205, which is renumbered from Section 63-25a-104.5 is renumbered and amended to read:
[63-25a-104.5
]. 63M-7-205. Annual report by the commission.(1) The commission shall annually prepare and publish a report directed to the governor, the Legislature, and the Judicial Council.
(2) The report shall describe how the commission fulfilled its statutory purposes and duties during the year.
Section 1967. Section 63M-7-206, which is renumbered from Section 63-25a-105 is renumbered and amended to read:
[63-25a-105
]. 63M-7-206. Election of chair -- Meetings.The membership of the Commission on Criminal and Juvenile Justice by simple majority vote of those in attendance shall annually elect one of their number to serve as chair. The chair is responsible for the call and conduct of meetings. Meetings shall be called and held at least bimonthly. One of the bimonthly meetings shall be held while the Legislature is convened in its annual session. Additional meetings may be called upon request by a majority of the commission's members.
Section 1968. Section 63M-7-207, which is renumbered from Section 63-25a-106 is renumbered and amended to read:
[63-25a-106
]. 63M-7-207. Members serve without pay -- Reimbursement for expenses.(1) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(2) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
Section 1969. Section 63M-7-301, which is renumbered from Section 63-25a-201 is renumbered and amended to read:
Part 3. Utah Substance Abuse and Anti-Violence Coordinating Council
[63-25a-201]. 63M-7-301. Creation of council -- Membership -- Terms.
(1) There is created within the governor's office the Utah Substance Abuse and Anti-Violence Coordinating Council.
(2) The Utah Substance Abuse and Anti-Violence Coordinating Council comprises 25 voting members as follows:
(a) the attorney general or the attorney general's designee;
(b) a county commissioner designated by the Utah Association of Counties;
(c) the commissioner of public safety or the commissioner's designee;
(d) the director of the Division of Substance Abuse and Mental Health or the director's designee;
(e) the state superintendent of public instruction or the superintendent's designee;
(f) the director of the Department of Health or the director's designee;
(g) the executive director of the Commission on Criminal and Juvenile Justice or the executive director's designee;
(h) the governor or the governor's designee;
(i) the executive director of the Department of Corrections or the executive director's designee;
(j) the director of the Division of Juvenile Justice Services or the director's designee;
(k) the chair of the Domestic Violence Advisory Council or the chair's designee;
(l) the following members designated to serve four-year terms:
(i) a member of the House of Representatives designated by the speaker;
(ii) a member of the Senate designated by the president;
(iii) a member of the judiciary designated by the chief justice of the Utah Supreme Court;
(iv) a representative designated by the Utah League of Cities and Towns; and
(v) a representative from the offices of minority affairs designated by the directors of those offices or a designee;
(m) the following members appointed by the governor to serve four-year terms:
(i) a representative of the Utah National Guard, appointed by the governor;
(ii) one resident of the state who has been personally affected by domestic violence;
(iii) one resident of the state who has been personally affected by gang violence;
(iv) one resident of the state who has been personally affected by alcohol or other drug abuse; and
(v) one citizen representative; and
(n) the following members appointed by the members in Subsections (2)(a) through (2)(m) to serve four-year terms:
(i) a person knowledgeable in criminal justice issues;
(ii) a person knowledgeable in substance abuse treatment issues;
(iii) a person knowledgeable in substance abuse prevention issues; and
(iv) a person knowledgeable in judiciary issues.
Section 1970. Section 63M-7-302, which is renumbered from Section 63-25a-202 is renumbered and amended to read:
[63-25a-202
]. 63M-7-302. Chair -- Vacancies -- Quorum -- Expenses.(1) The Utah Substance Abuse and Anti-Violence Coordinating Council shall annually select one of its members to serve as chair.
(2) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term in the same manner as the position was originally filled.
(3) A majority of the members of the council constitutes a quorum.
(4) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) Legislators on the council shall receive compensation and expenses as provided by law and legislative rule.
(d) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(5) The council may establish subcommittees as needed to assist in accomplishing its duties under Section [63-25a-203] 63M-7-303.
Section 1971. Section 63M-7-303, which is renumbered from Section 63-25a-203 is renumbered and amended to read:
[63-25a-203
]. 63M-7-303. Duties of council.(1) The Utah Substance Abuse and Anti-Violence Coordinating Council shall:
(a) provide leadership and generate unity for Utah's ongoing efforts to combat substance abuse and community violence;
(b) recommend and coordinate the creation, dissemination, and implementation of a statewide substance abuse and anti-violence policy;
(c) facilitate planning for a balanced continuum of substance abuse and community violence prevention, treatment, and justice services;
(d) promote collaboration and mutually beneficial public and private partnerships;
(e) coordinate recommendations made by any subcommittees created under Section [63-25a-202] 63M-7-302;
(f) analyze and provide an objective assessment of all proposed legislation concerning alcohol and other drug issues and community violence issues; and
(g) coordinate the implementation of Section 77-18-1.1 and related provisions in Subsections 77-18-1(5)(d) and (e) and 77-27-9(2)(g), as provided in Section [63-25a-205.5] 63M-7-305.
(2) The council shall meet quarterly or more frequently as determined necessary by the chair.
(3) The council shall report its recommendations annually to the commission, governor, the Legislature, and the Judicial Council.
Section 1972. Section 63M-7-304, which is renumbered from Section 63-25a-205 is renumbered and amended to read:
[63-25a-205
]. 63M-7-304. Chair -- Vacancies -- Quorum -- Expenses.(1) The members of any subcommittees established by the council shall each annually select one of their members as chairs.
(2) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term in the same manner as the position was originally filled.
(3) A majority of the members of a subcommittee constitutes a quorum for the transaction of business by the subcommittee.
(4) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) Legislators on the subcommittee shall receive compensation and expenses as provided by law and legislative rule.
(d) Members from higher education may not receive per diem or expenses for their service.
(e) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
Section 1973. Section 63M-7-305, which is renumbered from Section 63-25a-205.5 is renumbered and amended to read:
[63-25a-205.5
]. 63M-7-305. Drug Offender Reform Act -- Coordination.(1) As used in this section:
(a) "Council" means the Utah Substance Abuse and Anti-Violence Coordinating Council.
(b) "Drug Offender Reform Act" and "act" mean the screening, assessment, and substance abuse treatment provided to:
(i) convicted offenders under Subsection 77-18-1.1(2) with funds appropriated by the Legislature under Subsection 77-18-1.1(4); and
(ii) offenders released on parole under Subsection 77-27-9(2)(g)(iv).
(c) "Substance abuse authority" has the same meaning as in Section 17-43-201.
(2) The council shall provide ongoing oversight of the implementation and functions of the Drug Offender Reform Act.
(3) The council shall evaluate the impact and results of the Drug Offender Reform Act.
(4) The council shall develop an implementation plan for the Drug Offender Reform Act. The plan shall:
(a) include guidelines on how funds appropriated under the act should be used;
(b) require that treatment plans under the act are appropriate for criminal offenders;
(c) include guidelines on the membership of local planning groups; and
(d) include guidelines on the membership of the Department of Corrections' planning group under Subsection (6).
(5) (a) Each local substance abuse authority shall establish a local planning group and shall submit a plan to the council detailing how the authority proposes to use the Drug Offender Reform Act funds. The uses shall be in accordance with the guidelines established by the council under Subsection (4).
(b) Upon approval of the plan by the council, the Department of Human Services shall allocate the funds.
(c) Local substance abuse authorities shall annually submit to the Department of Human Services and to the council reports detailing use of the funds and the impact and results of the use of the funds.
(6) (a) The Department of Corrections shall establish a planning group and shall submit a plan to the council detailing how the department proposes to use the Drug Offender Reform Act funds. The uses shall be in accordance with the guidelines established by the council under Subsection (4).
(b) The Department of Corrections shall annually submit to the council a report detailing use of the funds and the impact and results of the use of the funds.
Section 1974. Section 63M-7-306, which is renumbered from Section 63-25a-207 is renumbered and amended to read:
[63-25a-207
]. 63M-7-306. Staffing.The Commission on Criminal and Juvenile Justice shall provide staff to the council and any subcommittees established by the council.
Section 1975. Section 63M-7-401, which is renumbered from Section 63-25a-301 is renumbered and amended to read:
Part 4. Sentencing Commission
[63-25a-301]. 63M-7-401. Creation -- Members -- Appointment -- Qualifications.
(1) There is created a state commission to be known as the Sentencing Commission composed of 27 members. The commission shall develop by-laws and rules in compliance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and elect its officers.
(2) The commission's members shall be:
(a) two members of the House of Representatives, appointed by the speaker of the House and not of the same political party;
(b) two members of the Senate, appointed by the president of the Senate and not of the same political party;
(c) the executive director of the Department of Corrections or a designee appointed by the executive director;
(d) the director of the Division of Juvenile Justice Services or a designee appointed by the director;
(e) the executive director of the Commission on Criminal and Juvenile Justice or a designee appointed by the executive director;
(f) the chair of the Board of Pardons and Parole or a designee appointed by the chair;
(g) the chair of the Youth Parole Authority or a designee appointed by the chair;
(h) two trial judges and an appellate judge appointed by the chair of the Judicial Council;
(i) two juvenile court judges designated by the chair of the Judicial Council;
(j) an attorney in private practice who is a member of the Utah State Bar, experienced in criminal defense, and appointed by the Utah Bar Commission;
(k) an attorney who is a member of the Utah State Bar, experienced in the defense of minors in juvenile court, and appointed by the Utah Bar Commission;
(l) the director of Salt Lake Legal Defenders or a designee appointed by the director;
(m) the attorney general or a designee appointed by the attorney general;
(n) a criminal prosecutor appointed by the Statewide Association of Public Attorneys;
(o) a juvenile court prosecutor appointed by the Statewide Association of Public Attorneys;
(p) a representative of the Utah Sheriff's Association appointed by the governor;
(q) a chief of police appointed by the governor;
(r) a licensed professional appointed by the governor who assists in the rehabilitation of adult offenders;
(s) a licensed professional appointed by the governor who assists in the rehabilitation of juvenile offenders;
(t) two members from the public appointed by the governor who exhibit sensitivity to the concerns of victims of crime and the ethnic composition of the population; and
(u) one member from the public at large appointed by the governor.
Section 1976. Section 63M-7-402, which is renumbered from Section 63-25a-302 is renumbered and amended to read:
[63-25a-302
]. 63M-7-402. Terms of members -- Vacancies -- Reappointment.(1) (a) Except as required by Subsection (b), as terms of current commission members expire, the appointing authority shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (a), the appointing authority shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of commission members are staggered so that approximately half of the commission is appointed every two years.
(2) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(3) All members of the commission, including those appointed before July 1, 1995, shall be eligible for reappointment one time.
Section 1977. Section 63M-7-403, which is renumbered from Section 63-25a-303 is renumbered and amended to read:
[63-25a-303
]. 63M-7-403. Vacancies.If a commission member no longer holds a qualifying position, resigns, or is unable to serve, the vacancy shall be filled by the appointing authority.
Section 1978. Section 63M-7-404, which is renumbered from Section 63-25a-304 is renumbered and amended to read:
[63-25a-304
]. 63M-7-404. Purpose -- Duties.The purpose of the commission shall be to develop guidelines and propose recommendations to the Legislature, the governor, and the Judicial Council about the sentencing and release of juvenile and adult offenders in order to:
(1) respond to public comment;
(2) relate sentencing practices and correctional resources;
(3) increase equity in criminal sentencing;
(4) better define responsibility in criminal sentencing; and
(5) enhance the discretion of sentencing judges while preserving the role of the Board of Pardons and Parole and the Youth Parole Authority.
Section 1979. Section 63M-7-405, which is renumbered from Section 63-25a-305 is renumbered and amended to read:
[63-25a-305
]. 63M-7-405. Compensation of members -- Reports to the Legislature, the courts, and the governor.(1) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(2) The commission shall submit to the Legislature, the courts, and to the governor at least 60 days prior to the annual general session of the Legislature its reports and recommendations for sentencing guidelines and amendments. It is intended that the commission utilize existing data and resources from state criminal justice agencies. The commission is authorized to employ professional assistance and other staff members as it considers necessary or desirable.
(3) The commission shall be responsive to all three branches of government, but be part of the Commission on Criminal and Juvenile Justice for coordination on criminal and juvenile justice issues, budget, and administrative support.
Section 1980. Section 63M-7-406, which is renumbered from Section 63-25a-306 is renumbered and amended to read:
[63-25a-306
]. 63M-7-406. Publication of reports.The commission shall also be authorized to prepare, publish, and distribute from time to time reports of its studies, recommendations, and statements.
Section 1981. Section 63M-7-501, which is renumbered from Section 63-25a-401 is renumbered and amended to read:
Part 5. Crime Victims' Reparations Act
[63-25a-401]. 63M-7-501. Title.
This part is known as the "Crime Victims' Reparations Act" and may be abbreviated as the "CVRA."
Section 1982. Section 63M-7-502, which is renumbered from Section 63-25a-402 is renumbered and amended to read:
[63-25a-402
]. 63M-7-502. Definitions.As used in this chapter:
(1) "Accomplice" means a person who has engaged in criminal conduct as defined in Section 76-2-202.
(2) "Board" means the Crime Victims' Reparations Board created under Section [63-25a-404] 63M-7-504.
(3) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
(4) "Claim" means:
(a) the victim's application or request for a reparations award; and
(b) the formal action taken by a victim to apply for reparations pursuant to Sections [63-25a-401] 63M-7-501 through [63-25a-428] 63M-7-525.
(5) "Claimant" means any of the following claiming reparations under this chapter:
(a) a victim;
(b) a dependent of a deceased victim;
(c) a representative other than a collateral source; or
(d) the person or representative who files a claim on behalf of a victim.
(6) "Child" means an unemancipated person who is under 18 years of age.
(7) "Collateral source" means the definition as provided in Section [63-25a-413] 63M-7-513.
(8) "Contested case" means a case which the claimant contests, claiming the award was either inadequate or denied, or which a county attorney, a district attorney, a law enforcement officer, or other individual related to the criminal investigation proffers reasonable evidence of the claimant's lack of cooperation in the prosecution of a case after an award has already been given.
(9) (a) "Criminally injurious conduct" other than acts of war declared or not declared means conduct that:
(i) is or would be subject to prosecution in this state under Section 76-1-201;
(ii) occurs or is attempted;
(iii) causes, or poses a substantial threat of causing, bodily injury or death;
(iv) is punishable by fine, imprisonment, or death if the person engaging in the conduct possessed the capacity to commit the conduct; and
(v) does not arise out of the ownership, maintenance, or use of a motor vehicle, aircraft, or water craft, unless the conduct is intended to cause bodily injury or death, or is conduct which is or would be punishable under Title 76, Chapter 5, Offenses Against the Person, or as any offense chargeable as driving under the influence of alcohol or drugs.
(b) "Criminally injurious conduct" includes an act of terrorism, as defined in 18 U.S.C. 2331 committed outside of the United States against a resident of this state. "Terrorism" does not include an "act of war" as defined in 18 U.S.C. 2331.
(10) "Dependent" means a natural person to whom the victim is wholly or partially legally responsible for care or support and includes a child of the victim born after his death.
(11) "Dependent's economic loss" means loss after the victim's death of contributions of things of economic value to his dependent, not including services the dependent would have received from the victim if he had not suffered the fatal injury, less expenses of the dependent avoided by reason of victim's death.
(12) "Dependent's replacement services loss" means loss reasonably and necessarily incurred by the dependent after the victim's death in obtaining services in lieu of those the decedent would have performed for his benefit if he had not suffered the fatal injury, less expenses of the dependent avoided by reason of the victim's death and not subtracted in calculating the dependent's economic loss.
(13) "Director" means the director of the Reparations Office.
(14) "Disposition" means the sentencing or determination of penalty or punishment to be imposed upon a person:
(a) convicted of a crime;
(b) found delinquent; or
(c) against whom a finding of sufficient facts for conviction or finding of delinquency is made.
(15) "Economic loss" means economic detriment consisting only of allowable expense, work loss, replacement services loss, and if injury causes death, dependent's economic loss and dependent's replacement service loss. Noneconomic detriment is not loss, but economic detriment is loss although caused by pain and suffering or physical impairment.
(16) "Elderly victim" means a person 60 years of age or older who is a victim.
(17) "Fraudulent claim" means a filed claim based on material misrepresentation of fact and intended to deceive the reparations staff for the purpose of obtaining reparation funds for which the claimant is not eligible as provided in Section [63-25a-410] 63M-7-510.
(18) "Fund" means the Crime Victim Reparation Fund created in Section [63-63a-4] 51-9-404.
(19) "Law enforcement officer" means a law enforcement officer as defined in Section 53-13-103.
(20) "Medical examination" means a physical examination necessary to document criminally injurious conduct but does not include mental health evaluations for the prosecution and investigation of a crime.
(21) "Mental health counseling" means outpatient and inpatient counseling necessitated as a result of criminally injurious conduct. The definition of mental health counseling is subject to rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(22) "Misconduct" as provided in Subsection [63-25a-412] 63M-7-512(1)(b) means conduct by the victim which was attributable to the injury or death of the victim as provided by rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(23) "Noneconomic detriment" means pain, suffering, inconvenience, physical impairment, and other nonpecuniary damage, except as provided in this chapter.
(24) "Pecuniary loss" does not include loss attributable to pain and suffering except as otherwise provided in this chapter.
(25) "Offender" means a person who has violated the criminal code through criminally injurious conduct regardless of whether he is arrested, prosecuted, or convicted.
(26) "Offense" means a violation of the criminal code.
(27) "Perpetrator" means the person who actually participated in the criminally injurious conduct.
(28) "Personal property" has the same definition as provided in Section 68-3-12.
(29) "Reparations Office" means the office of the reparations staff for the purpose of carrying out this chapter.
(30) "Reparations officer" means a person employed by the Reparations Office to investigate claims of victims and award reparations under this chapter, and includes the director when he is acting as a reparations officer.
(31) "Reparations staff" means the director, the reparations officers, and any other staff employed to administer the Crime Victims' Reparations Act.
(32) "Replacement service loss" means expenses reasonably and necessarily incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but the benefit of himself or his dependents if he had not been injured.
(33) "Representative" means the victim, immediate family member, legal guardian, attorney, conservator, executor, or an heir of a person but does not include service providers.
(34) "Restitution" means money or services an appropriate authority orders an offender to pay or render to a victim of the offender's conduct.
(35) "Secondary victim" means a person who is traumatically affected by the criminally injurious conduct subject to rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(36) "Service provider" means a person or agency who provides a service to crime victims for a monetary fee except attorneys as provided in Section [63-25a-424] 63M-7-524.
(37) (a) "Victim" means a person who suffers bodily or psychological injury or death as a direct result of criminally injurious conduct or of the production of pornography in violation of Sections 76-5a-1 through 76-5a-4 if the person is a minor.
(b) "Victim" does not include a person who participated in or observed the judicial proceedings against an offender unless otherwise provided by statute or rule.
(c) "Victim" includes a resident of this state who is injured or killed by an act of terrorism, as defined in 18 U.S.C. 2331, committed outside of the United States.
(38) "Work loss" means loss of income from work the injured victim would have performed if he had not been injured and expenses reasonably incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income from substitute work he was capable of performing but unreasonably failed to undertake.
Section 1983. Section 63M-7-503, which is renumbered from Section 63-25a-403 is renumbered and amended to read:
[63-25a-403
]. 63M-7-503. Restitution -- Reparations not to supplant restitution -- Assignment of claim for restitution judgment to Reparations Office.(1) A reparations award shall not supplant restitution as established under Title 77, Chapter 38a, Crime Victims Restitution Act, or as established by any other provisions.
(2) The court shall not consider a reparations award when determining the order of restitution nor when enforcing restitution.
(3) If, due to reparation payments to a victim, the Reparations Office is assigned under Section [63-25a-419] 63M-7-519 a claim for the victim's judgment for restitution or a portion of the restitution, the Reparations Office may file with the sentencing court a notice of the assignment. The notice of assignment shall be signed by the victim and a Reparations Officer and shall state the amount of the claim assigned.
(4) Upon conviction and sentencing of the defendant, the court shall enter a civil judgment for complete restitution as provided in Section 77-38a-401 and identify the Reparations Office as the assignee of the assigned portion of the judgment.
(5) If the notice of assignment is filed after sentencing, the court shall modify the civil judgment for restitution to identify the Reparations Office as the assignee of the assigned portion of the judgment.
Section 1984. Section 63M-7-504, which is renumbered from Section 63-25a-404 is renumbered and amended to read:
[63-25a-404
]. 63M-7-504. Crime Victims' Reparations Board -- Members.(1) (a) A Crime Victims' Reparations Board is created, consisting of seven members appointed by the governor with the consent of the Senate.
(b) The membership of the board shall consist of:
(i) a member of the bar of this state;
(ii) a victim of criminally injurious conduct;
(iii) a licensed physician;
(iv) a representative of law enforcement;
(v) a mental health care provider; and
(vi) two other private citizens.
(c) The governor may appoint a chair of the board who shall serve for a period of time prescribed by the governor, not to exceed the length of the chair's term. The board may elect a vice chair to serve in the absence of the chair.
(d) The board may hear appeals from administrative decisions as provided in rules adopted pursuant to Section [63-25a-415] 63M-7-515.
(2) (a) Except as required by Subsection (2)(b), as terms of current board members expire, the governor shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(c) A member may be reappointed to one successive term.
(3) (a) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(b) A member resigning from the board shall serve until his successor is appointed and qualified.
(4) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(5) The board shall meet at least once quarterly but may meet more frequently as necessary.
Section 1985. Section 63M-7-505, which is renumbered from Section 63-25a-405 is renumbered and amended to read:
[63-25a-405
]. 63M-7-505. Board and office within Commission on Criminal and Juvenile Justice.(1) The Crime Victims' Reparations Board and Reparations Office are placed within the Commission on Criminal and Juvenile Justice for the provision by the commission of administrative and support services to the Reparations Office.
(2) The board or the director may request assistance from the Commission on Criminal and Juvenile Justice, the Department of Public Safety, and other state agencies in conducting research or monitoring victims' programs.
(3) The fund shall appear as a separate line item in the Commission on Criminal and Juvenile Justice budget.
Section 1986. Section 63M-7-506, which is renumbered from Section 63-25a-406 is renumbered and amended to read:
[63-25a-406
]. 63M-7-506. Functions of board.(1) The Crime Victim Reparations Board shall:
(a) adopt a description of the organization and prescribe the general operation of the board;
(b) prescribe policy for the Office of Crime Victim Reparations;
(c) adopt rules to implement and administer Sections [63-25a-401] 63M-7-501 through [63-25a-428] 63M-7-525 pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which may include setting of ceilings on reparations, defining of terms not specifically stated in this chapter, and establishing of rules governing attorney fees;
(d) prescribe forms for applications for reparations;
(e) review all awards made by the reparations staff, although the board may not reverse or modify awards authorized by the reparations staff;
(f) render an annual report to the governor and the Legislature regarding the staff's and the board's activities;
(g) cooperate with the director and his staff in formulating standards for the uniform application of Section [63-25a-409] 63M-7-509, taking into consideration the rates and amounts of reparation payable for injuries and death under other laws of this state and the United States;
(h) allocate monies available in the Crime Victim Reparations Fund to victims of criminally injurious conduct for reparations claims; and
(i) allocate monies available to other victim services as provided by administrative rule once a sufficient reserve has been established for reparation claims.
(2) All rules, or other statements of policy, along with application forms specified by the board, are binding upon the director, the reparations officers, and other staff.
Section 1987. Section 63M-7-507, which is renumbered from Section 63-25a-407 is renumbered and amended to read:
[63-25a-407
]. 63M-7-507. Director -- Appointment and functions.The executive director of the Commission on Criminal and Juvenile Justice, after consulting with the board, shall appoint a director to carry out the provisions of this chapter. The director shall be an experienced administrator with a background in at least one of the following fields: social work, psychology, criminal justice, law, or a related field. The director shall demonstrate an understanding of the needs of crime victims and of services to victims. The director shall devote his time and capacity to his duties. The director shall:
(1) hire staff, including reparations officers, as necessary;
(2) act when necessary as a reparations officer in deciding initial claims;
(3) possess the same investigation and decision-making authority as the reparations officers;
(4) hear appeals from the decisions of the reparations officers, unless he acted as a reparations officer on the initial claim;
(5) serve as a liaison between the reparations staff and the Reparations Office;
(6) serve as the public relations representative of the Reparations Office;
(7) provide for payment of all administrative salaries, fees, and expenses incurred by the staff of the board, to be paid out of appropriations from the fund;
(8) cooperate with the state treasurer and the state Division of Finance in causing the funds in the trust fund to be invested and its investments sold or exchanged and the proceeds and income collected;
(9) apply for, receive, allocate, disburse, and account for grants of funds made available by the United States, the state, foundations, corporations, and other businesses, agencies, or individuals;
(10) obtain and utilize the services of other governmental agencies upon request; and
(11) act in any other capacity or perform any other acts necessary for the Reparations Office or board to successfully fulfill its statutory objectives.
Section 1988. Section 63M-7-508, which is renumbered from Section 63-25a-408 is renumbered and amended to read:
[63-25a-408
]. 63M-7-508. Reparations officers.The reparations officers shall in addition to any assignments made by the director of the Reparations Office:
(1) hear and determine all matters relating to claims for reparations and reinvestigate or reopen claims without regard to statutes of limitation or periods of prescription;
(2) obtain from prosecuting attorneys, law enforcement officers, and other criminal justice agencies, investigations and data to enable the reparations officer to determine whether and to what extent a claimant qualifies for reparations;
(3) hold hearings, administer oaths or affirmations, examine any person under oath or affirmation, issue subpoenas requiring the attendance and giving of testimony of witnesses, require the production of any books, papers, documents, or other evidence which may contribute to the reparations officer's ability to determine particular reparation awards;
(4) determine who is a victim or dependent;
(5) award reparations or other benefits determined to be due under this chapter and the rules of the board;
(6) take notice of judicially recognized facts and general, technical, and scientific facts within their specialized knowledge;
(7) advise and assist the board in developing policies recognizing the rights, needs, and interests of crime victims;
(8) render periodic reports as requested by the board concerning:
(a) the officers' activities; and
(b) the manner in which the rights, needs, and interests of crime victims are being addressed by the state's criminal justice system;
(9) establish priorities for assisting elderly victims of crime or those victims facing extraordinary hardships;
(10) cooperate with the Commission on Criminal and Juvenile Justice to develop information regarding crime victims' problems and programs; and
(11) assist the director in publicizing the provisions of the Crime Victims' Reparations Act, including the procedures for obtaining reparation, and in encouraging law enforcement agencies, health providers, and other related officials to take reasonable care to ensure that victims are informed about the provisions of this chapter and the procedure for applying for reparation.
Section 1989. Section 63M-7-509, which is renumbered from Section 63-25a-409 is renumbered and amended to read:
[63-25a-409
]. 63M-7-509. Grounds for eligibility.In order to be eligible for a reparations award under this chapter:
(1) The claimant shall be:
(a) a victim of criminally injurious conduct;
(b) a dependent of a deceased victim of criminally injurious conduct; or
(c) a representative acting on behalf of one of the above.
(2) The victim shall be either a resident of Utah or the criminally injurious conduct shall have occurred in Utah.
(3) The application shall be made in writing in a form that conforms substantially to that prescribed by the board.
(4) The criminally injurious conduct shall be reported to a law enforcement officer, in his capacity as a law enforcement officer, or other federal or state investigative agencies.
(5) (a) The claimant or victim shall cooperate with the appropriate law enforcement agencies in their efforts to apprehend or convict the perpetrator of the alleged offense.
(b) An award to a victim may be made whether any person is arrested, prosecuted, or convicted of the criminally injurious conduct giving rise to the claim.
(6) The criminally injurious conduct shall have occurred after December 31, 1986.
Section 1990. Section 63M-7-510, which is renumbered from Section 63-25a-410 is renumbered and amended to read:
[63-25a-410
]. 63M-7-510. Ineligible persons -- Fraudulent claims -- Penalties.(1) The following individuals shall not be eligible to receive an award of reparations:
(a) persons who do not meet all of the provisions set forth in Section [63-25a-409] 63M-7-509;
(b) the offender;
(c) an accomplice of the offender;
(d) any person whose receipt of an award would unjustly benefit the offender, accomplice, or other person reasonably suspected of participating in the offense;
(e) the victim of a motor vehicle injury who was the owner or operator of the motor vehicle and was not at the time of the injury in compliance with the state motor vehicle insurance laws;
(f) any convicted offender serving a sentence of imprisonment for that conviction or residing in any other institution which provides for the maintenance of convicted persons; and
(g) residents of halfway houses or any other correctional facilities and all persons who are on probation or parole if the circumstances surrounding the offense of which they are victims constitute a violation of their parole or probation.
(2) A person who knowingly submits a fraudulent claim for reparations or who knowingly misrepresents material facts in making a claim, and who receives an award based on that claim, is guilty of an offense, based on the following award amounts:
(a) for value under $300, a class B misdemeanor;
(b) for value equal to or greater than $300, but less than $1,000, a class A misdemeanor;
(c) for value equal to or greater than $1,000, but less than $5,000, a third degree felony; and
(d) for value equal to or greater than $5,000, a second degree felony.
(3) A person who submits a claim described in Subsection (2) but receives no award based on that claim is guilty of a class B misdemeanor.
(4) The state attorney general may prosecute violations under this section or may make arrangements with county attorneys for the prosecution of violations under this section when the attorney general cannot conveniently prosecute.
(5) The state may also bring a civil action against a claimant who receives reparation payments that are later found to be unjustified and who does not return to the board the unjustified amount.
Section 1991. Section 63M-7-511, which is renumbered from Section 63-25a-411 is renumbered and amended to read:
[63-25a-411
]. 63M-7-511. Compensable losses and amounts.A reparations award under this chapter may be made if:
(1) the reparations officer finds the claim satisfies the requirements for the award under the provisions of this chapter and the rules of the board;
(2) monies are available in the fund;
(3) the person for whom the award of reparations is to be paid is otherwise eligible under this act;
(4) the claim is for an allowable expense incurred by the victim, as follows:
(a) reasonable and necessary charges incurred for products, services, and accommodations;
(b) inpatient and outpatient medical treatment and physical therapy, subject to rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(c) mental health counseling which:
(i) is set forth in a mental health treatment plan which has been approved prior to any payment by a reparations officer; and
(ii) qualifies within any further rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) actual loss of past earnings and anticipated loss of future earnings because of a death or disability resulting from the personal injury at a rate not to exceed 66-2/3% of the person's weekly gross salary or wages or the maximum amount allowed under the state workers' compensation statute;
(e) care of minor children enabling a victim or spouse of a victim, but not both of them, to continue gainful employment at a rate per child per week as determined under rules established by the board;
(f) funeral and burial expenses for death caused by the criminally injurious conduct, subject to rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(g) loss of support to the dependent or dependents not otherwise compensated for a pecuniary loss for personal injury, for as long as the dependence would have existed had the victim survived, at a rate not to exceed 66-2/3% of the person's weekly salary or wages or the maximum amount allowed under the state workers' compensation statute, whichever is less;
(h) personal property necessary and essential to the health or safety of the victim as defined by rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(i) medical examinations as defined in Section [63-25a-402] 63M-7-502, subject to rules promulgated by the board pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which may allow for exemptions from Sections [63-25a-409] 63M-7-509, [63-25a-412] 63M-7-512, and [63-25a-413] 63M-7-513.
(5) If a Utah resident suffers injury or death as a result of criminally injurious conduct inflicted in a state, territory, or country that does not provide a reciprocal crime victims' compensation program, the Utah resident has the same rights under this chapter as if the injurious conduct occurred in this state.
(6) An award of reparations shall not exceed $25,000 in the aggregate unless the victim is entitled to proceeds in excess of that amount as provided in Subsection 77-38a-403(2). However, reparations for actual medical expenses incurred as a result of homicide, attempted homicide, aggravated assault, or DUI offenses, may be awarded up to $50,000 in the aggregate.
Section 1992. Section 63M-7-512, which is renumbered from Section 63-25a-412 is renumbered and amended to read:
[63-25a-412
]. 63M-7-512. Reparations reduction.(1) Reparations otherwise payable to a claimant may be reduced or denied as follows:
(a) the economic loss upon which the claim is based has been or could be recouped from other persons, including collateral sources, and the victim was not entitled to nor receiving monies prior to the criminally injurious conduct giving rise to the claim under this chapter;
(b) the reparations officer considers the claim unreasonable because of the misconduct of the claimant or of a victim through whom he claims; or
(c) the victim had not used a facility or health care provider that would be covered by a collateral source.
(2) When two or more dependents are entitled to an award as a result of a victim's death, the award shall be apportioned by the reparations officer among the dependents.
Section 1993. Section 63M-7-513, which is renumbered from Section 63-25a-413 is renumbered and amended to read:
[63-25a-413
]. 63M-7-513. Collateral sources.(1) Collateral source shall include any source of benefits or advantages for economic loss otherwise reparable under this chapter which the victim or claimant has received, or which is readily available to the victim from:
(a) the offender;
(b) the insurance of the offender;
(c) the United States government or any of its agencies, a state or any of its political subdivisions, or an instrumentality of two or more states, except in the case on nonobligatory state-funded programs;
(d) social security, Medicare, and Medicaid;
(e) state-required temporary nonoccupational income replacement insurance or disability income insurance;
(f) workers' compensation;
(g) wage continuation programs of any employer;
(h) proceeds of a contract of insurance payable to the victim for the loss he sustained because of the criminally injurious conduct;
(i) a contract providing prepaid hospital and other health care services or benefits for disability; or
(j) veteran's benefits, including veteran's hospitalization benefits.
(2) (a) An order of restitution shall not be considered readily available as a collateral source.
(b) Receipt of an award of reparations under this chapter shall be considered an assignment of the victim's rights to restitution from the offender.
(3) The victim shall not discharge a claim against a person or entity without the state's written permission and shall fully cooperate with the state in pursuing its right of reimbursement, including providing the state with any evidence in his possession.
(4) The state's right of reimbursement applies regardless of whether the victim has been fully compensated for his losses.
(5) Notwithstanding the collateral source provisions in Subsection (1) and Subsection [63-25a-412] 63M-7-512(1)(a), a victim of a sexual offense who requests testing of himself may be reimbursed for the costs of the HIV test only as provided in Subsection 76-5-503(4).
Section 1994. Section 63M-7-514, which is renumbered from Section 63-25a-414 is renumbered and amended to read:
[63-25a-414
]. 63M-7-514. Notification of claimant -- Suspension of proceedings.(1) The Reparations Office shall immediately notify the claimant in writing of any decision and shall forward to the Division of Finance a certified copy of the decision and a warrant request for the amount of the claim. The Division of Finance shall pay the claimant the amount submitted to the division, out of the fund. If monies in the fund are temporarily depleted, claimants entitled to receive awards shall be placed on a waiting list and shall receive their awards as funds are available in the order in which their claims were awarded.
(2) The reparations officer may suspend the proceedings pending disposition of a criminal prosecution that has been commenced or is imminent.
Section 1995. Section 63M-7-515, which is renumbered from Section 63-25a-415 is renumbered and amended to read:
[63-25a-415
]. 63M-7-515. Rules for contested claims -- Exemption from Administrative Procedures Act.(1) Rules for procedures for contested determinations by a reparations officer shall be adopted pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) Crime Victims' Reparations is exempt from [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 1996. Section 63M-7-516, which is renumbered from Section 63-25a-416 is renumbered and amended to read:
[63-25a-416
]. 63M-7-516. Waiver of privilege.(1) A victim filing a claim under the provisions of this chapter shall be considered to have waived any privilege as to communications or records relevant to an issue of the physical, mental, or emotional conditions of the victim except for the attorney-client privilege. The waiver shall apply only to reparations officers, the director of reparations, the board, and legal counsel.
(2) The claimant may be required to supply any additional medical or psychological reports available relating to the injury or death for which compensation is claimed.
(3) The reparations officer hearing a claim or an appeal from a claim shall make available to the claimant a copy of the report. If the victim is deceased, the director or his appointee, on request, shall furnish the claimant a copy of the report unless dissemination of that copy is prohibited by law.
Section 1997. Section 63M-7-517, which is renumbered from Section 63-25a-417 is renumbered and amended to read:
[63-25a-417
]. 63M-7-517. Additional testing.(1) If the mental, physical, or emotional condition of a victim is material to a claim, the reparations officer, director, or chair of the board who hears the claim or the appeal may order the claimant to submit to a mental or physical examination by a physician or psychologist and may recommend to the court to order an autopsy of a deceased victim.
(2) Any order for additional examination shall be for good cause shown and shall provide notice to the person to be examined and his representative.
(3) All reports from additional examinations shall set out findings, including results of all tests made, diagnoses, prognoses, other conclusions, and reports of earlier examinations of the same conditions.
(4) A copy of the report shall be made available to the victim or the representative of the victim unless dissemination of that copy is prohibited by law.
Section 1998. Section 63M-7-518, which is renumbered from Section 63-25a-418 is renumbered and amended to read:
[63-25a-418
]. 63M-7-518. Failure to comply.If a person refuses to comply with an order under this chapter or asserts a privilege, except privileges arising from the attorney-client relationship, to withhold or suppress evidence relevant to a claim, the director or reparations officer may make any appropriate determination including denial of the claim.
Section 1999. Section 63M-7-519, which is renumbered from Section 63-25a-419 is renumbered and amended to read:
[63-25a-419
]. 63M-7-519. Assignment of recovery -- Reimbursement.(1) By accepting an award of reparations, the victim automatically assigns to the state, subject to the provisions of Subsection (2), all claims against any third party to the lesser of:
(a) the amount paid by the state; or
(b) the amount recovered from the third party.
(2) The board, with the concurrence of the director, may reduce the state's right of reimbursement if it is determined that the reduction will benefit the fund.
(3) The state reserves the right to make a claim for reimbursement on behalf of the victim and the victim shall not impair the state's claim or the state's right of reimbursement.
Section 2000. Section 63M-7-520, which is renumbered from Section 63-25a-420 is renumbered and amended to read:
[63-25a-420
]. 63M-7-520. Special verdict -- Allocation of damages.In an action in a court of this state arising out of criminally injurious conduct, the judge, on timely motion, shall direct the jury to return a special verdict, indicating separately the awards to noneconomic detriment, punitive damages, and economic loss.
Section 2001. Section 63M-7-521, which is renumbered from Section 63-25a-421 is renumbered and amended to read:
[63-25a-421
]. 63M-7-521. Award -- Payment methods -- Claims against the award.(1) The reparations officer may provide for the payment of an award in a lump sum or in installments. The part of an award equal to the amount of economic loss accrued to the date of the award shall be paid in a lump sum. An award of allowable expense that would accrue after an initial award is made may not be paid in a lump sum. Except as provided in Subsection (2), the part of an award that may not be paid in a lump sum shall be paid in installments.
(2) At the request of the claimant, the reparations officer may convert future economic loss installment payments, other than allowable expense, to a lump sum payment, discounted to present value, but only upon a finding by the officer that the award in a lump sum will promote the interests of the claimant.
(3) An award for future economic loss payable in installments may be made only for a period for which the reparations officer can reasonably determine future economic loss. The reparations officer may reconsider and modify an award for future economic loss payable in installments, upon his finding that a material and substantial change of circumstances has occurred.
(4) An award is not subject to execution, attachment, or garnishment, except that an award for allowable expense is not exempt from a claim of a creditor to the extent that he provided products, services, or accommodations, the costs of which are included in the award.
(5) An assignment or agreement to assign a right to reparations for loss accruing in the future is unenforceable, except:
(a) an assignment of a right to reparations for work loss to secure payment of alimony, maintenance, or child support;
(b) an assignment of a right to reparations for allowable expense to the extent that the benefits are for the cost of products, services, or accommodations necessitated by the injury or death on which the claim is based and are provided or to be provided by the assignee; or
(c) an assignment to repay a loan obtained to pay for the obligations or expenses described in Subsection (5) (a) or (b).
Section 2002. Section 63M-7-522, which is renumbered from Section 63-25a-422 is renumbered and amended to read:
[63-25a-422
]. 63M-7-522. Emergency award.If the reparations officer determines that the claimant will suffer financial hardship unless an emergency award is made, and it appears likely that a final award will be made, an amount may be paid to the claimant, to be deducted from the final award or repaid by and recoverable from the claimant to the extent that it exceeds the final award. The board may limit emergency awards to any amount it considers necessary.
Section 2003. Section 63M-7-523, which is renumbered from Section 63-25a-423 is renumbered and amended to read:
[63-25a-423
]. 63M-7-523. Review of award decision.The reparations officer shall review at least annually every award being paid in installments. An order on review of an award does not require refund of amounts previously paid unless the award was obtained by fraud or a material mistake of fact.
Section 2004. Section 63M-7-524, which is renumbered from Section 63-25a-424 is renumbered and amended to read:
[63-25a-424
]. 63M-7-524. Attorney fees.(1) The claims procedures shall be sufficiently simple that the assistance of an attorney is unnecessary, and no attorney fees shall be paid for the assistance of an attorney or any other representative in filing the claim or providing information to the reparations officer.
(2) Attorney fees may be granted in the following circumstances and shall be paid out of the reparations award not to exceed 15% of the amount of the reparations award:
(a) when an award has been denied and, after a hearing, the decision to deny is overturned; or
(b) when minor dependents of a deceased victim require assistance in establishing a trust or determining a guardian.
(3) An attorney or any other person providing assistance in a reparations claim, who contracts for or receives sums not allowed under this chapter, is guilty of a class B misdemeanor. This provision shall not extend to attorneys who assist the victim in filing a civil action against the perpetrator.
Section 2005. Section 63M-7-525, which is renumbered from Section 63-25a-428 is renumbered and amended to read:
[63-25a-428
]. 63M-7-525. Purpose -- Not entitlement program.(1) Crime Victims' Reparations is a program with the purpose to assist victims of criminally injurious conduct. Reparation to a victim is limited to the monies available in the fund.
(2) This program is not an entitlement program. Awards may be limited or denied as determined appropriate by the board. Failure to grant an award does not create a cause of action against Crime Victims' Reparations, the state, or any of its subdivisions. There is no right to judicial review over the decision whether or not to grant an award.
(3) A cause of action based on a failure to give or receive the notice required by this chapter does not accrue to any person against the state, any of its agencies or local subdivisions, any of their law enforcement officers or other agents or employees, or any health care or medical provider or its agents or employees. The failure does not affect or alter any requirement for filing or payment of a claim.
Section 2006. Section 63M-7-601, which is renumbered from Section 63-25a-601 is renumbered and amended to read:
Part 6. Utah Council on Victims of Crime
[63-25a-601]. 63M-7-601. Creation -- Members -- Chair.
(1) There is created within the governor's office the Utah Council on Victims of Crime.
(2) The Utah Council on Victims of Crime shall be composed of 24 voting members as follows:
(a) a representative of the Commission on Criminal and Juvenile Justice appointed by the executive director;
(b) a representative of the Department of Corrections appointed by the executive director;
(c) a representative of the Board of Pardons and Parole appointed by the chair;
(d) a representative of the Department of Public Safety appointed by the commissioner;
(e) a representative of the Division of Juvenile Justice Services appointed by the director;
(f) a representative of the Office of Crime Victim Reparations appointed by the director;
(g) a representative of the Office of the Attorney General appointed by the attorney general;
(h) a representative of the United States Attorney for the district of Utah appointed by the United States Attorney;
(i) a
professional or volunteer working in the area of violence against women and families appointed by the governor;
(j) the chair of each judicial district's victims' rights committee;
(k) the following members appointed to serve four-year terms:
(i) a representative of the Statewide Association of Public Attorneys appointed by that association;
(ii) a representative of the Utah Chiefs of Police Association appointed by the president of that association;
(iii) a representative of the Utah Sheriffs' Association appointed by the president of that association;
(iv) a representative of a Children's Justice Center appointed by the Advisory Board on Children's Justice; and
(v) a citizen representative appointed by the governor; and
(l) the following members appointed by the members in Subsections (2)(a) through (2)(k) to serve four-year terms:
(i) an individual who works professionally with victims of crime; and
(ii) a victim of crime.
(3) The council shall annually elect one member to serve as chair.
Section 2007. Section 63M-7-602, which is renumbered from Section 63-25a-602 is renumbered and amended to read:
[63-25a-602
]. 63M-7-602. Reappointment -- Vacancies.(1) Members appointed to serve four-year terms shall be eligible for reappointment one time.
(2) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
Section 2008. Section 63M-7-603, which is renumbered from Section 63-25a-603 is renumbered and amended to read:
[63-25a-603
]. 63M-7-603. Duties.(1) The council shall:
(a) make recommendations to the Legislature, the governor, and the Judicial Council on the following:
(i) enforcing existing rights of victims of crime;
(ii) enhancing rights of victims of crime;
(iii) the role of victims of crime in the criminal justice system;
(iv) victim restitution;
(v) educating and training criminal justice professionals on the rights of victims of crime; and
(vi) enhancing services to victims of crimes;
(b) provide training on the rights of victims of crime; and
(c) establish a subcommittee to consider complaints not resolved by the Victims' Rights Committee established in Section 77-37-5.
(2) The council shall advocate the adoption, repeal, or modification of laws or proposed legislation in the interest of victims of crime.
(3) The council may establish additional subcommittees to assist in accomplishing its duties.
Section 2009. Section 63M-7-604, which is renumbered from Section 63-25a-604 is renumbered and amended to read:
[63-25a-604
]. 63M-7-604. Compensation of members.(1) (a) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their services.
(2) (a) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) State government officer and employee members may decline to receive per diem and expenses for their service.
Section 2010. Section 63M-7-605, which is renumbered from Section 63-25a-605 is renumbered and amended to read:
[63-25a-605
]. 63M-7-605. Staffing.The Commission on Criminal and Juvenile Justice shall provide staff to the council and any subcommittees established by the council.
Section 2011. Section 63M-8-101 is enacted to read:
CHAPTER 8. UTAH COMMISSION FOR WOMAN AND FAMILIES ACT
Part 1. General Provisions
63M-8-101. Title.
This chapter is known as the "Utah Commission for Woman and Families Act."
Section 2012. Section 63M-8-201, which is renumbered from Section 63-47-1 is renumbered and amended to read:
Part 2. Commission Members
[63-47-1]. 63M-8-201. Creation -- Purpose.
(1) There is established the Utah Commission for Women and Families.
(2) The governor's office shall provide administrative support for the commission.
Section 2013. Section 63M-8-202, which is renumbered from Section 63-47-2 is renumbered and amended to read:
[63-47-2
]. 63M-8-202. Members -- Appointment -- Terms -- Vacancies -- Expenses.(1) (a) Except as required by Subsection (1)(b), the commission shall consist of up to 15 members to be appointed by the governor for a four-year term.
(b) Notwithstanding the requirements of Subsection (1)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of commission members are staggered so that approximately half of the commission is appointed every two years.
(c) Members may serve two consecutive appointments.
(d) In making appointments, the governor shall insure that no more than one more than half the membership is from the same political party.
(2) When a vacancy occurs in the membership for any reason, the replacement shall be appointed by the governor for the remainder of the unexpired term.
(3) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
Section 2014. Section 63M-8-203, which is renumbered from Section 63-47-3 is renumbered and amended to read:
[63-47-3
]. 63M-8-203. Qualifications of members.
(1) Members appointed to the commission shall have the following qualifications:
(a) a demonstrated record of leadership and involvement; and
(b) a willingness to make a commitment to the furtherance of the purposes of the commission.
(2) The commission may make recommendations to the governor concerning appointment of members.
Section 2015. Section 63M-8-204, which is renumbered from Section 63-47-4 is renumbered and amended to read:
[63-47-4
]. 63M-8-204. Election of chairman -- Meetings.Commission members shall elect a chairman, and may appoint such other officers from its membership as is deemed necessary. The commission shall meet in regular meetings and may meet at special meetings at the request of the chairman or the governor.
Section 2016. Section 63M-8-301, which is renumbered from Section 63-47-5 is renumbered and amended to read:
Part 3. Commission Duties and Activities
[63-47-5]. 63M-8-301. Duties.
The commission shall:
(1) confer with state agencies and advise the governor, through the governor's program director, concerning programs of importance to women and families;
(2) conduct studies, workshops, or fact-finding hearings to develop recommendations for constructive action in all areas of interest to women and families;
(3) conduct or participate in educational programs concerning issues of importance to women and families; and
(4) act as a liaison between the governor and national advisory organizations on the status of women or families.
Section 2017. Section 63M-8-302, which is renumbered from Section 63-47-7 is renumbered and amended to read:
[63-47-7
]. 63M-8-302. Authority to accept funds, gifts, and donations.The commission may, subject to [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, receive and accept federal funds, and receive and accept private gifts, donations, or funds from any source.
Section 2018. Section 63M-8-303, which is renumbered from Section 63-47-8 is renumbered and amended to read:
[63-47-8
]. 63M-8-303. Enactment of bylaws and rules.The commission may enact bylaws or other rules for its own governance.
Section 2019. Section 63M-9-101, which is renumbered from Section 63-75-1 is renumbered and amended to read:
CHAPTER 9. FAMILIES, AGENCIES, AND COMMUNITIES
TOGETHER FOR CHILDREN AND YOUTH AT RISK ACT
Part 1. General Provisions
[63-75-1]. 63M-9-101. Title.
This chapter is known as the "Families, Agencies, and Communities Together for Children and Youth At Risk Act."
Section 2020. Section 63M-9-102, which is renumbered from Section 63-75-2 is renumbered and amended to read:
[63-75-2
]. 63M-9-102. Purpose of chapter.(1) It is declared that the policy of the state is to unite the Department of Human Services, the State Office of Education, the Department of Health, the Office of the Court Administrator, and the Department of Workforce Services, community-based service organizations, and parents to develop and implement comprehensive systems of services and supports for children and youth at risk and their families.
(2) It is the intent of the Legislature that service delivery systems developed under this chapter shall require collaboration between existing state and local agencies and between public, private, and voluntary agencies to enhance their capacity to meet community needs.
Section 2021. Section 63M-9-103, which is renumbered from Section 63-75-3 is renumbered and amended to read:
[63-75-3
]. 63M-9-103. Definitions.As used in this chapter:
(1) "Children and youth at risk" means:
(a) disabled persons age 18 to 22; or
(b) persons in the custody of the Division of Juvenile Justice Services within the Department of Human Services age 18 to 21; and
(c) minors who may at times require appropriate and uniquely designed intervention to:
(i) achieve literacy;
(ii) advance through the schools;
(iii) achieve commensurate with their ability; and
(iv) participate in society in a meaningful way as competent, productive, caring, and responsible citizens.
(2) "Council" means the Families, Agencies, and Communities Together Council established under Section [63-75-4] 63M-9-201.
(3) "Local interagency council" means a council established under Section [63-75-5.7] 63M-9-301.
(4) "Steering committee" means the Families, Agencies, and Communities Together Steering Committee established under Section [63-75-5] 63M-9-202.
(5) (a) "Child and family centered service delivery system" means services provided to children and youth at risk and their families that may be delivered by teams and within a supportive community environment.
(b) "Community" includes, when available, parents of children and youth at risk; directors of geographical service delivery areas designated by state agencies; local government elected officials; appointed county officials who are responsible for providing substance abuse, mental health, or public health services; educators; school districts; parent-teacher organizations; child and family advocacy groups; religious and community-based service organizations; individuals; and private sector entities who come together to develop, adopt, and administer a plan for a collaborative service delivery system for children and youth at risk.
(c) "Community resources" means time, money, services, and other contributions provided by individuals, private sector entities, religious organizations, community-based service organizations, school districts, municipal governments, and county governments.
(d) "Individualized and coordinated service plan" means a plan for services and supports that is comprehensive in its scope, is the product of a collaborative process between public and private service providers, and is specifically tailored to the unique needs of each child or youth served under this chapter.
(e) "Performance monitoring system" means a process to regularly collect and analyze performance information including performance indicators and performance goals:
(i) "performance indicators" means actual performance information regarding a program or activity; and
(ii) "performance goals" means a target level of performance or an expected level of performance against which actual performance is measured.
(f) "Plan for a collaborative service delivery system," "plan," or "plans" means a written document describing how a community proposes to deliver services and supports to children and youth at risk that effectively bring to bear all needed resources, including community resources, to enable them to achieve the outcomes described in Subsection (1)(c).
Section 2022. Section 63M-9-104, which is renumbered from Section 63-75-8 is renumbered and amended to read:
[63-75-8
]. 63M-9-104. Relationship to political subdivisions.Nothing in this chapter affects the power of a political subdivision to carry out its responsibilities as otherwise provided by law.
Section 2023. Section 63M-9-201, which is renumbered from Section 63-75-4 is renumbered and amended to read:
Part 2. State Council and Steering Committee
[63-75-4]. 63M-9-201. Families, Agencies, and Communities Together State Council -- Composition -- Duties -- Interagency case management team.
(1) (a) There is created within state government the Families, Agencies, and Communities Together State Council composed of:
(i) the state superintendent of public instruction;
(ii) the executive director of the Department of Health;
(iii) the executive director of the Department of Human Services;
(iv) the state court administrator; and
(v) the executive director of the Department of Workforce Services.
(b) The council members listed in Subsection (1)(a) shall appoint to a four-year term the following nonvoting members:
(i) a representative of community-based service organizations appointed to a four-year term;
(ii) a parent representative from a rural community; and
(iii) a parent representative from an urban community.
(c) If a vacancy occurs with respect to a council member appointed under Subsection (1)(b), council members listed in Subsection (1)(a) shall appoint a replacement for the unexpired term.
(d) Appointments and reappointments under Subsection (1)(b) and (c) shall be made within 60 days of a vacancy.
(2) (a) The council shall annually elect a chair from its membership.
(b) All voting members of the council are necessary to constitute a quorum at any meeting.
(c) The action of a majority of a quorum is the action of the council, except that a unanimous vote of the council is required to appoint or remove a nonvoting council member.
(d) The council shall meet quarterly or more frequently as determined by the chair.
(3) (a) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the council at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members who are not government employees may not receive compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties from the council at rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(c) Council members may decline to receive per diem and expenses for their service.
(4) The council shall:
(a) provide leadership to increase and enhance efficient and effective services to Utah's children and youth at risk by:
(i) cooperatively planning, funding, monitoring, evaluating, and marketing innovative and individualized service delivery and funding strategies;
(ii) recommending legislative, executive, and judicial policy and procedural changes, including joint budget proposals as described in Section [63-38-2] 63J-1-201;
(iii) developing incentives and strategies to increase family involvement, collaboration, and public-private partnerships in the planning and delivery of services at the state and local level;
(iv) promoting prevention and early intervention services;
(v) increasing public understanding of and advocating for the needs of Utah's children and youth who are at risk; and
(vi) establishing policies to remove administrative barriers to collaboration in communities;
(b) compile and disseminate information regarding effective service delivery and funding strategies for replication;
(c) receive and act upon recommendations of the steering committee;
(d) approve the establishment of collaborative service delivery systems under Section [63-75-6.5] 63M-9-402 and adopt performance goals for those systems;
(e) recommend to the governor for each fiscal year funds contained in an agency’s base budget and building block request that can be identified for collaborative service delivery systems established under Section [63-75-6.5] 63M-9-402;
(f) (i) develop model administrative and governance structures to be established by communities that at least:
(A) ensure accountability for public funds;
(B) are voluntarily adopted and modified by communities, based on community needs;
(C) ensure collaboration on matters of policy and administrative processes in operating programs under this chapter between the state, school districts, and counties;
(D) establish a board consisting of heads of state and local government agencies, private agencies, and school districts that provide services under this chapter; and
(E) ensure equity in the scope, duration, and level of services throughout a prescribed geographical area;
(ii) the council may, through contracts that provide funding for programs under this chapter, give incentives to communities to establish an administrative and governance structure that meets the requirements of Subsection (4)(f)(i) and to designate the geographical area within which that administrative and governance structure will operate;
(g) review the structure and function of the steering committee before December 1, 1999, to determine the effectiveness of the steering committee in:
(i) achieving the purposes and carrying out the responsibilities of the committee; and
(ii) assisting communities to establish collaborative service delivery systems;
(h) forward to the Legislature for the 2000 General Session recommendations for restructuring the size, membership, and function of the steering committee based on the review conducted under Subsection (4)(g); and
(i) report to the governor and the Legislature on an annual basis.
(5) The council shall ensure that projects selected under Section [63-75-6] 63M-9-401 have outcomes that:
(a) focus all project activities on the prevention of academic failure and social misbehaviors;
(b) involve parents in planning, implementation, and evaluation of services;
(c) allow frequent opportunities for planning between teachers, parents, school administrators, and representatives of agencies and community-based service organizations that provide services; and
(d) provide frequent monitoring and assessment of each child's and youth's progress.
(6) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the council shall make rules to ensure cooperative development of individualized and coordinated service plans by local interagency councils and case management teams for children or youth at risk and their families who receive services under this chapter.
(b) For purposes of developing and implementing individualized and coordinated plans, the members of the local interagency councils and case management teams shall be considered to be employees of each agency represented on the team and entitled to review and discuss agency records as necessary in planning and providing services under a plan.
(c) Records shared by the teams remain the property of the supplying agency and may not be incorporated in the records of another agency unless transferred in accordance with standard procedures for transfer of records of the type in question.
Section 2024. Section 63M-9-202, which is renumbered from Section 63-75-5 is renumbered and amended to read:
[63-75-5
]. 63M-9-202. Steering committee -- Membership -- Duties.(1) As used in this section, "Council of Mental Health Programs" means a council consisting of all of the directors of Utah public mental health centers.
(2) There is established a Families, Agencies, and Communities Together Steering Committee.
(3) The steering committee shall include at least 18 voting members as follows:
(a) the director of the Division of Health Care Financing within the Department of Health;
(b) a representative annually designated by the Council of Mental Health Programs;
(c) the director of the Division of Substance Abuse and Mental Health within the Department of Human Services;
(d) the director of the Division of Juvenile Justice Services within the Department of Human Services;
(e) the state director of special education;
(f) the person responsible for programs for at risk students within the Utah State Office of Education, if that person is not the state director of special education;
(g) the Juvenile Court Administrator;
(h) a representative annually designated by substance abuse directors;
(i) the director of the Division of Child and Family Services within the Department of Human Services;
(j) the director of family health services programs;
(k) a representative annually designated by the Utah School Superintendents Association;
(l) a juvenile court judge designated by the presiding officer of the state Judicial Council;
(m) a representative annually designated by the local health officers;
(n) a representative annually designated by the executive director of the Department of Workforce Services;
(o) three at-large members appointed by a majority of the committee to four-year terms, who represent a statewide perspective on children and youth issues; and
(p) parent representatives appointed by members specified in Subsections (3)(a) through (o).
(4) Additional members may be selected by a majority of the committee to serve as voting members for four-year terms.
(5) (a) Except as required by Subsection (5)(b), as terms of current at-large committee members expire, the committee shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (5)(a), the committee shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of at-large committee members are staggered so that approximately half of the at-large committee members are appointed every two years.
(6) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(7) The members shall annually elect a chair and vice chair.
(8) A majority of committee members are necessary to constitute a quorum and to transact the business of the committee.
(9) (a) (i) Members who are not government employees may not receive compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the committee at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) (i) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their service.
(10) The committee shall:
(a) assist the council in fulfilling its duties set out in Section [63-75-4] 63M-9-201;
(b) monitor, solicit input for policy changes, and provide technical assistance to local collaborative programs; and
(c) report any formal recommendations to the council.
Section 2025. Section 63M-9-203, which is renumbered from Section 63-75-5.5 is renumbered and amended to read:
[63-75-5.5
]. 63M-9-203. Staffing.The Department of Human Services, the Department of Health, the State Office of Education, and the Office of the Court Administrator shall provide staff for the state council and steering committee.
Section 2026. Section 63M-9-301, which is renumbered from Section 63-75-5.7 is renumbered and amended to read:
Part 3. Local Councils
[63-75-5.7]. 63M-9-301. Local interagency council -- Composition -- Duties.
(1) Communities shall establish local interagency councils to improve service delivery to children and youth at risk, who are experiencing multiple problems and require services from more than one agency.
(2) Each local interagency council shall consist of representatives from each agency serving children and youth who are at risk and their families within the community.
(a) At a minimum the council shall consist of a family advocate and a local representative from the following:
(i) child welfare;
(ii) developmental disabilities;
(iii) education;
(iv) health;
(v) juvenile justice;
(vi) mental health;
(vii) parents;
(viii) substance abuse; and
(ix) youth corrections.
(b) The members of the local interagency council specified in Subsections (a)(i) through (ix) shall select three parents from the local community to serve on the local interagency council, representative of families with children.
(3) The local interagency council shall:
(a) provide general staffing for individual at risk cases which require services from more than one agency;
(b) provide services to meet the needs of individual cases or create new services to fill gaps in current service continuum;
(c) develop an individualized and coordinated service plan for each child or youth at risk and his family; and
(d) establish a case management process to implement individualized and coordinated service plans.
(4) Each local interagency council shall integrate into its operational procedures a method to involve parents in the staffing and service planning process.
(5) (a) Each local interagency council shall operate in accordance with a written agreement entered into by the participating agencies.
(b) The agreement shall include a provision that the participating agencies agree to implement the service recommendations in the individualized and coordinated service plan when not inconsistent with federal law.
Section 2027. Section 63M-9-401, which is renumbered from Section 63-75-6 is renumbered and amended to read:
Part 4. Service Programs
[63-75-6]. 63M-9-401. Prevention and early intervention programs -- Applicants -- Selection process.
(1) Within appropriations from the Legislature, the council shall implement prevention and early intervention programs for children and youth at risk.
(2) The council shall select a limited number of participants for programs described in Subsection (1) through applications submitted by local entities.
(3) (a) (i) The written consent of a parent or guardian is necessary for a child or youth at risk to participate in a program operated under Subsection (1).
(ii) Programs for children who are enrolled in public schools shall also be subject to the disclosure and written consent provisions of Section 53A-13-301 and Section 53A-13-302.
(iii) A parent or guardian may withdraw consent at any time.
(b) Notwithstanding Subsection (3)(a), a court may order a child's participation in a prevention and early intervention program.
(4) The prevention and early intervention services provided under this section shall:
(a) be comprehensive and collaborative;
(b) seek to strengthen and preserve families;
(c) be culturally sensitive, family focused, and community based;
(d) protect children and youth at risk;
(e) prevent abuse and neglect;
(f) provide access to health care; and
(g) prevent academic failure as defined in Subsection 78-3a-316(2)(a).
(5) (a) A case management team shall be established at each participating site.
(b) The case management team shall include at least the following:
(i) parents who represent a community perspective on children and youth at risk;
(ii) an educator at the school if the child receiving services is enrolled in a public school;
(iii) the principal if the child receiving services is enrolled in a public school;
(iv) a public health nurse;
(v) a representative of the local mental health authority;
(vi) a representative from the Division of Child and Family Services within the Department of Human Services;
(vii) a representative from the Employment Development Division; and
(viii) other persons considered appropriate by those persons specified in Subsections (5)(b)(i) through (vii), based on the needs of the child or youth and his family.
(6) (a) Nothing in this chapter shall be construed to waive the civil, constitutional, or parental rights of any child, youth, parent, or guardian.
(b) The case management team shall recommend that children or youth be evaluated for at risk intervention.
Section 2028. Section 63M-9-402, which is renumbered from Section 63-75-6.5 is renumbered and amended to read:
[63-75-6.5
]. 63M-9-402. Plans for collaborative service delivery systems.(1) The council shall provide incentives for communities to develop collaborative service delivery systems. If a community desires to enter into a contract with the council under this section, it shall submit to the council a plan for a collaborative service delivery system. That plan shall be in a form prescribed by the council and shall include at least the following:
(a) the community’s designation of a state agency, school district, political subdivision, or private entity that will act as fiscal agent for the plan;
(b) an assurance that the plan was developed through an inclusive process involving, when available, parents of children and youth at risk, representatives of state agencies and local governments, educators, school districts, child and family advocacy groups, religious and service organizations, and parent-teacher associations;
(c) a description of how the collaborative service delivery system will be administered, including the membership, powers, and duties of any board, commission, or council that will direct the service delivery system;
(d) a budget for the proposed collaborative service delivery system, including funds requested from the council;
(e) a description of a performance monitoring system to be used by the community, including the community’s performance goals and performance indicators; and
(f) any waivers to the rules of the State Board of Education, Department of Human Services, Department of Health, or rule of judicial administration necessary to carry out the community initiative.
(2) In awarding an application under this section, the council shall consider the extent to which the proposed community initiative:
(a) promotes early intervention and prevention;
(b) employs a collaborative method of delivering services;
(c) is endorsed by all public and private service delivery agencies that are anticipated to provide services to at-risk children and youth under the proposed collaborative service delivery system;
(d) is accountable for results;
(e) utilizes private community resources, including resources provided by religious and service organizations;
(f) utilizes the resources of the at risk child’s immediate and extended family;
(g) leverages county, municipal and school district funding sources to enhance the scope, extent, and availability of services;
(h) leverages private funding sources within the community to enhance the scope, extent, and availability of services;
(i) employs individualized and coordinated service plans;
(j) establishes a single point of entry for children, youth, and their families who require services;
(k) provides comprehensive services for children and youth at risk through grade 12 and appropriate prenatal care; and
(l) exhibits innovation in delivering services or addressing needs.
(3) (a) On or before July 1, 1996, the council shall adopt a prospectus to solicit proposals for the submission of plans.
(b) From among the proposals for plans received under Subsection (a), the council may award grants to communities to partially or fully pay for the development of plans.
(c) From the plans received under Subsection (b), the council may contract with the fiscal agent designated in the plan. That contract shall contain at least the following provisions:
(i) a description of the scope of work and program narrative;
(ii) a description of the community’s performance monitoring system which shall coordinate with existing performance monitoring systems, including the community’s performance goals and performance indicators;
(iii) an enumeration of the dollar amount that will be provided by the council to the fiscal agent; and
(iv) a waiver to an administrative rule, if any, granted by the agency that adopted the rule.
(d) For fiscal year 1996-97, a contract under Subsection (c) is for the period of time between April 1, 1997, and June 30, 1997. For each fiscal year thereafter, a contract may not exceed the period of the fiscal year.
Section 2029. Section 63M-9-501, which is renumbered from Section 63-75-7 is renumbered and amended to read:
Part 5. Evaluations and Reports
[63-75-7]. 63M-9-501. Evaluation of programs -- Report to legislative interim committee.
(1) At the end of each fiscal year, a final report shall be submitted to the council summarizing the outcome of each project under this chapter.
(2) (a) The council may conduct an independent evaluation of any or all of the projects to assess the status of services provided and identified outcomes.
(b) The council shall prepare and deliver a report on the program to the Legislature's Education, Health and Human Services, and Judiciary Interim Committees before October 1, 2005.
(c) The report shall include a recommendation by the council as to whether the program should be terminated, continued, or expanded.
Section 2030. Section 63M-10-101, which is renumbered from Section 63-92-1 is renumbered and amended to read:
CHAPTER 10. SERIOUS HABITUAL OFFENDER
COMPREHENSIVE ACTION PROGRAM (SHOCAP) ACT
Part 1. General Provisions
[63-92-1]. 63M-10-101. Title.
This chapter is known as the "Serious Habitual Offender Comprehensive Action Program (SHOCAP) Act."
Section 2031. Section 63M-10-201, which is renumbered from Section 63-92-2 is renumbered and amended to read:
Part 2. Serious Habitual Offender Comprehensive Action Program
[63-92-2]. 63M-10-201. Creation -- Purpose -- Administration -- Access.
(1) There is created the Serious Habitual Offender Comprehensive Action Program (SHOCAP) to establish a SHOCAP Database to identify and track youthful offenders in order to assist agencies in providing collaborative and comprehensive services to them.
(2) The database shall be administered by the Administrative Office of the Courts with information contributed by the following agencies:
(a) the State Office of Education, including all school districts;
(b) the Department of Health;
(c) the Department of Human Services, including all county mental health agencies;
(d) the Department of Public Safety;
(e) all county and municipal law enforcement agencies; and
(f) all county and district attorney offices.
(3) The database shall be maintained in accordance with guidelines established by the Administrative Office of the Courts so that the agencies listed in Subsection (2) can efficiently access the database.
(4) Information provided by schools in compliance with the provisions of this chapter is authorized under the Family Educational Rights and Privacy Act Regulations, 34 CFR Part 99.
(5) Information in the database provided by an agency to the database is considered to be the property of the agency providing the information and retains any classification given it under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(6) Any person who knowingly releases or discloses information from the database for a purpose other than authorized by this chapter or to a person who is not entitled to it is guilty of a class B misdemeanor.
(7) Neither the state nor the courts are liable to any person for gathering, managing, or using the information in the database as provided in this chapter.
Section 2032. Section 63M-10-202, which is renumbered from Section 63-92-3 is renumbered and amended to read:
[63-92-3
]. 63M-10-202. Establishment of local oversight committees -- Interagency information sharing.(1) The Commission on Criminal and Juvenile Justice shall administer the statewide SHOCAP oversight committee and provide periodic review of the programs.
(2) Counties or municipalities implementing SHOCAP shall form a local oversight committee composed of the following persons, or their designees:
(a) the district juvenile court administrator;
(b) the superintendent of the local school district;
(c) the local county attorney;
(d) a member of the local county or municipal legislative body;
(e) the local county sheriff;
(f) a local chief of police;
(g) the local chief of probation for the Juvenile Court;
(h) the regional director of the Division of Juvenile Justice Services;
(i) the regional director of the Division of Child and Family Services;
(j) a representative of a local public mental health provider; and
(k) any additional members considered appropriate by the local oversight committee.
(3) The local oversight committee shall develop, implement, and periodically review the following:
(a) standardized criteria as developed by the statewide SHOCAP oversight committee for determining who is a serious habitual offender (SHO);
(b) what information is needed on each offender for inclusion in the program;
(c) who will have access to the database;
(d) who will maintain the database and manage the information in the program;
(e) what the information in the database is to be used for; and
(f) penalties for improper use of the information in the database.
(4) The local oversight committee shall develop a written interagency information sharing agreement to be signed by the chief executive officer of each of the agencies represented on the oversight committee. The sharing agreement shall include the provisions requiring that:
(a) all records pertaining to a SHO be kept confidential;
(b) when a SHO is included in the SHOCAP program for the purposes of tracking and providing coordinated services, the local law enforcement agency or an agency designated by the interagency agreement shall as soon as reasonably possible notify the SHO and the parent or guardian of the SHO;
(c) the disclosure of information to other staff members of signatory agencies be made only to those staff members who provide direct services or supervision to the SHO; and
(d) all staff members of signatory agencies receiving confidential information concerning a SHO be subject to the confidentiality requirements of this chapter.
(5) Notwithstanding any other statutory provision, staff members of signatory agencies who provide direct services or supervision to SHOCAP youth may distribute photographs of SHOCAP youth to other staff members of signatory agencies who provide direct services or supervision to SHOCAP youth.
(6) The local oversight committee shall develop a program capable of maintaining the information determined to be necessary under Subsection (3).
Section 2033. Section 63M-11-101, which is renumbered from Section 63-99-101 is renumbered and amended to read:
CHAPTER 11. UTAH COMMISSION ON AGING
Part 1. General Provisions
[63-99-101]. 63M-11-101. Title.
This chapter is known as "Utah Commission on Aging."
Section 2034. Section 63M-11-102, which is renumbered from Section 63-99-103 is renumbered and amended to read:
[63-99-103
]. 63M-11-102. Creation -- Purpose.(1) In accordance with this chapter, there is created within the governor's office the Utah Commission on Aging.
(2) The commission's purpose is to:
(a) increase public and government understanding of the current and future needs of the state's aging population and how those needs may be most effectively and efficiently met;
(b) study, evaluate, and report on the projected impact that the state's increasing aging population will have on:
(i) government services;
(ii) health services;
(iii) social services;
(iv) the economy; and
(v) society in general;
(c) identify and recommend implementation of specific policies, procedures, and programs to respond to the needs and impact of the aging population relating to:
(i) government services;
(ii) health services;
(iii) social services;
(iv) the economy; and
(v) society in general;
(d) facilitate coordination of the functions of public and private entities concerned with the aging population; and
(e) accomplish the duties enumerated in Section [63-99-106] 63M-11-203.
Section 2035. Section 63M-11-103, which is renumbered from Section 63-99-102 is renumbered and amended to read:
[63-99-102
]. 63M-11-103. Definitions.As used in this chapter:
(1) "Aging" and "aged" are as defined in Section 62A-3-101.
(2) "Center on Aging" means the Center on Aging within the University of Utah.
(3) "Commission" means the Utah Commission on Aging, created in Section [63-99-103] 63M-11-102.
Section 2036. Section 63M-11-201, which is renumbered from Section 63-99-104 is renumbered and amended to read:
Part 2. Commission
[63-99-104]. 63M-11-201. Composition -- Appointments -- Terms -- Removal.
(1) The commission shall be composed of 21 voting members as follows:
(a) one senator, appointed by the president of the Senate;
(b) one representative, appointed by the speaker of the House of Representatives;
(c) the executive director of the Department of Health;
(d) the executive director of the Department of Human Services;
(e) the executive director of the Governor's Office of Economic Development;
(f) the executive director of the Department of Workforce Services; and
(g) 15 voting members, appointed by the governor, representing each of the following:
(i) the Utah Association of Area Agencies on Aging;
(ii) higher education in Utah;
(iii) the business community;
(iv) the Utah Association of Counties;
(v) the Utah League of Cities and Towns;
(vi) charitable organizations;
(vii) the health care provider industry;
(viii) financial institutions;
(ix) the legal profession;
(x) the public safety sector;
(xi) public transportation;
(xii) ethnic minorities;
(xiii) the industry that provides long-term care for the elderly;
(xiv) organizations or associations that advocate for the aging population; and
(xv) the general public.
(2) (a) A member appointed under Subsection (1)(g) shall serve a two-year term.
(b) Notwithstanding the term requirements of Subsection (2)(a), the governor may adjust the length of the initial commission members' terms to ensure that the terms are staggered so that approximately 1/2 of the members appointed under Subsection (1)(g) are appointed each year.
(c) When, for any reason, a vacancy occurs in a position appointed by the governor under Subsection (1)(g), the governor shall appoint a person to fill the vacancy for the unexpired term of the commission member being replaced.
(d) Members appointed under Subsection (1)(g) may be removed by the governor for cause.
(e) A member appointed under Subsection (1)(g) shall be removed from the commission and replaced by the governor if the member is absent for three consecutive meetings of the commission without being excused by the chair of the commission.
(3) In appointing the members under Subsection (1)(g), the governor shall:
(a) take into account the geographical makeup of the commission; and
(b) strive to appoint members who are knowledgeable or have an interest in issues relating to the aging population.
Section 2037. Section 63M-11-202, which is renumbered from Section 63-99-105 is renumbered and amended to read:
[63-99-105
]. 63M-11-202. Executive director -- Qualifications -- Appointment -- Functions.(1) (a) Subject to Subsections (1)(b) and (c), the executive director of the Center on Aging shall appoint an executive director of the commission.
(b) The executive director appointed under Subsection (1)(a) shall be a person knowledgeable and experienced in matters relating to:
(i) management; and
(ii) the aging population.
(c) The appointment described in Subsection (1)(a) is not effective until ratified by the governor.
(2) The executive director of the commission, under the direction of the commission and the executive director of the Center on Aging, shall administer the duties of the commission.
Section 2038. Section 63M-11-203, which is renumbered from Section 63-99-106 is renumbered and amended to read:
[63-99-106
]. 63M-11-203. Duties and powers of commission.(1) The commission shall:
(a) fulfill the commission's purposes as listed in Section [63-99-103] 63M-11-102;
(b) facilitate the communication and coordination of public and private entities that provide services to the aging population;
(c) study, evaluate, and report on the status and effectiveness of policies, procedures, and programs that provide services to the aging population;
(d) study and evaluate the policies, procedures, and programs implemented by other states that address the needs of the aging population;
(e) facilitate and conduct the research and study of issues related to aging;
(f) provide a forum for public comment on issues related to aging;
(g) provide public information on the aging population and the services available to the aging population;
(h) facilitate the provision of services to the aging population from the public and private sectors; and
(i) encourage state and local governments to analyze, plan, and prepare for the impacts of the aging population on services and operations.
(2) To accomplish its duties, the commission may:
(a) request and receive from any state or local governmental agency or institution, summary information relating to the aging population, including:
(i) reports;
(ii) audits;
(iii) projections; and
(iv) statistics;
(b) apply for and accept grants or donations for uses consistent with the duties of the commission from public or private sources; and
(c) appoint special committees to advise and assist the commission.
(3) All funds received under Subsection (2)(b) shall be:
(a) accounted for and expended in compliance with the requirements of federal and state law; and
(b) continuously available to the commission to carry out the commission's duties.
(4) (a) Members of a special committee described in Subsection (2)(c):
(i) shall be appointed by the commission;
(ii) may be:
(A) members of the commission; or
(B) individuals from the private or public sector; and
(iii) notwithstanding Section [63-99-109] 63M-11-206, shall not receive any reimbursement or pay for any work done in relation to the special committee.
(b) A special committee described in Subsection (2)(c) shall report to the commission on the progress of the special committee.
(5) This chapter does not diminish the planning authority conferred on state, regional, and local governments by existing law.
Section 2039. Section 63M-11-204, which is renumbered from Section 63-99-107 is renumbered and amended to read:
[63-99-107
]. 63M-11-204. Annual report by the commission.(1) The commission shall annually prepare and publish a report directed to the:
(a) governor; and
(b) Executive Appropriations Committee of the Legislature.
(2) The report described in Subsection (1) shall:
(a) describe how the commission fulfilled its statutory purposes and duties during the year; and
(b) contain recommendations on how the state should act to address issues relating to the aging population.
Section 2040. Section 63M-11-205, which is renumbered from Section 63-99-108 is renumbered and amended to read:
[63-99-108
]. 63M-11-205. Appointment of chair -- Meetings.(1) The governor shall appoint a member of the commission to serve as chair.
(2) (a) Subject to the other provisions of this Subsection (2), the chair is responsible for the call and conduct of meetings.
(b) The chair shall call and hold meetings of the commission at least bimonthly.
(c) One of the bimonthly meetings described in Subsection (2)(b) shall be held while the Legislature is convened in its annual session.
(d) One or more additional meetings may be called upon request by a majority of the commission's members.
(3) (a) A majority of the members of the commission constitute a quorum.
(b) The action of a majority of a quorum constitutes the action of the commission.
Section 2041. Section 63M-11-206, which is renumbered from Section 63-99-109 is renumbered and amended to read:
[63-99-109
]. 63M-11-206. Members serve without pay -- Reimbursement for expenses.(1) A member of the commission who is not a government employee shall receive no compensation or benefits for the member's services, but may:
(a) receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107; or
(b) decline to receive per diem and expenses for the member's service.
(2) A member of the commission who is a state government officer or employee and who does not receive salary, per diem, or expenses from the member's agency for the member's service may:
(a) receive per diem and expenses incurred in the performance of the member's official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107; or
(b) decline to receive per diem and expenses for the member's service.
(3) A legislator on the commission shall receive compensation and expenses as provided by law and legislative rule.
Section 2042. Section 63M-11-207, which is renumbered from Section 63-99-110 is renumbered and amended to read:
[63-99-110
]. 63M-11-207. Oversight -- Executive director salary -- Staff support -- Use of funds.(1) The Center on Aging shall:
(a) pay the salary, and oversee the performance of, the executive director of the commission;
(b) provide staff support for the executive director of the commission and the commission; and
(c) provide office space, furnishings, and supplies to the commission, the executive director of the commission, and support staff.
(2) The funds appropriated by the Legislature for the commission may only be used for the purposes described in this chapter.
Section 2043. Section 64-9b-6 is amended to read:
64-9b-6
. Rules.The department is authorized to promulgate rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to carry out the purposes of this chapter.
Section 2044. Section 64-13-10 is amended to read:
64-13-10
. Department duties -- Rulemaking authority.(1) The department shall provide probation supervision programs, parole supervision programs, correctional facilities, community correctional centers, and other programs or facilities as necessary and as required to accomplish its purposes.
(2) The department may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to carry out the provisions of this chapter.
Section 2045. Section 64-13-14.7 is amended to read:
64-13-14.7
. Victim notification of offender's release.(1) As used in this section:
(a) "Offender" means a person who committed an act of criminally injurious conduct against the victim and has been sentenced to incarceration in the custody of the department.
(b) "Victim" means a person against whom an offender committed criminally injurious conduct as defined in Section [63-25a-402] 63M-7-502, and who is entitled to notice of hearings regarding the offender's parole under Section 77-27-9.5. "Victim" includes the legal guardian of a victim, or the representative of the family of a victim who is deceased.
(2) (a) A victim shall be notified of an offender's release under Sections 64-13-14.5 and 64-13-14.7, or any other release to or from a half-way house, to a program outside of the prison such as a rehabilitation program, state hospital, community center other than a release on parole, commutation or termination for which notice is provided under Sections 77-27-9.5 and 77-27-9.7, transfer of the offender to an out-of-state facility, or an offender's escape, upon submitting a signed written request of notification to the Department of Corrections. The request shall include a current mailing address and may include current telephone numbers if the victim chooses.
(b) The department shall advise the victim of an offender's release or escape under Subsection (2)(a), in writing. However, if written notice is not feasible because the release is immediate or the offender escapes, the department shall make a reasonable attempt to notify the victim by telephone if the victim has provided a telephone number under Subsection (2)(a) and shall follow up with a written notice.
(3) Notice of victim rights under this section shall be provided to the victim in the notice of hearings regarding parole under Section 77-27-9.5. The department shall coordinate with the Board of Pardons and Parole to ensure the notice is implemented.
(4) A victim's request for notification under this section and any notification to a victim under this section is private information that the department may not release:
(a) to the offender under any circumstances; or
(b) to any other party without the written consent of the victim.
(5) The department may make rules as necessary to implement this section.
(6) The department or its employees acting within the scope of their employment are not civilly or criminally liable for failure to provide notice or improper notice under this section unless the failure or impropriety is willful or grossly negligent.
Section 2046. Section 64-13-17 is amended to read:
64-13-17
. Visitors to correctional facilities -- Correspondence.(1) (a) The following persons may visit correctional facilities without the consent of the department:
(i) the governor;
(ii) the attorney general;
(iii) a justice or judge of the courts of record;
(iv) members of the Board of Pardons and Parole;
(v) members of the Legislature;
(vi) the sheriff, district attorney, and county attorney for the county in which the correctional facility is located; and
(vii) any other persons authorized under rules prescribed by the department or court order.
(b) Any person acting under a court order may visit or correspond with any inmate without the consent of the department provided the department has received notice of, and is permitted to respond to, the court order. The court shall consider department policy when making its order.
(c) The department may limit access to correctional facilities when the department or governor declares an emergency or when there is a riot or other disturbance.
(2) (a) A person may not visit with any offender at any correctional facility, other than under Subsection (1), without the consent of the department.
(b) Offenders and all visitors, including those listed in Subsection (1), may be required to submit to a search or inspection of their persons and properties as a condition of visitation.
(3) The department shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing guidelines for providing written notice to visitors regarding prohibited items and regarding the fact that under state law all visitors may be required to submit to a search of their persons and properties as a condition of visitation.
(4) Offenders housed at any correctional facility may send and receive correspondence, subject to the rules of the department. All correspondence is subject to search, consistent with department rules.
Section 2047. Section 64-13-20 is amended to read:
64-13-20
. Investigative services -- Presentence investigations and diagnostic evaluations.(1) The department shall:
(a) provide investigative and diagnostic services and prepare reports to:
(i) assist the courts in sentencing;
(ii) assist the Board of Pardons and Parole in its decisionmaking responsibilities regarding offenders;
(iii) assist the department in managing offenders; and
(iv) assure the professional and accountable management of the department;
(b) establish standards for providing investigative and diagnostic services based on available resources, giving priority to felony cases;
(c) employ staff for the purpose of conducting:
(i) thorough presentence investigations of the social, physical, and mental conditions and backgrounds of offenders;
(ii) examinations when required by the court or the Board of Pardons and Parole; and
(iii) thorough diagnostic evaluations of offenders as the court finds necessary to supplement the presentence investigation report under Section 76-3-404.
(2) The department may provide recommendations concerning appropriate measures to be taken regarding offenders.
(3) (a) The presentence diagnostic evaluation and investigation reports prepared by the department are protected as defined in Section [63-2-304] 63G-2-305 and after sentencing may not be released except by express court order or by rules made by the Department of Corrections.
(b) The reports are intended only for use by:
(i) the court in the sentencing process;
(ii) the Board of Pardons and Parole in its decisionmaking responsibilities; and
(iii) the department in the supervision, confinement, and treatment of the offender.
(4) Presentence diagnostic evaluation and investigation reports shall be made available upon request to other correctional programs within the state if the offender who is the subject of the report has been committed or is being evaluated for commitment to the facility for treatment as a condition of probation or parole.
(5) (a) The presentence investigation reports shall include a victim impact statement in all felony cases and in misdemeanor cases if the defendant caused bodily harm or death to the victim.
(b) Victim impact statements shall:
(i) identify the victim of the offense;
(ii) itemize any economic loss suffered by the victim as a result of the offense;
(iii) identify any physical, mental, or emotional injuries suffered by the victim as a result of the offense, and the seriousness and permanence;
(iv) describe any change in the victim's personal welfare or familial relationships as a result of the offense;
(v) identify any request for mental health services initiated by the victim or the victim's family as a result of the offense; and
(vi) contain any other information related to the impact of the offense upon the victim or the victim's family that the court requires.
(6) If the victim is deceased; under a mental, physical, or legal disability; or otherwise unable to provide the information required under this section, the information may be obtained from the personal representative, guardian, or family members, as necessary.
(7) The department shall employ staff necessary to pursue investigations of complaints from the public, staff, or offenders regarding the management of corrections programs.
Section 2048. Section 64-13-21 is amended to read:
64-13-21
. Supervision of sentenced offenders placed in community -- Rulemaking -- POST certified parole or probation officers and peace officers -- Duties -- Supervision fee.(1) (a) The department, except as otherwise provided by law, shall supervise sentenced offenders placed in the community on probation by the courts, on parole by the Board of Pardons and Parole, or upon acceptance for supervision under the terms of the Interstate Compact for the Supervision of Parolees and Probationers.
(b) Standards for the supervision of offenders shall be established by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, giving priority, based on available resources, to felony offenders.
(2) Employees of the department who are POST certified as law enforcement officers or correctional officers and who are designated as parole and probation officers by the executive director have the following duties:
(a) monitoring, investigating, and supervising a parolee's or probationer's compliance with the conditions of the parole or probation agreement;
(b) investigating or apprehending any offender who has escaped from the custody of the department or absconded from supervision;
(c) providing investigative services for the courts, the department, or the Board of Pardons and Parole;
(d) supervising any offender during transportation; or
(e) collecting DNA specimens when the specimens are required under Section 53-10-404.
(3) (a) A monthly supervision fee of $30 shall be collected from each offender on probation or parole. The fee may be suspended or waived by the department upon a showing by the offender that imposition would create a substantial hardship or if the offender owes restitution to a victim.
(b) (i) The department shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, specifying the criteria for suspension or waiver of the supervision fee and the circumstances under which an offender may request a hearing.
(ii) In determining whether the imposition of the supervision fee would constitute a substantial hardship, the department shall consider the financial resources of the offender and the burden that the fee would impose, with regard to the offender's other obligations.
Section 2049. Section 64-13-25 is amended to read:
64-13-25
. Standards for programs -- Audits.(1) To promote accountability and to ensure safe and professional operation of correctional programs, the department shall establish minimum standards for the organization and operation of its programs.
(a) The standards shall be promulgated according to state rulemaking provisions. Those standards that apply to offenders are exempt from the provisions of [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act. Offenders are not a class of persons under that act.
(b) Standards shall provide for inquiring into and processing offender complaints.
(2) There shall be an audit for compliance with standards according to policies and procedures established by the department, for continued operation of correctional programs.
(a) At least every three years, the department shall internally audit all programs for compliance with established standards.
(b) All financial statements and accounts of the department shall be reviewed during the audit. Written review shall be provided to the managers of the programs and the executive director of the department.
(c) The reports shall be classified as confidential internal working papers and access is available at the discretion of the executive director or the governor, or upon court order.
Section 2050. Section 64-13-38 is amended to read:
64-13-38
. Emergency release due to overcrowding.(1) When the executive director of the department finds that the inmate population of the Utah State Prison has exceeded physical capacity for at least 45 calendar days, he may:
(a) notify the governor that an overcrowding emergency exists and provide him with information relevant to that determination; and
(b) notify the Board of Pardons and Parole of the existence of the overcrowding emergency so that the board may commence emergency releases pursuant to Subsection (2).
(2) Upon the governor's receipt of notification of the existence of an emergency release, the department shall:
(a) notify the board of the number of inmates who need to be released in order to eliminate the overcrowding emergency;
(b) in cooperation and consultation with the board, compile a list of inmates by chronological order according to their existing parole release dates, sufficient to eliminate the overcrowding emergency; and
(c) for each inmate listed in accordance with Subsection (2)(b), notify the board if the department has any reason to believe that the inmate has violated a disciplinary rule or for some other reason recommends that the inmate's existing parole date be rescinded.
(3) Unless the board has identified a reason to believe that the inmate's existing parole date should be rescinded, the parole release date of each inmate identified in Subsection (2)(b) may be advanced a sufficient number of days to allow for release.
(4) When the process described in Subsections (2) and (3) has been completed, the board may order the release of the eligible inmates.
(5) The department shall:
(a) send to the Commission on Criminal and Juvenile Justice a list of names of the inmates released under this section; and
(b) provide the name and address of each inmate to the local law enforcement agency for the political subdivision in which the inmate intends to reside.
(6) The department shall inform the governor when the emergency release has been completed.
(7) The board shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to carry out the provisions of this section.
Section 2051. Section 64-13-39.5 is amended to read:
64-13-39.5
. Definitions -- Health care for chronically or terminally ill offenders -- Notice to health care facility.(1) As used in this section:
(a) "Department or agency" means the Utah Department of Corrections or a department of corrections or government entity responsible for placing an offender in a facility located in Utah.
(b) "Chronically ill" has the same meaning as in Section 31A-36-102.
(c) "Facility" means an assisted living facility as defined in Subsection 26-21-2(5) and a nursing care facility as defined in Subsection 26-21-2(17), except that transitional care units and other long term care beds owned or operated on the premises of acute care hospitals or critical care hospitals are not facilities for the purpose of this section.
(d) "Offender" means an inmate whom the department or agency has given an early release, pardon, or parole due to a chronic or terminal illness.
(e) "Terminally ill" has the same meaning as in Subsection 31A-36-102(11).
(2) If an offender from Utah or any other state is admitted as a resident of a facility due to the chronic or terminal illness, the department or agency placing the offender shall:
(a) provide written notice to the administrator of the facility no later than 15 days prior to the offender's admission as a resident of a facility, stating:
(i) the offense for which the offender was convicted and a description of the actual offense;
(ii) the offender's status with the department or agency;
(iii) that the information provided by the department or agency regarding the offender shall be provided to employees of the facility no later than ten days prior to the offender's admission to the facility; and
(iv) the contact information for:
(A) the offender's parole officer and also a point of contact within the department or agency, if the offender is on parole; and
(B) a point of contact within the department or agency, if the offender is not under parole supervision but was given an early release or pardon due to a chronic or terminal illness;
(b) make available to the public on the Utah Department of Corrections' website and upon request:
(i) the name and address of the facility where the offender resides; and
(ii) the date the offender was placed at the facility; and
(c) provide a training program for employees who work in a facility where offenders reside, and if the offender is placed at the facility by:
(i) the Utah Department of Corrections, the department shall provide the training program for the employees; and
(ii) by a department or agency from another state, that state's department or agency shall arrange with the Utah Department of Corrections to provide the training required by this Subsection (2), if training has not already been provided by the Utah Department of Corrections, and shall provide to the Utah Department of Corrections any necessary compensation for this service.
(3) The administrator of the facility shall:
(a) provide residents of the facility or their guardians notice that a convicted felon is being admitted to the facility no later than ten days prior to the offender's admission to the facility;
(b) advise potential residents or their guardians of persons under Subsection (2) who are current residents of the facility; and
(c) provide training, offered by the Utah Department of Corrections, in the safe management of offenders for all employees.
(4) The Utah Department of Corrections shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing:
(a) a consistent format and procedure for providing notification to facilities and information to the public in compliance with Subsection (2); and
(b) a training program, in compliance with Subsection (3) for employees, who work at facilities where offenders reside to ensure the safety of facility residents and employees.
Section 2052. Section 64-13-41 is amended to read:
64-13-41
. Limitations on offender access to sexually explicit material.(1) As used in this section:
(a) (i) "Commercially published information or material" means any book, booklet, pamphlet, magazine, periodical, newsletter, or similar document, including stationery and greeting cards, and video and audio tapes, disks, or other recording, that is distributed or made available through any means or media for a commercial purpose.
(ii) "Commercially published information or material" includes an extraction, photocopy, clipping, or electronically created copy made from any of the items under Subsection (1)(a)(i).
(b) (i) "Features nudity" means the information or material:
(A) that, in the case of a one-time publication or issue, promotes itself based upon depictions of nudity or sexually explicit conduct; or
(B) that, in the case of information or material other than under Subsection (1)(b)(i)(A), contains depictions of nudity or sexually explicit conduct on a routine or regular basis.
(ii) The department may by rule, pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, exclude from the definition in Subsection (1)(b)(i) information or material containing nudity that is illustrative of medical, educational, or anthropological content.
(c) "Nudity" means a pictorial depiction where genitalia or female breasts are exposed.
(d) "Offender" means any person who has been convicted of a crime and is housed in a prison, jail, youth detention facility, or community correctional center.
(e) "Sexually explicit" means a pictorial depiction of actual or simulated sexual acts, including sexual intercourse, sodomy, or masturbation.
(f) "State funds" means state or local funding provided to the department, and includes legislative appropriations to the department, dedicated credits, grants, and monies for jail reimbursement to county correctional facilities under Title 64, Chapter 13, Department of Corrections - State Prison, private providers, and contractors.
(2) State funds may not be used to distribute or make available any commercially published information or material to an offender when the state employee, contractor, or private provider who has the authority to expend the funds knows that the commercially published information or material is sexually explicit or features nudity.
(3) (a) When the department rejects commercially published information or material for distribution to an offender under this section, the department shall advise the publisher or sender that it may request reconsideration by the department of the decision to reject the material. However, the department need advise the publisher or sender only once in the case of information or material that on a routine or regular basis either depicts sexually explicit material or features nudity.
(b) The department shall make rules pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish an administrative reconsideration process.
(c) For purposes of extraordinary relief under Rule 65B, Utah Rules of Civil Procedure, this administrative reconsideration process is a plain, speedy, and adequate legal remedy that must be exhausted before extraordinary relief is available.
(d) There is no right to judicial review of the department's decision under this section to reject material for distribution.
(4) This section does not apply to sexually explicit material used under Section 76-10-1207.5 for the assessment or treatment of an offender.
Section 2053. Section 64-13a-13 is amended to read:
64-13a-13
. Purchases of material -- Exemption.(1) The Division of Correctional Industries is exempt from the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, in respect to goods or services purchased by or sold to the department.
(2) The purchase of raw materials for use by the division in manufacturing or processing products for resale is exempt from the powers and duties of the state purchasing agent.
Section 2054. Section 65A-1-4 is amended to read:
65A-1-4
. Division of Forestry, Fire and State Lands -- Creation -- Power and authority.(1) (a) The Division of Forestry, Fire and State Lands is created within the Department of Natural Resources under the administration and general supervision of the executive director of the department.
(b) The division is the executive authority for the management of sovereign lands, and the state's mineral estates on lands other than school and institutional trust lands, and shall provide for forestry and fire control activities as required in Section 65A-8-101.
(2) The division shall adopt rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to fulfill the purposes of this title.
(3) The director of the Division of Forestry, Fire and State Lands is the executive and administrative head of the division and shall be a person experienced in administration and management of natural resources.
(4) The director shall inform the council:
(a) in an annual meeting of the division's plans, policies, and budget; and
(b) of policy changes and developing conflicts.
(5) The director shall give the council an opportunity to advise on the changes and conflicts.
(6) (a) An aggrieved party to a final action by the director may appeal that action to the executive director of the Department of Natural Resources within 20 days after the action.
(b) The executive director shall rule on the director's action within 20 days after receipt of the appeal.
Section 2055. Section 65A-8-105 is amended to read:
65A-8-105
. Urban and community forestry program.(1) An urban and community forestry program is created within the division.
(2) The purpose of the program is to encourage the planting and maintenance of trees within municipalities and unincorporated communities.
(3) The division may:
(a) advise and assist municipalities, counties, and other public and private entities in developing and coordinating policies, programs, and activities promoting urban and community forestry;
(b) receive, by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, federal funds for the urban and community forestry program; and
(c) provide grants to municipalities and counties for urban and community forestry programs and cooperative projects.
(4) The division shall:
(a) develop a public education program to inform tree care professionals and citizens of the hazards involved with the planting of new trees and the maintenance of existing trees near overhead power lines and highways; and
(b) develop and implement a program of public awareness to inform citizens about the benefits of planting trees in urban areas and how to maintain trees.
Section 2056. Section 65A-8-207 is amended to read:
65A-8-207
. Division to administer Wildland Fire Suppression Fund -- Rulemaking -- Procedures.(1) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules to administer the Wildland Fire Suppression Fund, including rules:
(a) requiring documentation for:
(i) the number of acres of privately or county-owned land in the unincorporated area of a participating county; and
(ii) an acre or real property exempt in Subsection 65A-8-205(2)(b);
(b) describing the method or formula for determining:
(i) normal fire suppression costs; and
(ii) equity payments required by Section 65A-8-205; and
(c) specifying fire suppression and presuppression costs that may be paid with disbursements from the fund.
(2) By following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division shall determine whether an acre or real property is eligible for the exemption provided in Subsection 65A-8-205(2)(b).
Section 2057. Section 65A-8a-103 is amended to read:
65A-8a-103
. Registration of operators.(1) An operator intending to conduct forest practices in Utah, except a landowner conducting forest practices on his or her own land, shall register with the division.
(2) The operator shall submit the following information to the division:
(a) the name of the company;
(b) the name of the state where the company is incorporated; and
(c) the name, telephone number, and address of a company officer and an on-the-ground supervisor.
(3) In consultation with industry representatives, the division may establish, by rule, minimum requirements for registration of operators in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) The division shall make available to landowners a list of registered operators.
Section 2058. Section 67-1-2 is amended to read:
67-1-2
. Sending list of gubernatorial nominees to Senate and to Office of Legislative Research and General Counsel.(1) Unless waived by a majority of the president of the Senate, the Senate majority leader, and the Senate minority leader, 15 days before any Senate session to confirm any gubernatorial nominee, except a judicial appointment, the governor shall send to each member of the Senate and to the Office of Legislative Research and General Counsel:
(a) a list of each nominee for an office or position made by the governor in accordance with the Utah Constitution and state law; and
(b) any information that may support or provide biographical information about the nominee, including resumes and curriculum vitae.
(2) When the governor makes a judicial appointment, the governor shall immediately provide to the president of the Senate and the Office of Legislative Research and General Counsel:
(a) the name of the judicial appointee; and
(b) the judicial appointee's:
(i) resume;
(ii) complete file of all the application materials the governor received from the Judicial Nominating Commission; and
(iii) any other related documents, including any letters received by the governor about the appointee, unless the letter specifically directs that it may not be shared.
(3) The governor shall inform the president of the Senate and the Office of Legislative Research and General Counsel of the number of letters withheld pursuant to Subsection (2)(b)(iii).
(4) (a) Letters of inquiry submitted by any judge at the request of any judicial nominating commission shall be classified as private in accordance with Section [63-2-302] 63G-2-302.
(b) All other records received from the governor pursuant to this Subsection (4) may be classified as private in accordance with Section [63-2-302] 63G-2-302.
(5) The Senate shall consent or refuse to give its consent to the nomination or judicial appointment.
Section 2059. Section 67-1a-2.5 is amended to read:
67-1a-2.5
. Fees of lieutenant governor.In addition to the fees prescribed by Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, and Title 16, Chapter 10a, Utah Revised Business Corporation Act, the lieutenant governor shall receive and determine fees pursuant to Section [63-38-3.2] 63J-1-303 for the following:
(1) for a copy of any law, resolution, record, or other document or paper on file in the lieutenant governor's office, other than documents or papers filed under Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, and Title 16, Chapter 10a, Utah Revised Business Corporation Act;
(2) for affixing certificate and the Great Seal of the state, except on documents filed under Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, and Title 16, Chapter 10a, Utah Revised Business Corporation Act;
(3) for each commission signed by the governor, except that no charge may be made for commissions to public officers serving without compensation;
(4) for each warrant of arrest issued by the governor and attested by the lieutenant governor upon the requisition of any other state or territory;
(5) for recording miscellaneous papers or documents;
(6) for filing any paper or document not otherwise provided for; and
(7) for searching records and archives of the state, except that no member of the Legislature or other state or county officer may be charged for any search relative to matters appertaining to the duties of his office or for a certified copy of any law or resolution relative to his official duties passed by the Legislature.
Section 2060. Section 67-3-1 is amended to read:
67-3-1
. Functions and duties.(1) (a) The state auditor is the auditor of public accounts and is independent of any executive or administrative officers of the state.
(b) The state auditor is not limited in the selection of personnel or in the determination of the reasonable and necessary expenses of his office.
(2) The state auditor shall examine and certify annually in respect to each fiscal year, financial statements showing:
(a) the condition of the state's finances;
(b) the revenues received or accrued;
(c) expenditures paid or accrued;
(d) the amount of unexpended or unencumbered balances of the appropriations to the agencies, departments, divisions, commissions, and institutions; and
(e) the cash balances of the funds in the custody of the state treasurer.
(3) (a) The state auditor shall:
(i) audit each permanent fund, each special fund, the General Fund, and the accounts of any department of state government or any independent agency or public corporation as the law requires, as the auditor determines is necessary, or upon request of the governor or the Legislature;
(ii) perform the audits in accordance with generally accepted auditing standards and other auditing procedures as promulgated by recognized authoritative bodies;
(iii) as the auditor determines is necessary, conduct the audits to determine:
(A) honesty and integrity in fiscal affairs;
(B) accuracy and reliability of financial statements;
(C) effectiveness and adequacy of financial controls; and
(D) compliance with the law.
(b) If any state entity receives federal funding, the state auditor shall ensure that the audit is performed in accordance with federal audit requirements.
(c) (i) The costs of the federal compliance portion of the audit may be paid from an appropriation to the state auditor from the General Fund.
(ii) If an appropriation is not provided, or if the federal government does not specifically provide for payment of audit costs, the costs of the federal compliance portions of the audit shall be allocated on the basis of the percentage that each state entity's federal funding bears to the total federal funds received by the state.
(iii) The allocation shall be adjusted to reflect any reduced audit time required to audit funds passed through the state to local governments and to reflect any reduction in audit time obtained through the use of internal auditors working under the direction of the state auditor.
(4) (a) Except as provided in Subsection (4)(b), the state auditor shall, in addition to financial audits, and as the auditor determines is necessary, conduct performance and special purpose audits, examinations, and reviews of any entity that receives public funds, including a determination of any or all of the following:
(i) the honesty and integrity of all its fiscal affairs;
(ii) whether or not its administrators have faithfully complied with legislative intent;
(iii) whether or not its operations have been conducted in an efficient, effective, and cost-efficient manner;
(iv) whether or not its programs have been effective in accomplishing the intended objectives; and
(v) whether or not its management, control, and information systems are adequate and effective.
(b) The auditor may not conduct performance and special purpose audits, examinations, and reviews of any entity that receives public funds if the entity:
(i) has an elected auditor; and
(ii) has, within the entity's last budget year, had its financial statements or performance formally reviewed by another outside auditor.
(5) The state auditor shall administer any oath or affirmation necessary to the performance of the duties of the auditor's office, and may subpoena witnesses and documents, whether electronic or otherwise, and examine into any matter that the auditor considers necessary.
(6) The state auditor may require all persons who have had the disposition or management of any property of this state or its political subdivisions to submit statements regarding it at the time and in the form that the auditor requires.
(7) The state auditor shall:
(a) except where otherwise provided by law, institute suits in Salt Lake County in relation to the assessment, collection, and payment of its revenues against:
(i) persons who by any means have become entrusted with public monies or property and have failed to pay over or deliver those monies or property; and
(ii) all debtors of the state;
(b) collect and pay into the state treasury all fees received by the state auditor;
(c) perform the duties of a member of all boards of which the state auditor is a member by the constitution or laws of the state, and any other duties that are prescribed by the constitution and by law;
(d) stop the payment of the salary of any state official or state employee who:
(i) refuses to settle accounts or provide required statements about the custody and disposition of public funds or other state property;
(ii) refuses, neglects, or ignores the instruction of the state auditor or any controlling board or department head with respect to the manner of keeping prescribed accounts or funds; or
(iii) fails to correct any delinquencies, improper procedures, and errors brought to the official's or employee's attention;
(e) establish accounting systems, methods, and forms for public accounts in all taxing or fee-assessing units of the state in the interest of uniformity, efficiency, and economy;
(f) superintend the contractual auditing of all state accounts;
(g) subject to Subsection (8), withhold state allocated funds or the disbursement of property taxes from any state taxing or fee-assessing unit, if necessary, to ensure that officials and employees in those taxing units of the state comply with state laws and procedures in the budgeting, expenditures, and financial reporting of public funds; and
(h) subject to Subsection (9), withhold the disbursement of tax monies from any county, if necessary, to ensure that officials and employees in the county comply with Section 59-2-303.1.
(8) Except as otherwise provided by law, the state auditor may not withhold funds under Subsection (7)(g) until a taxing or fee-assessing unit has received formal written notice of noncompliance from the auditor and has been given 60 days to make the specified corrections.
(9) The state auditor may not withhold funds under Subsection (7)(h) until a county has received formal written notice of noncompliance from the auditor and has been given 60 days to make the specified corrections.
(10) The state auditor shall:
(a) establish audit guidelines and procedures for audits of local mental health and substance abuse authorities and their contract providers, conducted pursuant to Title 17, Chapter 43, Parts 2, Local Substance Abuse Authorities and 3, Local Mental Health Authorities, Title 51, Chapter 2a, Accounting Reports from Political Subdivisions, Interlocal Organizations, and Other Local Entities Act, and Title 62A, Chapter 15, Substance Abuse and Mental Health Act; and
(b) ensure that those guidelines and procedures provide assurances to the state that:
(i) state and federal funds appropriated to local mental health authorities are used for mental health purposes;
(ii) a private provider under an annual or otherwise ongoing contract to provide comprehensive mental health programs or services for a local mental health authority is in compliance with state and local contract requirements, and state and federal law;
(iii) state and federal funds appropriated to local substance abuse authorities are used for substance abuse programs and services; and
(iv) a private provider under an annual or otherwise ongoing contract to provide comprehensive substance abuse programs or services for a local substance abuse authority is in compliance with state and local contract requirements, and state and federal law.
(11) The state auditor may, in accordance with the auditor's responsibilities for political subdivisions of the state as provided in Title 51, Chapter 2a, Accounting Reports from Political Subdivisions, Interlocal Organizations, and Other Local Entities Act, initiate audits or investigations of any political subdivision that are necessary to determine honesty and integrity in fiscal affairs, accuracy and reliability of financial statements, effectiveness, and adequacy of financial controls and compliance with the law.
(12) (a) The state auditor may not audit work that the state auditor performed before becoming state auditor.
(b) If the state auditor has previously been a responsible official in state government whose work has not yet been audited, the Legislature shall:
(i) designate how that work shall be audited; and
(ii) provide additional funding for those audits, if necessary.
(13) The state auditor shall:
(a) with the assistance, advice, and recommendations of an advisory committee appointed by the state auditor from among local district boards of trustees, officers, and employees and special service district boards, officers, and employees:
(i) prepare a Uniform Accounting Manual for Local Districts that:
(A) prescribes a uniform system of accounting and uniform budgeting and reporting procedures for local districts under Title 17B, Limited Purpose Local Government Entities - Local Districts, and special service districts under Title 17A, Chapter 2, Part 13, Utah Special Service District Act;
(B) conforms with generally accepted accounting principles; and
(C) prescribes reasonable exceptions and modifications for smaller districts to the uniform system of accounting, budgeting, and reporting;
(ii) maintain the manual under Subsection (13)(a) so that it continues to reflect generally accepted accounting principles;
(iii) conduct a continuing review and modification of procedures in order to improve them;
(iv) prepare and supply each district with suitable budget and reporting forms; and
(v) prepare instructional materials, conduct training programs, and render other services considered necessary to assist local districts and special service districts in implementing the uniform accounting, budgeting, and reporting procedures; and
(b) continually analyze and evaluate the accounting, budgeting, and reporting practices and experiences of specific local districts and special service districts selected by the state auditor and make the information available to all districts.
(14) (a) The following records in the custody or control of the state auditor are protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act:
(i) records that would disclose information relating to allegations of personal misconduct, gross mismanagement, or illegal activity of a past or present governmental employee if the information or allegation cannot be corroborated by the state auditor through other documents or evidence, and the records relating to the allegation are not relied upon by the state auditor in preparing a final audit report;
(ii) records and audit workpapers to the extent they would disclose the identity of a person who during the course of an audit, communicated the existence of any waste of public funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation adopted under the laws of this state, a political subdivision of the state, or any recognized entity of the United States, if the information was disclosed on the condition that the identity of the person be protected;
(iii) before an audit is completed and the final audit report is released, records or drafts circulated to a person who is not an employee or head of a governmental entity for their response or information;
(iv) records that would disclose an outline or part of any audit survey plans or audit program; and
(v) requests for audits, if disclosure would risk circumvention of an audit.
(b) The provisions of Subsections (14)(a)(i), (ii), and (iii) do not prohibit the disclosure of records or information that relate to a violation of the law by a governmental entity or employee to a government prosecutor or peace officer.
(c) The provisions of this Subsection (14) do not limit the authority otherwise given to the state auditor to classify a document as public, private, controlled, or protected under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 2061. Section 67-4a-703 is amended to read:
67-4a-703
. Interest and penalties.(1) A person who fails to pay or deliver property within the time required by this chapter shall pay interest to the administrator at the rate of 12% per annum on the property or value of the property from the date the property should have been paid or delivered.
(2) (a) A person who willfully fails to file any report, or perform a duty required by this chapter, or to pay or deliver property to the administrator as required by this chapter shall pay a civil penalty equal to 20% of the value of the property that should have been paid or delivered.
(b) The administrator shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in imposing civil penalties under this section.
(3) (a) It is unlawful for any person to willfully refuse to pay or deliver property to the administrator after written demand by the administrator as required by this chapter.
(b) Any person who violates this Subsection (3) is guilty of a class B misdemeanor.
(4) The administrator may, in appropriate circumstances:
(a) waive the payment of civil penalties;
(b) waive the payment of interest; or
(c) reduce the amount of the interest.
Section 2062. Section 67-5-15 is amended to read:
67-5-15
. Records of the attorney general.(1) A record provided to the Office of the Attorney General by a client governmental entity shall be considered a record of the client governmental entity for purposes of [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, if the client governmental entity retains a copy of the record.
(2) Notwithstanding Subsection [63-2-201] 63G-2-201(5), records may be exchanged between the Office of the Attorney General and a client governmental entity, without meeting the requirements of Section [63-2-206] 63G-2-206 provided that they are used only for the purpose of representing the client governmental entity.
Section 2063. Section 67-5-18 is amended to read:
67-5-18
. Obscenity and Pornography Complaints Ombudsman -- Powers.(1) As used in this section, "pornography" means material or a performance that meets the requirements of Subsection 76-10-1203(1).
(2) (a) There is created an Obscenity and Pornography Complaints Ombudsman in the Office of the Attorney General.
(b) The attorney general shall hire an attorney licensed to practice law in Utah who has knowledge of obscenity and pornography law and, if possible, who has a background or expertise in investigating and prosecuting obscenity and pornography law violations to fill the position.
(c) The person hired to fill the position is an exempt employee.
(d) The attorney general may hire clerks, interns, or other personnel to assist the pornography complaints ombudsman.
(3) The Obscenity and Pornography Complaints Ombudsman shall:
(a) develop and maintain expertise in and understanding of laws designed to control or eliminate obscenity and pornography and the legal standards governing the regulation or elimination of obscenity and pornography;
(b) advise citizens and local governments about remedies to address instances of obscenity and pornography in their communities;
(c) advise local governments about ways to strengthen local laws and ordinances addressing obscenity and pornography;
(d) advise local governments about strategies to restrict, suppress, or eliminate obscenity and pornography in their communities;
(e) at the request of the attorney general or a local government, assist a local government in investigating and prosecuting state and local laws and ordinances addressing obscenity or pornography;
(f) before beginning an investigation:
(i) contact the county, district, or city attorney within whose jurisdiction an investigation by the Obscenity and Pornography Complaints Ombudsman will take place and inform that county, district, or city attorney of the investigation; and
(ii) coordinate efforts and share records, in accordance with Section [63-2-206] 63G-2-206, with the county, district, or city's attorney referred to in Subsection (3)(f)(i) throughout the investigation;
(g) advise citizens about their options to address specific complaints about obscenity or pornography in their communities;
(h) when requested by a citizen or local government official, arbitrate between citizens and businesses to resolve complaints about obscenity or pornography;
(i) provide information to private citizens, civic groups, government entities, and other interested parties about the dangers of obscenity and pornography, the current laws to restrict, suppress, or eliminate pornography, and their rights and responsibilities under those laws;
(j) draft model ordinances that contain:
(i) various degrees of regulation of sexually-oriented businesses; and
(ii) options for local communities that can be used to regulate pornography and obscenity;
(k) assist political subdivisions in:
(i) drafting model rules, regulations, and policies; and
(ii) providing recommendations for enforcing those rules, regulations, and policies;
(l) in conjunction with Utah's county and municipal prosecuting attorneys:
(i) review Utah's and Idaho's moral nuisance law;
(ii) draft a comprehensive moral nuisance law for Utah and a model ordinance for municipalities and counties to provide an effective mechanism to abate and discourage obscenity and pornography; and
(iii) present the draft to the Legislature's Judiciary Interim Committee before October 25, 2001; and
(m) establish a program to combat Internet pornography and to assist parents in protecting their children from Internet pornography.
Section 2064. Section 67-5a-8 is amended to read:
67-5a-8
. Administration.(1) (a) The administration costs of this chapter, including council staff compensation, shall be funded from appropriations made by the Legislature to the Office of the Attorney General for the support of the council from the Public Safety Support Account established in Section [63-63a-4] 51-9-404.
(b) Funds available from other sources may also be appropriated by the Legislature to the Office of the Attorney General for the administration of this chapter.
(2) In exercising its duties, the council shall minimize costs of administration and utilize existing training facilities and resources where possible so the greatest portion of the funds available are expended for training prosecuting attorneys.
(3) The council may reimburse council staff for travel and per diem expenses from the appropriations made from the Public Safety Support Account to the Office of the Attorney General for the support of the council, in an amount not to exceed the amounts approved by the director of the Division of Finance.
Section 2065. Section 67-5b-107 is amended to read:
67-5b-107
. Immunity -- Limited liability.(1) Officers and employees performing services for two or more public agencies pursuant to contracts executed under the provisions of this part are considered to be officers and employees of the public agency employing their services, even though performing those functions outside of the territorial limits of any one of the contracting public agencies, and are considered to be officers and employees of public agencies in accordance with [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(2) The officers and employees of the center, while acting within the scope of their authority, are not subject to any personal or civil liability resulting from carrying out any of the purposes of a center under the provisions of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(3) A volunteer is considered a government employee in accordance with Section 67-20-3 and entitled to immunity under the provisions of [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(4) A volunteer, other than one considered a government employee in accordance with Section 67-20-3, may not incur any personal financial liability for any tort claim or other action seeking damage for an injury arising from any act or omission of the volunteer while providing services for the nonprofit organization if:
(a) the individual was acting in good faith and reasonably believed he was acting within the scope of his official functions and duties with the center; and
(b) the damage or injury was not caused by an intentional or knowing act by the volunteer which constitutes illegal or wanton misconduct.
(5) The center is not liable for the acts or omissions of its volunteers in any circumstance where the acts of its volunteers are not as described in Subsection (4) unless:
(a) the center had, or reasonably should have had, reasonable notice of the volunteer's unfitness to provide services to the center under circumstances that make the center's use of the volunteer reckless or wanton in light of that notice; or
(b) a business employer would be liable under the laws of this state if the act or omission were the act or omission of one of its employees.
Section 2066. Section 67-16-3 is amended to read:
67-16-3
. Definitions.As used in this chapter:
(1) "Agency" means any department, division, agency, commission, board, council, committee, authority, or any other institution of the state or any of its political subdivisions.
(2) "Agency head" means the chief executive or administrative officer of any agency.
(3) "Assist" means to act, or offer or agree to act, in such a way as to help, represent, aid, advise, furnish information to, or otherwise provide assistance to a person or business entity, believing that such action is of help, aid, advice, or assistance to such person or business entity and with the intent to assist such person or business entity.
(4) "Business entity" means a sole proprietorship, partnership, association, joint venture, corporation, firm, trust, foundation, or other organization or entity used in carrying on a business.
(5) "Compensation" means anything of economic value, however designated, which is paid, loaned, granted, given, donated, or transferred to any person or business entity by anyone other than the governmental employer for or in consideration of personal services, materials, property, or any other thing whatsoever.
(6) "Controlled, private, or protected information" means information classified as controlled, private, or protected in [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, or other applicable provision of law.
(7) "Governmental action" means any action on the part of the state, a political subdivision, or an agency, including:
(a) any decision, determination, finding, ruling, or order; and
(b) any grant, payment, award, license, contract, subcontract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act in respect to.
(8) "Improper disclosure" means disclosure of controlled, private, or protected information to any person who does not have the right to receive the information.
(9) "Legislative employee" means any officer or employee of the Legislature, or any committee of the Legislature, who is appointed or employed to serve, either with or without compensation, for an aggregate of less than 800 hours during any period of 365 days. "Legislative employee" does not include legislators.
(10) "Legislator" means a member or member-elect of either house of the Legislature of the state of Utah.
(11) "Political subdivision" means a district, county, school district, or any other political subdivision of the state that is not an agency, but does not include municipalities.
(12) "Public employee" means a person who is not a public officer who is employed on a full-time, part-time, or contract basis by the state or any of its political subdivisions. "Public employee" does not include legislators or legislative employees.
(13) "Public officer" means all elected or appointed officers of the state or any of its political subdivisions who occupy policymaking posts. "Public officer" does not include legislators or legislative employees.
(14) "State" means the state of Utah.
(15) "Substantial interest" means the ownership, either legally or equitably, by an individual, his spouse, or his minor children, of at least 10% of the outstanding capital stock of a corporation or a 10% interest in any other business entity.
Section 2067. Section 67-16-4 is amended to read:
67-16-4
. Improperly disclosing or using private, controlled, or protected information -- Using position to secure privileges or exemptions -- Accepting employment which would impair independence of judgment or ethical performance -- Exceptions.(1) Except as provided in Subsection (3), it is an offense for a public officer, public employee, or legislator, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to:
(a) accept employment or engage in any business or professional activity that he might reasonably expect would require or induce him to improperly disclose controlled information that he has gained by reason of his official position;
(b) disclose or improperly use controlled, private, or protected information acquired by reason of his official position or in the course of official duties in order to further substantially the officer's or employee's personal economic interest or to secure special privileges or exemptions for himself or others;
(c) use or attempt to use his official position to:
(i) further substantially the officer's or employee's personal economic interest; or
(ii) secure special privileges or exemptions for himself or others;
(d) accept other employment that he might expect would impair his independence of judgment in the performance of his public duties; or
(e) accept other employment that he might expect would interfere with the ethical performance of his public duties.
(2) (a) Subsection (1) does not apply to the provision of education-related services to public school students by public education employees acting outside their regular employment.
(b) The conduct referred to in Subsection (2)(a) is subject to Section 53A-1-402.5.
(3) A county legislative body member who does not participate in the process of selecting a mental health or substance abuse service provider does not commit an offense under Subsection (1)(a) or (b) by:
(a) serving also as a member of the governing board of the provider of mental health or substance abuse services under contract with the county; or
(b) discharging, in good faith, the duties and responsibilities of each position.
Section 2068. Section 67-16-5 is amended to read:
67-16-5
. Accepting gift, compensation, or loan -- When prohibited.(1) As used in this section, "economic benefit tantamount to a gift" includes:
(a) a loan at an interest rate that is substantially lower than the commercial rate then currently prevalent for similar loans; and
(b) compensation received for private services rendered at a rate substantially exceeding the fair market value of the services.
(2) It is an offense for a public officer or public employee, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to knowingly receive, accept, take, seek, or solicit, directly or indirectly for himself or another a gift of substantial value or a substantial economic benefit tantamount to a gift:
(a) that would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties;
(b) that the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken; or
(c) if he recently has been, is now, or in the near future may be involved in any governmental action directly affecting the donor or lender, unless a disclosure of the gift, compensation, or loan and other relevant information has been made in the manner provided in Section 67-16-6.
(3) Subsection (2) does not apply to:
(a) an occasional nonpecuniary gift, having a value of not in excess of $50;
(b) an award publicly presented in recognition of public services;
(c) any bona fide loan made in the ordinary course of business; or
(d) a political campaign contribution.
Section 2069. Section 67-16-5.3 is amended to read:
67-16-5.3
. Requiring donation, payment, or service to government agency in exchange for approval -- When prohibited.(1) It is an offense for a public officer, public employee, or legislator, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to demand from any person as a condition of granting any application or request for a permit, approval, or other authorization, that the person donate personal property, money, or services to any agency.
(2) (a) Subsection (1) does not apply to any donation of property, funds, or services to an agency that is:
(i) expressly required by statute, ordinance, or agency rule;
(ii) mutually agreed to between the applicant and the entity issuing the permit, approval, or other authorization;
(iii) made voluntarily by the applicant; or
(iv) a condition of a consent decree, settlement agreement, or other binding instrument entered into to resolve, in whole or in part, an actual or threatened agency enforcement action.
(b) If a person donates property, funds, or services to an agency, the agency shall, as part of the permit or other written authorization:
(i) identify that a donation has been made;
(ii) describe the donation;
(iii) certify, in writing, that the donation was voluntary; and
(iv) place that information in its files.
Section 2070. Section 67-16-6 is amended to read:
67-16-6
. Receiving compensation for assistance in transaction involving an agency -- Filing sworn statement.(1) It is an offense for a public officer or public employee, under circumstances not amounting to a violation of Section [63-56-1001] 63G-6-1001 or 76-8-105, to receive or agree to receive compensation for assisting any person or business entity in any transaction involving an agency unless the public officer or public employee files a sworn, written statement containing the information required by Subsection (2) with:
(a) the head of his own agency;
(b) the agency head of the agency with which the transaction is being conducted; and
(c) the state attorney general.
(2) The statement shall contain:
(a) the name and address of the public officer or public employee involved;
(b) the name of the public officer's or public employee's agency;
(c) the name and address of the person or business entity being or to be assisted; and
(d) a brief description of:
(i) the transaction as to which service is rendered or is to be rendered; and
(ii) the nature of the service performed or to be performed.
(3) The statement required to be filed under Subsection (1) shall be filed within ten days after the date of any agreement between the public officer or public employee and the person or business entity being assisted or the receipt of compensation, whichever is earlier.
(4) The statement is public information and shall be available for examination by the public.
Section 2071. Section 67-18-5 is amended to read:
67-18-5
. Confidential, private, or protected documents excepted.The right to examine and copy documents in an employee's personnel file is subject to access provisions in [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 2072. Section 67-19-5 is amended to read:
67-19-5
. Department of Human Resource Management created -- Executive director -- Compensation -- Staff.(1) There is created the Department of Human Resource Management.
(2) (a) The department shall be administered by an executive director appointed by the governor with the consent of the Senate.
(b) The executive director shall be a person with experience in human resource management and shall be accountable to the governor for the executive director's performance in office.
(3) The executive director may:
(a) appoint a personal secretary and a deputy director, both of whom shall be exempt from career service; and
(b) appoint division directors and program managers who may be career service exempt.
(4) (a) The executive director shall have full responsibility and accountability for the administration of the statewide human resource management system.
(b) Except as provided in Section 67-19-6.1, an agency may not perform human resource functions without the consent of the executive director.
(5) Statewide human resource management rules adopted by the Department of Human Resource Management in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall take precedence if there is a conflict with agency rules, policies, or practices.
(6) The department may operate as an internal service fund agency in accordance with Section [63-38-3.5] 63J-1-306 for the human resource functions the department provides.
Section 2073. Section 67-19-6 is amended to read:
67-19-6
. Responsibilities of the executive director.(1) The executive director shall:
(a) develop, implement, and administer a statewide program of human resource management that will:
(i) aid in the efficient execution of public policy;
(ii) foster careers in public service for qualified employees; and
(iii) render assistance to state agencies in performing their missions;
(b) design and administer the state pay plan;
(c) design and administer the state classification system and procedures for determining schedule assignments;
(d) design and administer the state recruitment and selection system;
(e) administer agency human resource practices and ensure compliance with federal law, state law, and state human resource rules, including equal employment opportunity;
(f) consult with agencies on decisions concerning employee corrective action and discipline;
(g) maintain central personnel records;
(h) perform those functions necessary to implement this chapter unless otherwise assigned or prohibited;
(i) perform duties assigned by the governor or statute;
(j) adopt rules for human resource management according to the procedures of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(k) establish and maintain a management information system that will furnish the governor, the Legislature, and agencies with current information on authorized positions, payroll, and related matters concerning state human resources;
(l) conduct research and planning activities to:
(i) determine and prepare for future state human resource needs;
(ii) develop methods for improving public human resource management; and
(iii) propose needed policy changes to the governor;
(m) study the character, causes, and extent of discrimination in state employment and develop plans for its elimination through programs consistent with federal and state laws governing equal employment opportunity in employment;
(n) when requested by counties, municipalities, and other political subdivisions of the state, provide technical service and advice on human resource management at a charge determined by the executive director;
(o) establish compensation policies and procedures for early voluntary retirement;
(p) confer with the heads of other agencies about human resource policies and procedures;
(q) submit an annual report to the governor and the Legislature; and
(r) (i) develop a procedure by which each agency will:
(A) identify funded vacant positions; and
(B) report those funded vacant positions to the department;
(ii) identify all funded employee positions in each agency that have been vacant for more than 180 consecutive days during the 18-month period prior to July 1 of each year; and
(iii) by no later than September 1 of each year, provide a report of all funded employee positions in each agency identified in Subsections (1)(r)(i) and (ii) to:
(A) the Governor's Office of Planning and Budget; and
(B) the Office of the Legislative Fiscal Analyst.
(2) (a) After consultation with the governor and the heads of other agencies, the executive director shall establish and coordinate statewide training programs.
(b) The programs developed under this Subsection (2) shall have application to more than one agency.
(c) The department may not establish training programs that train employees to perform highly specialized or technical jobs and tasks.
(3) (a) (i) The department may collect fees for training as authorized by this Subsection (3).
(ii) Training funded from General Fund appropriations shall be treated as a separate program within the department budget.
(iii) All money received from fees under this section will be accounted for by the department as a separate user driven training program.
(iv) The user training program includes the costs of developing, procuring, and presenting training and development programs, and other associated costs for these programs.
(b) (i) Funds remaining at the end of the fiscal year in the user training program are nonlapsing.
(ii) Each year, as part of the appropriations process, the Legislature shall review the amount of nonlapsing funds remaining at the end of the fiscal year and may, by statute, require the department to lapse a portion of the funds.
Section 2074. Section 67-19-6.7 is amended to read:
67-19-6.7
. Overtime policies for state employees.(1) As used in this section:
(a) "Accrued overtime hours" means:
(i) for nonexempt employees, overtime hours earned during a fiscal year that, at the end of the fiscal year, have not been paid and have not been taken as time off by the nonexempt state employee who accrued them; and
(ii) for exempt employees, overtime hours earned during an overtime year.
(b) "Appointed official" means:
(i) each department executive director and deputy director, each division director, and each member of a board or commission; and
(ii) any other person employed by a department who is appointed by, or whose appointment is required by law to be approved by, the governor and who:
(A) is paid a salary by the state; and
(B) who exercises managerial, policy-making, or advisory responsibility.
(c) "Department" means the Department of Administrative Services, the Department of Corrections, the Department of Financial Institutions, the Department of Alcoholic Beverage Control, the Insurance Department, the Public Service Commission, the Labor Commission, the Department of Agriculture and Food, the Department of Human Services, the State Board of Education, the Department of Natural Resources, the Department of Technology Services, the Department of Transportation, the Department of Commerce, the Department of Workforce Services, the State Tax Commission, the Department of Community and Culture, the Department of Health, the National Guard, the Department of Environmental Quality, the Department of Public Safety, the Department of Human Resource Management, the Commission on Criminal and Juvenile Justice, all merit employees except attorneys in the Office of the Attorney General, merit employees in the Office of the State Treasurer, and merit employees in the Office of the State Auditor.
(d) "Elected official" means any person who is an employee of the state because he was elected by the registered voters of Utah to a position in state government.
(e) "Exempt employee" means a state employee who is exempt as defined by the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq.
(f) "FLSA" means the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq.
(g) "FLSA agreement" means the agreement authorized by the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq., by which a nonexempt employee elects the form of compensation he will receive for overtime.
(h) "Nonexempt employee" means a state employee who is nonexempt as defined by the Department of Human Resource Management applying FLSA requirements.
(i) "Overtime" means actual time worked in excess of the employee's defined work period.
(j) "Overtime year" means the year determined by a department under Subsection (4)(b) at the end of which an exempt employee's accrued overtime lapses.
(k) (i) "State employee" means every person employed by a department who is not an appointed official or an elected official.
(ii) "State employee" does not mean:
(A) certificated employees of the State Board of Education; and
(B) employees of the Department of Community and Culture or the Governor's Office of Economic Development, whose positions are designated as schedule AM exempt employees under Section 67-19-15.
(l) "Uniform annual date" means the date when an exempt employee's accrued overtime lapses.
(m) "Work period" means:
(i) for all nonexempt employees, except law enforcement and hospital employees, a consecutive seven day 24 hour work period of 40 hours;
(ii) for all exempt employees, a 14 day, 80 hour payroll cycle; and
(iii) for nonexempt law enforcement and hospital employees, the period established by each department by rule for those employees according to the requirements of the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq.
(2) Each department shall compensate each state employee who works overtime by complying with the requirements of this section.
(3) (a) Each department shall negotiate and obtain a signed FLSA agreement from each nonexempt employee.
(b) In the FLSA agreement, the nonexempt employee shall elect either to be compensated for overtime by:
(i) taking time off work at the rate of one and one-half hour off for each overtime hour worked; or
(ii) being paid for the overtime worked at the rate of one and one-half times the rate per hour that the state employee receives for nonovertime work.
(c) Any nonexempt employee who elects to take time off under this Subsection (3) shall be paid for any overtime worked in excess of the cap established by the Department of Human Resource Management.
(d) Before working any overtime, each nonexempt employee shall obtain authorization to work overtime from the employee's immediate supervisor.
(e) Each department shall:
(i) for employees who elect to be compensated with time off for overtime, allow overtime earned during a fiscal year to be accumulated; and
(ii) for employees who elect to be paid for overtime worked, pay them for overtime worked in the paycheck for the pay period in which the employee worked the overtime.
(f) If the department pays a nonexempt employee for overtime, the department shall charge that payment to the department's budget.
(g) At the end of each fiscal year, the Division of Finance shall total all the accrued overtime hours for nonexempt employees and charge that total against the appropriate fund or subfund.
(4) (a) (i) Except as provided in Subsection (4)(a)(ii), each department shall compensate exempt employees who work overtime by granting them time off at the rate of one hour off for each hour of overtime worked.
(ii) The executive director of the Department of Human Resource Management may grant limited exceptions to this requirement, where work circumstances dictate, by authorizing a department to pay employees for overtime worked at the rate per hour that the employee receives for nonovertime work, if the department has funds available.
(b) (i) Each department shall:
(A) establish in its written human resource policies a uniform annual date for each division that is at the end of any pay period; and
(B) communicate the uniform annual date to its employees.
(ii) If any department fails to establish a uniform annual date as required by this Subsection (4), the executive director of the Department of Human Resource Management, in conjunction with the director of the Division of Finance, shall establish the date for that department.
(c) (i) Any overtime earned under this Subsection (4) is not an entitlement, is not a benefit, and is not a vested right.
(ii) A court may not construe the overtime for exempt employees authorized by this Subsection (4) as an entitlement, a benefit, or as a vested right.
(d) At the end of the overtime year, upon transfer to another department at any time, and upon termination, retirement, or other situations where the employee will not return to work before the end of the overtime year:
(i) any of an exempt employee's overtime that is more than the maximum established by the Department of Human Resource Management rule lapses; and
(ii) unless authorized by the executive director of the Department of Human Resource Management under Subsection (4)(a)(ii), a department may not compensate the exempt employee for that lapsed overtime by paying the employee for the overtime or by granting the employee time off for the lapsed overtime.
(e) Before working any overtime, each exempt employee shall obtain authorization to work overtime from the exempt employee's immediate supervisor.
(f) If the department pays an exempt employee for overtime under authorization from the executive director of the Department of Human Resource Management, the department shall charge that payment to the department's budget in the pay period earned.
(5) The Department of Human Resource Management shall:
(a) ensure that the provisions of the FLSA and this section are implemented throughout state government;
(b) determine, for each state employee, whether that employee is exempt, nonexempt, law enforcement, or has some other status under the FLSA;
(c) in coordination with modifications to the systems operated by the Division of Finance, make rules:
(i) establishing procedures for recording overtime worked that comply with FLSA requirements;
(ii) establishing requirements governing overtime worked while traveling and procedures for recording that overtime that comply with FLSA requirements;
(iii) establishing requirements governing overtime worked if the employee is "on call" and procedures for recording that overtime that comply with FLSA requirements;
(iv) establishing requirements governing overtime worked while an employee is being trained and procedures for recording that overtime that comply with FLSA requirements;
(v) subject to the FLSA, establishing the maximum number of hours that a nonexempt employee may accrue before a department is required to pay the employee for the overtime worked;
(vi) subject to the FLSA, establishing the maximum number of overtime hours for an exempt employee that do not lapse; and
(vii) establishing procedures for adjudicating appeals of any FLSA determinations made by the Department of Human Resource Management as required by this section;
(d) monitor departments for compliance with the FLSA; and
(e) recommend to the Legislature and the governor any statutory changes necessary because of federal government action.
(6) In coordination with the procedures for recording overtime worked established in rule by the Department of Human Resource Management, the Division of Finance shall modify its payroll and human resource systems to accommodate those procedures.
(a) Notwithstanding the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, Section 67-19-31, and Section 67-19a-301, any employee who is aggrieved by the FLSA designation made by the Department of Human Resource Management as required by this section may appeal that determination to the executive director of the Department of Human Resource Management by following the procedures and requirements established in Department of Human Resource Management rule.
(b) Upon receipt of an appeal under this section, the executive director shall notify the executive director of the employee's department that the appeal has been filed.
(c) If the employee is aggrieved by the decision of the executive director of the Department of Human Resource Management, he shall appeal that determination to the Department of Labor, Wage and Hour Division, according to the procedures and requirements of federal law.
Section 2075. Section 67-19-11 is amended to read:
67-19-11
. Use of department facilities -- Field office facilities cost allocation -- Funding for department.(1) (a) All officers and employees of the state and its political subdivisions shall allow the department to use public buildings under their control, and furnish heat, light, and furniture, for any examination, hearing, or investigation authorized by this chapter.
(b) The cost of the department's use of facilities shall be paid by the agency housing a field office staff.
(2) The executive director shall:
(a) prepare an annual budget request for the department;
(b) submit the budget request to the governor and the Legislature; and
(c) except for fiscal year 2007, before charging a fee for services provided by the department's internal service fund to an executive branch agency, the executive director shall:
(i) submit the proposed rates, fees, and cost analysis to the Rate Committee established under Subsection (3); and
(ii) obtain the approval of the Legislature as required under Section [63-38-3.5] 63J-1-306.
(3) (a) There is created a Rate Committee which shall consist of:
(i) the director of the Governor's Office of Planning and Budget, or a designee;
(ii) the executive directors of three state agencies that use services and pay rates to one of the department internal service funds, or their designee, appointed by the governor for a two-year term;
(iii) the director of the Division of Finance, or a designee; and
(iv) the executive director of the Department of Human Resource Management, or a designee.
(b) (i) The committee shall elect a chair from its members.
(ii) Members of the committee who are state government employees and who do not receive salary, per diem, or expenses from their agency for their service on the committee shall receive no compensation, benefits, per diem, or expenses for the members' service on the committee.
(c) The Department of Human Resource Management shall provide staff services to the committee.
(4) (a) The department shall submit to the committee a proposed rate and fee schedule for services rendered.
(b) The committee shall:
(i) conduct meetings in accordance with Title 52, Chapter 4, Open and Public Meetings Act;
(ii) review the proposed rate and fee schedules and may approve, increase, or decrease the rate and fee;
(iii) recommend a proposed rate and fee schedule for the internal service fund to:
(A) the Governor's Office of Planning and Budget; and
(B) the legislative appropriations subcommittees that, in accordance with Section [63-38-3.5] 63J-1-306, approve the internal service fund rates, fees, and budget; and
(iv) review and approve, increase or decrease an interim rate, fee, or amount when the department begins a new service or introduces a new product between annual general sessions of the Legislature.
(c) The committee may in accordance with Subsection [63-38-3.5] 63J-1-306(4) decrease a rate, fee, or amount that has been approved by the Legislature.
Section 2076. Section 67-19-12.5 is amended to read:
67-19-12.5
. Creation of Flexible Benefit Program -- Rulemaking power granted to establish program.(1) The department shall establish for calendar year 1990 and thereafter a Flexible Benefit Program under Section 125 of the Internal Revenue Code of 1986.
(2) The department shall establish accounts for all employees eligible for benefits which meet the nondiscrimination requirements of the Internal Revenue Code of 1986.
(3) (a) Each account established under this section shall include employee paid premiums for health and dental services.
(b) The account may also include, at the option of the employee, out-of-pocket employee medical and dependent care expenses.
(c) Accounts may also include other expenses allowed under the Internal Revenue Code of 1986.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules to implement the program established under this section.
Section 2077. Section 67-19-14 is amended to read:
67-19-14
. Sick leave -- Definitions -- Unused sick days retirement programs -- Rulemaking.(1) As used in Sections 67-19-14 through 67-19-14.4:
(a) "Continuing medical and life insurance benefits" means the state provided policy of medical insurance and the state provided portion of a policy of life insurance, each offered at the same:
(i) benefit level and the same proportion of state/member participation in the total premium costs as an active member as defined in Section 49-11-102; and
(ii) coverage level for a member, two person, or family policy as provided to the member at the time of retirement.
(b) "Converted sick leave" means leave that has been converted from unused sick leave in accordance with Section 67-19-14.1 which may be used by an employee in the same manner as:
(i) annual leave;
(ii) sick leave; or
(iii) unused accumulated sick leave after the employee's retirement for the purchase of continuing medical and life insurance benefits under Sections 67-19-14.2, 67-19-14.3, and 67-19-14.4.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the executive director shall make rules for the procedures to implement the provisions of Sections 67-19-14 through 67-19-14.4.
(3) For purposes of Sections 67-19-14 through 67-19-14.4 the most recently earned converted sick leave or sick leave hours shall be used first when an employee uses converted sick leave or sick leave hours.
(4) The Division of Finance shall develop and maintain a system of accounting for employee sick leave and converted sick leave as necessary to implement the provisions of Sections 67-19-14 through 67-19-14.4.
Section 2078. Section 67-19-30 is amended to read:
67-19-30
. Grievance resolution -- Jurisdiction.(1) Employees shall comply with the procedural and jurisdictional requirements of this section, [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Title 67, Chapter 19a, Grievance and Appeal Procedures, in seeking resolution of grievances.
(2) All grievances based upon a claim or charge of injustice or oppression, including dismissal from employment, resulting from an act, occurrence, commission, or condition shall be governed by Title 67, Chapter 19a, Grievance and Appeal Procedures, and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) All grievances involving classification shall be governed by Section 67-19-31 and are designated as informal adjudicative proceedings as defined by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) All grievances by applicants for positions in state government involving an alleged discriminatory or prohibited employment practice shall be governed by Section 67-19-32 and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(5) A "grievance" under this chapter is a request for agency action for purposes of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 2079. Section 67-19-31 is amended to read:
67-19-31
. Position classification grievances -- Scope -- Procedure.(1) (a) For the purpose of position classification grievances, the process that culminates in assigning a career service position to an appropriate class specification is a matter of position classification and may be grieved.
(b) The process that culminates in assigning a salary range to the class specification is not a position classification and may not be grieved as a classification grievance.
(2) (a) Upon receipt of a position classification grievance, the executive director shall refer the grievance to a classification panel of three or more impartial persons trained in state classification procedures.
(b) The classification panel shall determine whether or not the classification assignment for career service positions was appropriate by applying the statutes, rules, and procedures adopted by the department that were in effect at the time of the classification change.
(c) The classification panel may:
(i) obtain access to previous audits, classification decisions, and reports;
(ii) request new or additional audits by human resource analysts; and
(iii) consider new or additional information.
(d) The classification panel may sustain or modify the original decision and, if applicable, recommend a new classification.
(e) The classification panel shall report its recommendation to the executive director, who shall make the classification decision and notify the grievant.
(3) (a) Either party may appeal the executive director's decision to an impartial hearing officer trained in state classification procedures selected through a public bid process by a panel consisting of the following members:
(i) the executive director of the Department of Human Resource Management;
(ii) two department executive directors;
(iii) a private sector human resources executive appointed by the governor; and
(iv) a representative of the Utah Public Employees Association.
(b) The successful bid shall serve under contract for no more than three years. At the end of that time, the Department of Human Resource Management shall reissue the bid.
(c) The hearing officer shall review the classification and make the final decision. The final decision is subject to judicial review pursuant to the provisions of Section [63-46b-15] 63G-4-402.
Section 2080. Section 67-19-34 is amended to read:
67-19-34
. Rulemaking power to executive director.In accordance with this chapter and [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the executive director shall make rules regulating:
(1) disciplinary actions for employees subject to discipline under Section 67-19-37;
(2) the testing of employees for the use of controlled substances or alcohol as provided in Section 67-19-36;
(3) the confidentiality of drug testing and test results performed under Section 67-19-36 in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act; and
(4) minimum blood levels of alcohol or drug content for work effectiveness of an employee.
Section 2081. Section 67-19a-202 is amended to read:
67-19a-202
. Powers -- Jurisdiction.(1) (a) The board shall serve as the final administrative body to review appeals from career service employees and agencies of decisions about promotions, dismissals, demotions, suspensions, written reprimands, wages, salary, violations of personnel rules, issues concerning the equitable administration of benefits, reductions in force, and disputes concerning abandonment of position that have not been resolved at an earlier stage in the grievance procedure.
(b) The board has no jurisdiction to review or decide any other personnel matters.
(2) The time limits established in this chapter supersede the procedural time limits established in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) In conjunction with any inquiry, investigation, hearing, or other proceeding, any member of the board may:
(a) administer oaths;
(b) certify official acts;
(c) subpoena witnesses, documents, and other evidence; and
(d) grant continuances pursuant to board rule.
Section 2082. Section 67-19a-203 is amended to read:
67-19a-203
. Rulemaking authority.The board may make rules governing:
(1) definitions of terms, phrases, and words used in the grievance process established by this chapter;
(2) what matters constitute excusable neglect for purposes of the waiver of time limits established by this chapter;
(3) the application for and service of subpoenas, the service and filing of pleadings, and the issuance of rulings, orders, determinations, summary judgments, transcripts, and other legal documents necessary in grievance proceedings;
(4) the use, calling, attendance, participation, and fees of witnesses in grievance proceedings;
(5) continuances of grievance proceedings;
(6) procedures in jurisdictional and evidentiary hearings, unless governed by [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act;
(7) the presence of media representatives at grievance proceedings; and
(8) procedures for sealing files or making data pertaining to a grievance unavailable to the public.
Section 2083. Section 69-2-5.6 is amended to read:
69-2-5.6
. Emergency services telephone charge to fund statewide unified E-911 emergency service.(1) Subject to Subsection 69-2-5(3)(g), there is imposed a statewide unified E-911 emergency service charge on each local exchange service switched access line and each revenue producing radio communications access line that is subject to an emergency services telephone charge levied by a county, city, or town under Section 69-2-5 or 69-2-5.5 at:
(a) 13 cents per month until June 30, 2007; and
(b) 8 cents per month on and after July 1, 2007.
(2) The emergency services telephone charge imposed under this section shall be:
(a) subject to Subsection 69-2-5(3)(g);
(b) billed and collected by the person that provides:
(i) local exchange service switched access line services;
(ii) radio communications access line services; or
(iii) service described in Subsection 69-2-5(3)(a)(iii).
(c) except for costs retained under Subsection (3), remitted to the State Tax Commission at the same time as the person remits to the State Tax Commission monies collected by the person under Title 59, Chapter 12, Sales and Use Tax Act; and
(d) deposited into the Statewide Unified E-911 Emergency Service Fund restricted account in the General Fund created by Section 53-10-603.
(3) The person that bills and collects the charges levied by this section pursuant to Subsections (2)(b) and (c) may:
(a) bill the charge imposed by this section in combination with the charge levied under Section 69-2-5 as one line item charge; and
(b) retain an amount not to exceed 1.5% of the charges collected under this section as reimbursement for the cost of billing, collecting, and remitting the levy.
(4) The State Tax Commission shall collect, enforce, and administer the charges imposed under Subsection (1) using the same procedures used in the administration, collection, and enforcement of the emergency services telephone charge to fund the Poison Control Center under Section 69-2-5.5.
(5) This section sunsets in accordance with Section [63-55-269] 63I-1-269.
Section 2084. Section 70-3a-201 is amended to read:
70-3a-201
. Rulemaking authority of division.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may by rule:
(1) pursuant to Subsection 70-3a-302(1), establish the filing requirements for an application for a registration of a mark;
(2) pursuant to Subsection 70-3a-303(2), establish what information in addition to the information contained in the application shall be submitted by an applicant for registration under Section 70-3a-302;
(3) pursuant to Subsection 70-3a-303(3), establish the requirements for an applicant or registrant to disclaim an unregistrable component of a mark that is otherwise registrable;
(4) pursuant to Section 70-3a-305, establish the filing requirements for an application to renew a registration of a mark; and
(5) establish the filing requirements for a filing under Section 70-3a-306.
Section 2085. Section 70-3a-203 is amended to read:
70-3a-203
. Fees.(1) (a) A regulatory fee, as defined in Section [63-38-3.2] 63J-1-303, shall be determined by the division in accordance with Section [63-38-3.2] 63J-1-303, but may not exceed $250 annually for registration of an electronic registration mark in a single class.
(b) A person who pays the annual regulatory fee for the registration of an electronic registration mark may register additional classes for the same mark for an additional fee not to exceed $25 annually.
(2) (a) For a fee authorized by this chapter that is not a regulatory fee, the division may adopt a schedule of fees provided that each fee in the schedule of fees is:
(i) reasonable and fair; and
(ii) submitted to the Legislature as part of the Department of Commerce's annual appropriations request.
(b) When a fee schedule described in Subsection (2)(a) is submitted as part of the annual appropriations request, the Legislature, in a manner substantially similar to Section [63-38-3.2] 63J-1-303, may for any fee in the fee schedule:
(i) approve the fee;
(ii) (A) increase or decrease the fee; and
(B) approve the fee as changed by the Legislature; or
(iii) reject the fee.
(c) A fee approved by the Legislature pursuant to this section shall be deposited in a restricted account within the General Fund known as the Commerce Service Fund.
Section 2086. Section 70-3a-303 is amended to read:
70-3a-303
. Filing of applications.(1) The division may examine an application to determine whether the application conforms with this chapter if:
(a) the application for registration is filed under Section 70-3a-302; and
(b) the regulatory fee required by Section 70-3a-203 is paid.
(2) If reasonably requested by the division or considered by the applicant to be advisable to respond to any rejection or objection, the applicant:
(a) shall provide any additional information requested by rule by the division, including a description of a design mark; and
(b) may make, or authorize the division to make, amendments to the application.
(3) (a) The division may require the applicant to disclaim an unregistrable component of a mark otherwise registrable.
(b) An applicant may voluntarily disclaim a component of a mark for which the applicant has filed a registration application.
(c) A disclaimer under this Subsection (3) may not prejudice or affect the applicant's or registrant's rights:
(i) in the disclaimed matter:
(A) existing at the time of the disclaimer; or
(B) arising after the disclaimer; or
(ii) of registration on another application if the disclaimed matter is or has become distinctive of the applicant's or registrant's goods or services.
(d) The division may make rules consistent with this Subsection (3) to establish the requirements for an applicant to disclaim an unregistrable component of a mark that is otherwise registrable.
(4) The division may:
(a) amend an application filed by the applicant if the applicant agrees in writing to the amendment; or
(b) require the applicant to file a new application.
(5) (a) If the division determines that the applicant is not qualified to register a mark, the division shall notify the applicant of:
(i) the refusal; and
(ii) the reasons for the refusal.
(b) The applicant shall have a reasonable period of time specified by the division, but not more than 60 days from the date of the notice under this Subsection (5) to:
(i) reply to the refusal; or
(ii) amend the application for reexamination.
(c) The procedure described in Subsections (5)(a) and (b) may be repeated until:
(i) the division finally refuses registration of the mark; or
(ii) the applicant fails to reply or amend within the time period specified under Subsection (5)(b).
(d) If the applicant fails to reply or to amend within the time period specified under Subsection (5)(b), the application is considered abandoned.
(6) If the division finally refuses registration of the mark, the refusal shall:
(a) be in writing; and
(b) notify the applicant of the applicant's right to a review of the agency action in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(7) (a) An applicant may file an action to compel registration by obtaining judicial review of the final agency action in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) The division is not liable for damages in an action to compel registration.
(c) An action to compel registration shall only be granted on proof that:
(i) all the statements in the application for registration are true; and
(ii) the mark is otherwise entitled to registration.
(8) (a) If more than one application is concurrently being processed by the division seeking registration of the same or confusingly similar marks for the same or related goods or services, the division shall grant priority to the applications in order of filing.
(b) If a prior-filed application is granted a registration, the division shall refuse an application filed after the prior-filed application.
(c) An applicant refused under this Subsection (8) may bring an action for cancellation of the registration upon grounds of prior or superior rights to the mark.
Section 2087. Section 70A-9a-526 is amended to read:
70A-9a-526
. Filing-office rules.(1) The Division of Corporations and Commercial Code shall adopt and publish rules to implement this chapter that apply to a filing office described in Subsection 70A-9a-501(1)(b). The filing-office rules must be:
(a) consistent with this chapter; and
(b) adopted and published in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) To keep the filing-office rules and practices of the filing office in harmony with the rules and practices of filing offices in other jurisdictions that enact substantially this part, and to keep the technology used by the filing office compatible with the technology used by filing offices in other jurisdictions that enact substantially this part, the Division of Corporations and Commercial Code, so far as is consistent with the purposes, policies, and provisions of this chapter, in adopting, amending, and repealing filing-office rules, shall:
(a) consult with filing offices in other jurisdictions that enact substantially this part;
(b) consult the most recent version of the Model Rules promulgated by the International Association of Corporate Administrators or any successor organization; and
(c) take into consideration the rules and practices of, and the technology used by, filing offices in other jurisdictions that enact substantially this part.
Section 2088. Section 70C-8-104 is amended to read:
70C-8-104
. Enforcement proceedings.(1) (a) The department may take an action described in Subsection (1)(b) if the department determines that any party engaging in activities subject to this title is violating or has violated or the department has reasonable cause to believe is about to violate:
(i) any applicable provision of this title;
(ii) any rule or order under this title;
(iii) any condition imposed in writing in connection with the granting of any application or other request by the party; or
(iv) any federal statute or regulation pertaining to consumer credit in effect at the time of the determination described in Subsection (1)(a).
(b) If the department makes a determination described in Subsection (1)(a), the department may:
(i) order the party to cease and desist from committing any further violations; and
(ii) in the most serious instances, prohibit a party from making further extensions of credit to consumers.
(c) The department shall by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and consistent with this chapter, designate which one or more federal statutes or regulations are federal statutes or regulations pertaining to consumer credit for purposes of this Subsection (1).
(2) The department shall afford an opportunity for hearing upon request of any party described in Subsection (1)(a) if the request is filed with the department within 30 days after the party requesting the hearing first receives notice of the allegations.
(3) (a) If the department determines that a practice that it has alleged is unlawful should be enjoined during the pendency of any proceedings incident to that allegation, the department may issue a temporary order:
(i) at the commencement of the proceedings; or
(ii) at any time after commencement of the proceeding.
(b) The temporary order described in this Subsection (3) is fully binding on the party to whom the temporary order is directed until:
(i) the proceedings are concluded; or
(ii) the temporary order is modified or dissolved by the department.
(c) Any party to whom a temporary order is directed may request a hearing concerning the order, which shall be held:
(i) at the earliest mutually convenient time, but in no event more than ten days, after the party's request is received by the department; or
(ii) at any other time the parties may mutually agree upon.
(d) Every temporary order shall include findings and conclusions in support of the order.
(e) A temporary order may not be issued unless the department finds from specific facts supported by sworn statement or the records of a party subject to the order that consumers are otherwise likely to suffer immediate and irreparable injury, loss, or damage before proceedings, incident to a final order, can be completed.
(4) The department may not award damages or penalties against a creditor.
(5) (a) Any order issued by the department under authority of this title shall:
(i) be in writing;
(ii) be delivered to or served upon the party affected; and
(iii) specify its effective date, which may be immediate or at a later date.
(b) An order described in Subsection (5)(a) shall remain in effect until:
(i) withdrawn by the department; or
(ii) terminated by a court order.
(c) (i) An order of the department, upon application made on or after the effective date of the order by the department to a court of general jurisdiction in the county in which an office or the residence of the party is located, may be enforced ex parte and without notice by an order to comply entered by the court.
(ii) If the proceeding involves more than one party and each of the parties do not have an office or residence in one county, the department may file its application in any county of this state where one of the parties has an office or residence.
(iii) If no party to the proceeding has an office or residence in the state, the department's application shall be filed in the Third District Court.
Section 2089. Section 70D-1-14 is amended to read:
70D-1-14
. Enforcement by department -- Rulemaking -- Federal loan.(1) The department has the power, within the limitations provided by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, to:
(a) (i) receive and act on complaints;
(ii) take action designed to obtain voluntary compliance with this chapter; or
(iii) commence proceedings on its own initiative to enforce compliance with this chapter;
(b) counsel persons and groups on their rights and duties under this chapter;
(c) adopt, amend, and repeal rules to:
(i) restrict or prohibit lending or servicing practices which are misleading, unfair, or abusive;
(ii) promote or assure fair and full disclosure of the terms and conditions of agreements and communications between mortgage lenders or servicers and borrowers; or
(iii) promote or assure uniform application of or to resolve ambiguities in applicable state or federal laws or federal regulations; and
(d) employ hearing examiners, clerks, and other employees and agents as necessary to perform its duties under this chapter.
(2) A rule or any part of a rule adopted by the department pursuant to this chapter may not be determined by any judicial or other authority to be invalid in whole or in part unless the judicial or other authority expressly finds that the rule or a part of it:
(a) is arbitrary, capricious, constitutes an abuse of discretion;
(b) exceeds the authority granted to the department by this chapter; or
(c) is otherwise unlawful.
(3) (a) A person subject to this chapter violates this chapter if the person violates a federal law:
(i) that is applicable to the person because of the activities that make the person subject to this chapter; and
(ii) pursuant to the terms of the federal law in effect on the day the person violates the federal law.
(b) The department shall by rule, made in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and consistent with this chapter, designate which one or more federal laws are applicable to a person described in Subsection (3)(a).
(c) (i) Notwithstanding the other provisions of this chapter, only the department may enforce or bring an action under this chapter for a violation described in this Subsection (3).
(ii) The department may bring an action under this Subsection (3) in state court.
Section 2090. Section 70D-1-16 is amended to read:
70D-1-16
. Department orders.(1) If the department determines that any person engaging in business as a mortgage lender, broker, or servicer is violating, has violated, or the department has reasonable cause to believe is about to violate any provision of this chapter or any rule of the department made under this chapter, the department may order the person to cease and desist from committing any further violations, and in the most serious instances may prohibit the person from continuing to engage in business as a mortgage lender, broker, or servicer.
(2) The department shall afford an opportunity for hearing upon request of any person alleged to have violated this chapter if the request is filed with the department within 30 days after the person requesting the hearing first receives notice of the allegations.
(3) (a) If the department determines that a practice which it has alleged is unlawful should be enjoined during the pendency of any proceedings incident to that allegation, it may issue a temporary order at the commencement of the proceedings or at any time thereafter which is fully binding on the person to whom the temporary order is directed until the proceedings are concluded or the temporary order is modified or dissolved by the department.
(b) Any person to whom a temporary order is directed may request a hearing concerning the order, which shall be held at the earliest mutually convenient time, but in no event more that ten days after the person's request is received by the department unless the department and the person requesting the hearing mutually agree to a later time.
(c) Every temporary order shall include findings and conclusions in support of it.
(d) For purposes of Section [63-46b-20] 63G-4-502, an immediate and significant danger to the public health, safety, or welfare exists if the department finds from specific facts supported by sworn statement or the records of a person subject to the order that loan applicants or mortgagors are otherwise likely to suffer immediate and irreparable injury, loss, or damage before proceedings incident to a final order can be completed.
(4) The department may not award damages or penalties against a mortgage lender, broker, or servicer.
(5) (a) Any order issued by the department under authority of this chapter shall be in writing, be delivered to or served upon the person affected, and specify its effective date, which may be immediate or at a later date.
(b) Orders shall remain in effect until withdrawn by the department or until terminated by a court order. The order of the department, upon application made on or after its effective date to the Third District Court, or in any other district court, may be enforced ex parte and without notice by an order to comply entered by the court.
Section 2091. Section 70D-1-17 is amended to read:
70D-1-17
. Relief from department order.Any person aggrieved by any rule, order, temporary order, decision, ruling, or other act or failure to act by the department under this chapter is entitled to judicial review as provided under [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act.
Section 2092. Section 71-7-3 is amended to read:
71-7-3
. Development, operation, and maintenance of Utah Veterans' Cemetery and Memorial Park -- Responsibilities of Department of Veterans' Affairs -- Costs -- Definition.(1) The Department of Veterans' Affairs, in consultation with the Veterans' Memorial Park Board, shall develop, operate, and maintain a veterans' cemetery and memorial park.
(2) To help pay the costs of developing, constructing, operating, and maintaining a veterans' cemetery and memorial park, the Department of Veterans' Affairs may:
(a) by following the procedures and requirements of [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures, receive federal funds, and may receive state funds, contributions from veterans' organizations, and other private donations; and
(b) charge fees for at least the cost of the burial of veterans' spouses and other persons, whom the department and the Veterans' Memorial Park Board determines are eligible to be buried in a veterans' cemetery established by the state.
(3) As used in this chapter, "veteran" has the same meaning as in Section 71-8-1.
Section 2093. Section 71-8-2 is amended to read:
71-8-2
. Department of Veterans' Affairs created -- Appointment of executive director -- Department responsibilities.(1) There is created the Department of Veterans' Affairs.
(2) The governor shall appoint an executive director for the department, subject to Senate confirmation, from a list of qualified veterans provided by the Veterans' Advisory Council. Any veteran or veteran's group may submit names to the council for consideration.
(3) The department shall:
(a) conduct and supervise all veteran activities as provided in this title; and
(b) adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to carry out the provisions of this title.
Section 2094. Section 71-11-5 is amended to read:
71-11-5
. Operation of homes -- Rulemaking authority -- Selection of administrator.(1) The department shall, subject to the approval of the executive director:
(a) establish appropriate criteria for the admission and discharge of residents for each home, subject to the requirements in Section 71-11-6 and criteria set by the U.S. Department of Veterans' Affairs;
(b) establish a schedule of charges for each home in cases where residents have available resources;
(c) establish standards for the operation of the homes not inconsistent with standards set by the United States Department of Veterans Affairs;
(d) make rules to implement this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
(e) ensure that the homes are licensed in accordance with Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, and 38 U.S.C. Sec. 1742(a).
(2) The department shall, after reviewing recommendations of the board, appoint an administrator for each home.
Section 2095. Section 72-1-201 is amended to read:
72-1-201
. Creation of Department of Transportation -- Functions, powers, duties, rights, and responsibilities.There is created the Department of Transportation which shall:
(1) have the general responsibility for planning, research, design, construction, maintenance, security, and safety of state transportation systems;
(2) provide administration for state transportation systems and programs;
(3) implement the transportation policies of the state;
(4) plan, develop, construct, and maintain state transportation systems that are safe, reliable, environmentally sensitive, and serve the needs of the traveling public, commerce, and industry;
(5) establish standards and procedures regarding the technical details of administration of the state transportation systems as established by statute and administrative rule;
(6) advise the governor and the Legislature about state transportation systems needs;
(7) coordinate with utility companies for the reasonable, efficient, and cost-effective installation, maintenance, operation, relocation, and upgrade of utilities within state highway rights-of-way; and
(8) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make policy and rules for the administration of the department, state transportation systems, and programs.
Section 2096. Section 72-1-211 is amended to read:
72-1-211
. Department to develop strategic initiatives -- Report -- Rulemaking.(1) The executive director shall develop strategic initiatives for the department.
(2) The strategic initiatives developed under Subsection (1) shall include consideration of the following factors:
(a) corridor preservation;
(b) development of new transportation capacity projects;
(c) long-term maintenance and operations of the transportation system;
(d) safety;
(e) incident management; and
(f) homeland security.
(3) (a) The executive director or the executive director's designee shall report the strategic initiatives of the department developed under Subsection (1) to the Transportation Commission.
(b) The report required under Subsection (3)(a) shall include the measure that will be used to determine whether the strategic initiatives have been achieved.
(4) After compliance with Subsection (3) and in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules establishing the strategic initiatives developed under this part.
Section 2097. Section 72-1-303 is amended to read:
72-1-303
. Duties of commission.The commission has the following duties:
(1) determining priorities and funding levels of projects in the state transportation systems for each fiscal year based on project lists compiled by the department;
(2) determining additions and deletions to state highways under Chapter 4, Designation of State Highways Act;
(3) holding public hearings and otherwise providing for public input in transportation matters;
(4) making policies and rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to perform the commission's duties described under this section;
(5) in accordance with Section [63-46b-12] 63G-4-301, reviewing orders issued by the executive director in adjudicative proceedings held in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act;
(6) advising the department in state transportation systems policy;
(7) approving settlement agreements of condemnation cases subject to Section [63-38b-401] 63G-10-401;
(8) in accordance with Section 17B-2a-807, appointing a commissioner to serve as a nonvoting, ex officio member on the board of trustees of a public transit district;
(9) in accordance with Section 17B-2a-808, reviewing, at least annually, the short-term and long-range public transit plans; and
(10) reviewing administrative rules made, amended, or repealed by the department.
Section 2098. Section 72-1-304 is amended to read:
72-1-304
. Written project prioritization process for new transportation capacity projects -- Rulemaking.(1) The Transportation Commission, in consultation with the department and the metropolitan planning organizations as defined in Section 72-1-208.5, shall develop a written prioritization process for the prioritization of new transportation capacity projects that are or will be part of the state highway system under Chapter 4, Part 1, State Highways.
(2) The following shall be included in the written prioritization process under Subsection (1):
(a) a description of how the strategic initiatives of the department adopted under Section 72-1-211 are advanced by the written prioritization process;
(b) a definition of the type of projects to which the written prioritization process applies;
(c) specification of a weighted criteria system that is used to rank proposed projects and how it will be used to determine which projects will be prioritized;
(d) specification of the data that is necessary to apply the weighted ranking criteria; and
(e) any other provisions the commission considers appropriate.
(3) In developing the written prioritization process, the commission:
(a) shall seek and consider public comment by holding public meetings at locations throughout the state; and
(b) may not consider local matching dollars as provided under Section 72-2-123 unless the state provides an equal opportunity to raise local matching dollars for state highway improvements within each county.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Transportation Commission, in consultation with the department, shall make rules establishing the written prioritization process under Subsection (1).
(5) The commission shall submit the proposed rules under this section to a committee or task force designated by the Legislative Management Committee for review prior to taking final action on the proposed rules or any proposed amendment to the rules described in Subsection (4).
Section 2099. Section 72-2-109 is amended to read:
72-2-109
. Rules for uniform accounting -- Apportionment and use of class B and class C road funds -- Compliance with federal-aid provisions -- Duties of department.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules providing for uniform accounting of funds to be expended upon class B and C roads as required by the federal government under Title 23, United States Code Annotated, relating to federal aid for highway purposes together with all amendatory acts.
(2) The department shall cooperate with the county governing bodies and the governing officials of the cities and towns in the apportionment and use of class B and C road funds.
Section 2100. Section 72-2-111 is amended to read:
72-2-111
. Assent to federal acts on federal aid for highway purposes -- Department to represent state -- Pledge of funds -- Rulemaking authority -- Contracts for energy conservation.(1) (a) The Legislature assents to all the provisions of Title 23, Highways, U.S.C., relating to federal aid for highway purposes, and all amendatory acts.
(b) The department may:
(i) enter into a contract or agreement with the United States government relating to the survey, construction, and maintenance of highways under a federal act;
(ii) submit a scheme or program of construction and maintenance required by a federal agency; and
(iii) do any other thing necessary to fully carry out the cooperation contemplated and provided for by a federal act.
(c) The good faith of the state is pledged to make available sufficient funds to match the sums apportioned to the state by the United States government:
(i) for the construction of federal-aid highways; and
(ii) to provide adequate maintenance for federal-aid highways.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules to encourage car pools and van pools in order to save energy.
(3) The department may contract with individuals, associations, or corporations to accomplish energy conservation and encouragement of car and van pooling.
Section 2101. Section 72-2-113 is amended to read:
72-2-113
. Rulemaking for cost limitations on contracts -- Auditing for compliance -- Federal accounting and audit standards.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules for determining the allowability of costs included in contracts entered into by the department for engineering and design services. The rules shall comply with the provisions of 23 U.S.C. Section 112.
(2) The department may require a provider of engineering or design services to submit annual audits or to submit to audits to determine compliance with the rules made under Subsection (1). The audits may not be duplicative of federal audits under the Federal Acquisition Regulations System, 48 C.F.R. Part 31.
(3) All engineering and design contracts and subcontracts entered into by the department shall be accounted for and audited in compliance with the Federal Acquisition Regulations System, 48 C.F.R. Part 31.
Section 2102. Section 72-2-117 is amended to read:
72-2-117
. Transportation Corridor Preservation Revolving Loan Fund -- Distribution -- Repayment -- Rulemaking.(1) There is created the Transportation Corridor Preservation Revolving Loan Fund within the Transportation Fund.
(2) The fund shall be funded from the following sources:
(a) motor vehicle rental tax imposed under Section 59-12-1201;
(b) appropriations made to the fund by the Legislature;
(c) contributions from other public and private sources for deposit into the fund;
(d) interest earnings on cash balances;
(e) all monies collected for repayments and interest on fund monies;
(f) all monies collected from rents and sales of real property acquired with fund monies; and
(g) proceeds from general obligation bonds, revenue bonds, or other obligations as authorized by Title 63B, Bonds.
(3) All monies appropriated to the Transportation Corridor Preservation Revolving Loan Fund are nonlapsing.
(4) (a) The commission shall authorize the expenditure of fund monies to allow the department to acquire real property or any interests in real property for state, county, and municipal transportation corridors subject to:
(i) monies available in the fund;
(ii) rules made under Subsection (7); and
(iii) Subsection (9).
(b) Fund monies may be used to pay interest on debts incurred in accordance with this section.
(5) Administrative costs for transportation corridor preservation shall be paid from the fund.
(6) The department:
(a) may apply to the commission under this section for monies from the Transportation Corridor Preservation Revolving Loan Fund for a specified transportation corridor project, including for county and municipal projects; and
(b) shall repay the fund monies authorized for the project to the fund as required under Subsection (7).
(7) The commission shall:
(a) administer the Transportation Corridor Preservation Revolving Loan Fund to:
(i) preserve transportation corridors;
(ii) promote long-term statewide transportation planning;
(iii) save on acquisition costs; and
(iv) promote the best interests of the state in a manner which minimizes impact on prime agricultural land;
(b) prioritize fund monies based on considerations, including:
(i) areas with rapidly expanding population;
(ii) the willingness of local governments to complete studies and impact statements that meet department standards;
(iii) the preservation of corridors by the use of local planning and zoning processes;
(iv) the availability of other public and private matching funds for a project; and
(v) the cost-effectiveness of the preservation projects;
(c) designate high priority corridor preservation projects in cooperation with a metropolitan planning organization;
(d) administer the program for the purposes provided in this section;
(e) prioritize fund monies in accordance with this section; and
(f) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing:
(i) the procedures for the awarding of fund monies;
(ii) the procedures for the department to apply for transportation corridor preservation monies for projects; and
(iii) repayment conditions of the monies to the fund from the specified project funds.
(8) (a) The proceeds from any bonds or other obligations secured by revenues of the Transportation Corridor Preservation Revolving Loan Fund shall be used for:
(i) the acquisition of real property in hardship cases; and
(ii) any of the purposes authorized for funds in the Transportation Corridor Preservation Revolving Loan Fund under this section.
(b) The commission shall pledge the necessary part of the revenues of the Transportation Corridor Preservation Revolving Loan Fund to the payment of principal of and interest on the bonds or other obligations.
(9) (a) The department may not apply for monies under this section unless the highway authority has an access management policy or ordinance in effect that meets the requirements under Subsection (9)(b).
(b) The access management policy or ordinance shall:
(i) be for the purpose of balancing the need for reasonable access to land uses with the need to preserve the smooth flow of traffic on the highway system in terms of safety, capacity, and speed; and
(ii) include provisions:
(A) limiting the number of conflict points at driveway locations;
(B) separating conflict areas;
(C) reducing the interference of through traffic;
(D) spacing at-grade signalized intersections; and
(E) providing for adequate on-site circulation and storage.
(c) The department shall develop a model access management policy or ordinance that meets the requirements of this Subsection (9) for the benefit of a county or municipality under this section.
(10) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules establishing a corridor preservation advisory council.
(b) The corridor preservation advisory council shall:
(i) assist with and help coordinate the corridor preservation efforts of the department and local governments;
(ii) provide recommendations and priorities concerning corridor preservation and the use of fund monies to the department and to the commission; and
(iii) include members designated by each metropolitan planning organization in the state to represent local governments that are involved with corridor preservation through official maps and planning.
Section 2103. Section 72-2-122 is amended to read:
72-2-122
. Aeronautics Construction Revolving Loan Fund -- Distribution -- Repayment -- Rulemaking.(1) There is created the Aeronautics Construction Revolving Loan Fund within the Transportation Fund.
(2) The fund shall include monies from the following sources:
(a) appropriations made to the fund by the Legislature;
(b) contributions from other public and private sources for deposit into the fund;
(c) interest earnings on cash balances;
(d) all monies collected for repayments and interest on fund monies; and
(e) proceeds from revenue bonds or other obligations issued in accordance with [Title 63, Chapter 9a, State Building Ownership Act] Title 63B, Chapter 1, Part 3, State Building Ownership Authority Act, and Title 63B, Bonds.
(3) All monies appropriated to the Aeronautics Construction Revolving Loan Fund are nonlapsing.
(4) (a) The commission shall authorize the expenditure of fund monies for construction, major reconstruction, major renovation, or property acquisition of airports and airport runways for state, county, and municipal airports subject to:
(i) monies available in the fund; and
(ii) rules made under Subsection (7).
(b) Fund monies may be used to pay interest on debts incurred in accordance with this section.
(5) Administrative costs of the Aeronautics Construction Revolving Loan Fund shall be paid from the fund.
(6) The Operations Division:
(a) may apply to the commission under this section for monies from the Aeronautics Construction Revolving Loan Fund for a specified aeronautics project, including for county and municipal projects; and
(b) shall repay the fund monies authorized for the project to the fund as required under Subsection (7).
(7) The commission shall:
(a) administer the Aeronautics Construction Revolving Loan Fund to promote long-term statewide aeronautics transportation;
(b) prioritize fund monies based on considerations, including:
(i) areas with rapidly expanding population;
(ii) the willingness of local governments to:
(A) complete studies and impact statements that meet department standards; and
(B) preserve long-term airport operations by the use of local planning and zoning processes;
(iii) the availability of other public and private matching funds for a project; and
(iv) the cost-effectiveness of the projects; and
(c) make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing:
(i) the procedures for the awarding of fund monies;
(ii) the procedures for the Operations Division to apply for Aeronautics Construction Revolving Loan Fund monies for projects; and
(iii) repayment schedules and conditions of replacing the monies back into the fund.
(8) For loans made under this section to a county or municipal airport, the Division of Finance shall:
(a) collect and account for a loan made in accordance with this section; and
(b) have custody of all loan documents evidencing indebtedness of the Aeronautics Construction Revolving Loan Fund, including all:
(i) notes; and
(ii) contracts.
(9) (a) The proceeds from the revenue bonds or other obligations issued on revenues of the Aeronautics Construction Revolving Loan Fund shall be used for the purposes authorized for funds under this section.
(b) The commission shall pledge the necessary part of the revenues of the Aeronautics Construction Revolving Loan Fund to the payment of principal of and interest on the revenue bonds or other obligations.
Section 2104. Section 72-2-123 is amended to read:
72-2-123
. Rules adopting guidelines -- Partnering to finance state highway capacity improvements -- Partnering proposals.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission, in consultation with representatives of local government, shall make rules adopting guidelines for partnering with counties and municipalities for their help to finance state highway improvement projects through:
(a) local matching dollars; or
(b) other local participation methods.
(2) The guidelines shall encourage partnering to help finance state highway improvement projects and provide for:
(a) consideration of factors relevant to a decision to make a program adjustment including the potential to:
(i) extend department resources to other needed projects;
(ii) alleviate significant existing or future congestion or hazards to the traveling public; and
(iii) address a need that is widely recognized by the public, elected officials, and transportation planners;
(b) a process for submitting, evaluating, and hearing partnering proposals; and
(c) keeping a public record of each proposal from initial submission to final disposition.
(3) The commission shall submit the proposed rules under this section to a committee or task force designated by the Legislative Management Committee for review prior to taking final action on the proposed rules or any proposed amendment to the rules.
Section 2105. Section 72-2-202 is amended to read:
72-2-202
. Transportation Infrastructure Loan Fund -- Creation -- Use of monies.(1) There is created a revolving loan fund entitled the Transportation Infrastructure Loan Fund.
(2) The fund consists of monies generated from the following revenue sources:
(a) appropriations made to the fund by the Legislature;
(b) federal monies and grants that are deposited in the fund;
(c) monies transferred to the fund by the commission from other monies available to the department;
(d) state grants that are deposited in the fund;
(e) contributions or grants from any other private or public sources for deposit into the fund; and
(f) all monies collected from repayments of fund monies used for infrastructure loans or infrastructure assistance.
(3) (a) The fund shall earn interest.
(b) All interest earned on fund monies shall be deposited into the fund.
(4) Monies in the fund shall be used by the department, as prioritized by the commission, only to:
(a) provide infrastructure loans or infrastructure assistance; and
(b) pay the department for the costs of administering the fund, providing infrastructure loans or infrastructure assistance, monitoring transportation projects, and obtaining repayments of infrastructure loans or infrastructure assistance.
(5) (a) The department may establish separate accounts in the fund for infrastructure loans, infrastructure assistance, administrative and operating expenses, or any other purpose to implement this part.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules governing how the fund and its accounts may be held by an escrow agent.
(6) Fund monies shall be invested by the state treasurer as provided in Title 51, Chapter 7, State Money Management Act, and the earnings from the investments shall be credited to the fund.
Section 2106. Section 72-2-203 is amended to read:
72-2-203
. Loans and assistance -- Authority -- Rulemaking.(1) Monies in the fund may be used by the department, as prioritized by the commission, to make infrastructure loans or to provide infrastructure assistance to any public entity for any purpose consistent with any applicable constitutional limitation.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules providing procedures and standards for making infrastructure loans and providing infrastructure assistance.
Section 2107. Section 72-2-204 is amended to read:
72-2-204
. Loan program procedures -- Repayment.(1) A public entity may obtain an infrastructure loan from the department, upon approval by the commission, by entering into a loan contract with the department secured by legally issued bonds, notes, or other evidence of indebtedness validly issued under state law, including pledging all or any portion of a revenue source to the repayment of the loan.
(2) The public entity shall repay the infrastructure loan in accordance with the loan contract from any of the following sources:
(a) transportation project revenues, including special assessment revenues;
(b) general funds of the public entity;
(c) monies withheld under Subsection (5); or
(d) any other legally available revenues.
(3) An infrastructure loan contract with a public entity may provide that a portion of the proceeds of the loan may be applied to fund a reserve fund to secure the repayment of the loan.
(4) Before obtaining an infrastructure loan, a county or municipality shall:
(a) publish its intention to obtain an infrastructure loan at least once in accordance with the publication of notice requirements under Section 11-14-316; and
(b) adopt an ordinance or resolution authorizing the infrastructure loan.
(5) (a) If a public entity fails to comply with the terms of its infrastructure loan contract, the department may seek any legal or equitable remedy to obtain compliance or payment of damages.
(b) If a public entity fails to make infrastructure loan payments when due, the state shall, at the request of the department, withhold an amount of monies due to the public entity and deposit the withheld monies in the fund to pay the amounts due under the contract.
(c) The department may elect when to request the withholding of monies under this Subsection (5).
(6) All loan contracts, bonds, notes, or other evidence of indebtedness securing the loan contracts shall be held, collected, and accounted for in accordance with Section [63-65-4] 63B-1b-202.
Section 2108. Section 72-3-109 is amended to read:
72-3-109
. Division of responsibility with respect to state highways in cities and towns.(1) Except as provided in Subsection (3), the jurisdiction and responsibility of the department and the municipalities for state highways within municipalities is as follows:
(a) The department has jurisdiction over and is responsible for the construction and maintenance of:
(i) the portion of the state highway located between the back of the curb on either side of the state highway; or
(ii) if there is no curb, the traveled way, its contiguous shoulders, and appurtenances.
(b) The department may widen or improve state highways within municipalities.
(c) (i) A municipality has jurisdiction over all other portions of the right-of-way and is responsible for construction and maintenance of the right-of-way.
(ii) If a municipality grants permission for the installation of any pole, pipeline, conduit, sewer, ditch, culvert, billboard, advertising sign, or any other structure or object of any kind or character within the portion of the right-of-way under its jurisdiction:
(A) the permission shall contain the condition that any installation will be removed from the right-of-way at the request of the municipality; and
(B) the municipality shall cause any installation to be removed at the request of the department when the department finds the removal necessary:
(I) to eliminate a hazard to traffic safety;
(II) for the construction and maintenance of the state highway; or
(III) to meet the requirements of federal regulations.
(d) If it is necessary that a utility, as defined in Section 72-6-116, be relocated, reimbursement shall be made for the relocation as provided for in Section 72-6-116.
(e) (i) The department shall construct curbs, gutters, and sidewalks on the state highways if necessary for the proper control of traffic, driveway entrances, or drainage.
(ii) If a state highway is widened or altered and existing curbs, gutters, or sidewalks are removed, the department shall replace the curbs, gutters, or sidewalks.
(f) The department may furnish and install street lighting systems for state highways, but their operation and maintenance is the responsibility of the municipality.
(g) If new storm sewer facilities are necessary in the construction and maintenance of the state highways, the cost of the storm sewer facilities shall be borne by the state and the municipality in a proportion mutually agreed upon between the department and the municipality.
(2) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules governing the location and construction of approach roads and driveways entering the state highway. The rules shall:
(i) include criteria for the design, location, and spacing of approach roads and driveways based on the functional classification of the adjacent highway, including the urban or rural nature of the area;
(ii) be consistent with the "Manual on Uniform Traffic Control Devices" and the model access management policy or ordinance developed by the department under Subsection 72-2-117(9);
(iii) include procedures for:
(A) the application and review of a permit for approach roads and driveways including review of related site plans that have been recommended according to local ordinances; and
(B) approving, modifying, denying, or appealing the modification or denial of a permit for approach roads and driveways within 45 days of receipt of the application; and
(iv) require written justifications for modifying or denying a permit.
(b) The department may delegate the administration of the rules to the highway authorities of a municipality.
(c) In accordance with this section and Section 72-7-104, an approach road or driveway may not be constructed on a state highway without a permit issued under this section.
(3) The department has jurisdiction and control over the entire right-of-way of interstate highways within municipalities and is responsible for the construction, maintenance, and regulation of the interstate highways within municipalities.
Section 2109. Section 72-3-207 is amended to read:
72-3-207
. State Park Access Highways Improvement Program -- Distribution -- Rulemaking.(1) There is created the State Park Access Highways Improvement Program within the department.
(2) The program shall be funded from the following revenue sources:
(a) any voluntary contributions received for improvements to state park access highways; and
(b) appropriations made to the program by the Legislature.
(3) The department may use the program monies as matching grants to a county or municipality for the improvement of class B or class C roads specified as state park access highways under this part subject to:
(a) monies available in the program;
(b) prioritization of the program monies by the commission;
(c) a county or municipality providing at least 50% of the cost of each improvement project in matching funds; and
(d) rules made under Subsection (4).
(4) The department shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, necessary to administer the program and to establish the procedures for a county or municipality to apply for a grant of program monies.
(5) All appropriations made to the program by the Legislature are nonlapsing.
(6) The department shall commit funds for state park access highway projects for the amount of funding currently programmed in a funded year in the 2007 Statewide Transportation Improvement Program.
Section 2110. Section 72-4-102 is amended to read:
72-4-102
. Additions to or deletions from state highway system -- Designation of highways as state highways between sessions.(1) (a) The Legislature may add to or delete highways or sections of highways from the state highway system.
(b) The department shall annually submit to the Legislature a list of highways or sections of highways the commission recommends for addition to or deletion from the state highway system.
(c) All recommendations under Subsection (1)(b) shall be based on:
(i) the criteria for state highways under Section 72-4-102.5;
(ii) funding and operational considerations identified under Subsection (3);
(iii) efficiency of highway operations and maintenance; and
(iv) other factors the commission determines are appropriate, in consultation with the department and the highway authorities involved in the transfer.
(2) Between general sessions of the Legislature, highways may be designated as state highways or deleted from the state highway system if:
(a) approved by the commission in accordance with:
(i) the criteria for state highways under Section 72-4-102.5;
(ii) funding and operational considerations identified under Subsection (3);
(iii) efficiency of highway operations and maintenance; and
(iv) other factors the commission determines are appropriate, in consultation with the department and the highway authorities involved in the transfer;
(b) a deletion is agreed upon by all highway authorities involved in the transfer; and
(c) the highways are included in the list of recommendations submitted to the Legislature in the next year for legislative approval or disapproval.
(3) All highway authorities involved in a highway transfer under this section shall consider available highway financing levels and operational abilities for the maintenance and construction of a transferred highway.
(4) (a) The department shall no later than June 30 report to the Transportation Interim Committee of the Legislature any proposed additions to or deletions from the state highway system whether proposed by the department or another highway authority.
(b) The commission shall submit to the Transportation Interim Committee of the Legislature on or before November 1 of each year:
(i) the list of highways recommended for transfer under Subsection (1);
(ii) a list of potential additions to or deletions from the state highway system that are currently under consideration; and
(iii) a list of additions to or deletions from the state highway system that were proposed but not agreed to by the affected highway authorities.
(c) The recommendations shall include:
(i) any fiscal and funding recommendations of each highway authority involved in the transfer of a highway or section of a highway; and
(ii) a cost estimate, fiscal analysis, and funding recommendation, or recommendation for further study from the Office of the Legislative Fiscal Analyst.
(5) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall make rules, in consultation with the department and local highway authorities, establishing a process for a highway authority to propose an addition to or deletion from the state highway system.
(b) The rules established under Subsection (5)(a) shall include provisions for:
(i) notification to highway authorities of the department's intent to:
(A) collect proposed additions to or deletions from the state highway system; and
(B) report the proposals to the Transportation Interim Committee as required under Subsection (4)(a);
(ii) public comment regarding a proposed addition to or deletion from the state highway system under this section during a commission meeting held under Section 72-1-302;
(iii) notification to any affected highway authority of an addition to or deletion from the state highway system under consideration prior to the meeting held under Subsection (5)(b)(ii); and
(iv) opportunity for a highway authority to initiate consideration of additions to or deletions from the state highway system by the commission.
Section 2111. Section 72-4-102.5 is amended to read:
72-4-102.5
. Definitions -- Rulemaking -- Criteria for state highways.(1) As used in this section:
(a) "arterial highway" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(b) "collector highway," "collector road," or "collector street" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(c) "local street" or "local road" means a highway that is not an arterial highway or a collector highway and that is under the jurisdiction of a county or municipality;
(d) "major collector highway," "major collector road," or "major collector street" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(e) "minor collector road" or "minor collector street" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(f) "minor arterial highway" or "minor arterial street" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(g) "principal arterial highway" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(h) "rural area" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines;
(i) "tourist area" means an area of the state frequented by tourists for the purpose of visiting national parks, national recreation areas, national monuments, or state parks; and
(j) "urban area" has the same meaning as provided under the Federal Highway Administration Functional Classification Guidelines.
(2) (a) Subject to the provisions of Title 72, Chapter 3, Highway Jurisdiction and Classification Act, and this chapter, a state highway shall meet the criteria provided under this section.
(b) The highway authorities of this state or their representatives shall cooperate to match the criteria provided under this section with the state highways designated under this title.
(c) The primary function of state highways is to provide for the safe and efficient movement of traffic, while providing access to property is a secondary function.
(d) The primary function of county and municipal highways is to provide access to property.
(e) For purposes of this section, if a highway is within ten miles of a location identified under this section, the location is considered to be served by that highway.
(3) A state highway shall:
(a) serve a statewide purpose by accommodating interstate movement of traffic or interregion movement of traffic within the state;
(b) primarily move higher traffic volumes over longer distances than highways under local jurisdiction;
(c) connect major population centers;
(d) be spaced so that:
(i) all developed areas in the state are within a reasonable distance of a state highway; and
(ii) duplicative state routes are avoided;
(e) provide state highway system continuity and efficiency of state highway system operation and maintenance activities;
(f) include all interstate routes, all expressways, and all highways on the National Highway System as designated by the Federal Highway Administration under 23 C.F.R. Section 470, Subpart A, as of January 1, 2005; and
(g) exclude parking lots, driving ranges, and campus roads.
(4) In addition to the provisions of Subsection (3), in rural areas a state highway shall:
(a) include all minor arterial highways;
(b) include a major collector highway that:
(i) serves a county seat;
(ii) serves a municipality with a population of 1,000 or more;
(iii) serves a major industrial, commercial, or recreation areas that generate traffic volumes equivalent to a population of 1,000 or more;
(iv) provides continuity for the state highway system by providing major connections between other state highways;
(v) provides service between two or more counties; or
(vi) serves a compelling statewide public safety interest; and
(c) exclude all minor collector streets and local roads.
(5) In addition to the provisions of Subsection (3), in urban areas a state highway shall:
(a) include all principal arterial highways;
(b) include a minor arterial highway that:
(i) provides continuity for the state highway system by providing major connections between other state highways;
(ii) is a route that is expected to be a principal arterial highway within ten years; or
(iii) is needed to provide access to state highways; and
(c) exclude all collector highways and local roads.
(6) In addition to the provisions of Subsections (3) and (4), in tourist areas, a state highway:
(a) shall include a highway that:
(i) serves a national park or a national recreational area; or
(ii) serves a national monument with visitation greater than 100,000 per year; or
(b) may include a highway that:
(i) serves a state park with visitation greater than 100,000 per year; or
(ii) serves a recreation site with visitation greater than 100,000 per year.
(7) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules:
(i) establishing and defining a functional classification of highways for the purpose of implementing this section;
(ii) defining and designating regionally significant arterial highways; and
(iii) establishing an access management policy consistent with the functional classification of roadways.
(b) The definitions under Subsection (7)(a) shall provide a separate functional classification system for urban and rural highways recognizing the unique differences in the character of services provided by urban and rural highways.
(c) The rules under Subsection (7)(a):
(i) shall conform as nearly as practical to the Federal Highway Administration Functional Classification Guidelines; and
(ii) may incorporate by reference, in whole or in part, the federal guidelines under Subsection (7)(c)(i).
Section 2112. Section 72-4-303 is amended to read:
72-4-303
. Powers and duties of the Utah State Scenic Byway Committee -- Rulemaking authority -- Designation on state maps -- Outdoor advertising.(1) The committee shall have the responsibility to:
(a) administer a coordinated scenic byway program within the state that:
(i) preserves and protects the intrinsic qualities described in Subsection (1)(b) unique to scenic byways;
(ii) enhances recreation; and
(iii) promotes economic development through tourism and education;
(b) ensure that a highway nominated for a scenic byway designation possesses at least one of the following six intrinsic qualities:
(i) scenic quality;
(ii) natural quality;
(iii) historic quality;
(iv) cultural quality;
(v) archaeological quality; or
(vi) recreational quality;
(c) designate highways as state scenic byways from nominated highways within the state if the committee determines that the highway possesses the criteria for a state scenic byway; and
(d) remove the designation of a highway as a scenic byway if the committee determines that the highway no longer meets the criteria under which it was designated.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules in consultation with the committee:
(a) for the administration of a scenic byway program;
(b) establishing the criteria that a highway shall possess to be designated as a scenic byway, including the criteria described in Subsection (1)(b);
(c) establishing the process for nominating a highway to be designated as a state scenic byway;
(d) specifying the process for hearings to be conducted in the area of proposed designation prior to the highway being designated as a scenic byway;
(e) identifying the highways within the state designated as scenic byways; and
(f) establishing the process and criteria for removing the designation of a highway as a scenic byway.
(3) The department shall designate scenic byway routes on future state highway maps.
(4) A highway within the state designated as a scenic byway is subject to federal outdoor advertising regulations in accordance with 23 U.S.C. Sec. 131.
Section 2113. Section 72-5-203 is amended to read:
72-5-203
. Public easement or right of entry -- Grant -- Application -- Conditions.(1) (a) (i) Subject to Section 53C-1-302 and Subsection 53C-1-204(1), a temporary public easement or right of entry is granted for each highway existing prior to January 1, 1992, that terminates at or within or traverses any state lands and that has been constructed and maintained or used by a responsible authority.
(ii) The temporary public easement or right of entry granted under Subsection (1)(a)(i) is 100 feet wide for each class A and B highway.
(b) Each easement shall remain in effect through June 30, 2004, or until a permanent easement or right of entry has been established under Subsection (2), whichever is greater.
(2) (a) The School and Institutional Trust Lands Administration and the Division of Forestry, Fire and State Lands shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establishing an application process for a responsible authority to obtain a permanent easement or right of entry over any temporary public easement granted under Subsection (1), subject to the provisions of Subsections (2)(b), (c), and (d).
(b) A grant of a permanent easement or right of entry across sovereign lands shall be made upon a showing to the Division of Forestry, Fire and State Lands that continued use of the easement will provide a public benefit commensurate with the value of the permanent easement or right of entry.
(c) A grant of a permanent easement or right of entry across trust lands shall be made upon a showing to the School and Institutional Trust Lands Administration that the grant is consistent with the state's fiduciary responsibilities under Section 53C-1-302 and Subsection 53C-1-204(1).
(d) A grant of a permanent easement or right of entry across state lands other than sovereign and trust lands shall be made upon a showing to the managing unit of state government that the continued use will provide a public benefit commensurate with the value of the easement and will not unreasonably interfere with the purposes for which the land was obtained or is now held.
(3) The grant of the temporary public easement or right of entry under Subsection (1) is consistent with the trust responsibilities of the state and in the best interest of the state.
(4) A responsible authority that has been granted a permanent easement or right of entry over state lands may maintain the permanent easement or right of entry for the uses to which the permanent easement or right of entry was put prior to and including January 1, 1992, subject to the right of the managing unit of state government or private party to relocate the permanent easement or right of entry.
(5) The grant of a permanent easement or right of entry under this section is effective on the date the highway was originally constructed or established for public use.
Section 2114. Section 72-5-306 is amended to read:
72-5-306
. Assumption of risk -- Immunity -- Public safety.(1) An R.S. 2477 right-of-way not designated under Section 72-3-102, 72-3-103, or 72-3-104 as a Class A, B, or C road is traveled at the risk of the user.
(2) The state and its political subdivisions do not waive immunity under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, for injuries or damages occurring in or associated with any R.S. 2477 right-of-way.
(3) The state and its political subdivisions assume no liability for injury or damage resulting from a failure to maintain any:
(a) R.S. 2477 right-of-way for vehicular travel; or
(b) highway sign on an R.S. 2477 right-of-way.
(4) If the state or any political subdivision of the state chooses to maintain an R.S. 2477 right-of-way, the basic governmental objective involved in providing the improvements is the consistent promotion of public safety.
(5) (a) The state recognizes that there are limited funds available to upgrade all R.S. 2477 rights-of-way to applicable safety standards.
(b) A decision by the state or a political subdivision of the state to allocate funds for maintaining an R.S. 2477 right-of-way is the result of evaluation and assigning of priorities for the promotion of public safety.
(c) The state or a political subdivision of the state must use its judgment and expertise to evaluate which safety feature improvements should be made first. In making this policy determination the state or a political subdivision of the state may:
(i) perform on-site inspections and weigh all factors relating to safety, including the physical characteristics and configuration of the R.S. 2477 right-of-way and the volume and type of traffic on the R.S. 2477 right-of-way; and
(ii) consult with transportation experts who have expertise to make an evaluation of the relative dangerousness of R.S. 2477 rights-of-way within their jurisdiction.
Section 2115. Section 72-5-309 is amended to read:
72-5-309
. Acceptance of rights-of-way -- Notice of acknowledgment required.(1) The governor or the governor's designee may assess whether the grant of the R.S. 2477 has been accepted with regard to any right-of-way so as to vest title of the right-of-way in the state and the applicable political subdivision as provided for in Section 72-5-103.
(2) If the governor or governor's designee concludes that the grant has been accepted as to any right-of-way, the governor or a designee shall issue a notice of acknowledgment of the acceptance of the R.S. 2477 grant as to that right-of-way.
(3) A notice of acknowledgment of the R.S. 2477 grant shall include:
(a) a statement of reasons for the acknowledgment;
(b) a general description of the right-of-way or rights-of-way subject to the notice of acknowledgment, including the county in which it is located, and notice of where a center-line description derived from Global Positioning System data may be viewed or obtained;
(c) a statement that the owner of the servient estate in the land over which the right-of-way or rights-of-way subject to the notice runs or any person with a competing dominant estate ownership claim may file a petition with the district court for a decision regarding the correctness or incorrectness of the acknowledgment; and
(d) a statement of the time limit provided in Section 72-5-310 for filing a petition.
(4) (a) (i) A notice of acknowledgment may be recorded in the office of the county recorder in the county where the right-of-way or rights-of-way exist.
(ii) (A) A notice of acknowledgment recorded in the county recorder's office is not required to be accompanied by a paper copy of the center-line description.
(B) A paper copy of each center-line description together with the notice of acknowledgment shall be placed in the state archives created in Section [63-2-901] 63A-12-101 and made available to the public upon request in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(C) An electronic copy of the center-line description identified in a notice of acknowledgment shall be available upon request at:
(I) the county recorder's office; or
(II) the Automated Geographic Reference Center created in Section 63F-1-506.
(b) A notice of acknowledgment recorded in the county recorder's office is conclusive evidence of acceptance of the R.S. 2477 grant upon:
(i) expiration of the 60-day period for filing a petition under Section 72-5-310 without the filing of a petition; or
(ii) a final court decision that the notice of acknowledgment was not incorrect.
Section 2116. Section 72-5-405 is amended to read:
72-5-405
. Private owner rights.(1) The department, counties, and municipalities shall observe all protections conferred on private property rights, including [Title 63, Chapter 90] Title 63L, Chapter 3, Private Property Protection Act, [Title 63, Chapter 90a] Title 63L, Chapter 4, Constitutional Taking Issues, and compensation for takings.
(2) Private property owners from whom less than fee simple rights are obtained for transportation corridors or transportation corridor preservation have the right to petition the department, a county, or a municipality to acquire the entire fee simple interest in the affected property.
(3) (a) A private property owner whose property's development is limited or restricted by a power granted under this part may petition the county or municipality that adopted the official map to acquire less than or the entire fee simple interest in the affected property, at the option of the property owner.
(b) If the county or municipality petitioned under Subsection (3)(a) does not acquire the interest in the property requested by the property owner, then the county or municipality may not exercise any of the powers granted under this part to limit or restrict the affected property's development.
Section 2117. Section 72-5-406 is amended to read:
72-5-406
. Rulemaking.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules providing for private property owner petition procedures described in Section 72-5-405.
Section 2118. Section 72-6-107 is amended to read:
72-6-107
. Construction or improvement of highway -- Contracts -- Retainage.(1) (a) The department shall make plans, specifications, and estimates prior to the construction or improvement of any state highway.
(b) Except as provided in Section [63-56-502] 63G-6-502 and except for construction or improvements performed with state prison labor, a construction or improvement project with an estimated cost exceeding the bid limit as defined in Section 72-6-109 for labor and materials shall be performed under contract awarded to the lowest responsible bidder.
(c) The advertisement for bids shall be published in a newspaper of general circulation in the county in which the work is to be performed, at least once a week for two consecutive weeks, with the last publication at least ten days before bids are opened.
(d) The department shall receive sealed bids and open the bids at the time and place designated in the advertisement. The department may then award the contract but may reject any and all bids.
(e) If the department's estimates are substantially lower than any responsible bid received, the department may perform any work by force account.
(2) If any payment on a contract with a private contractor for construction or improvement of a state highway is retained or withheld, the payment shall be retained or withheld and released as provided in Section 13-8-5.
(3) If the department performs a construction or improvement project by force account, the department shall:
(a) provide an accounting of the costs and expenditures of the improvement including material and labor;
(b) disclose the costs and expenditures to any person upon request and allow the person to make a copy and pay for the actual cost of the copy; and
(c) perform the work using the same specifications and standards that would apply to a private contractor.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall establish procedures for:
(a) hearing evidence that a region within the department violated this section; and
(b) administering sanctions against the region if the region is found in violation.
Section 2119. Section 72-6-108 is amended to read:
72-6-108
. Class B and C roads -- Improvement projects -- Contracts -- Retainage.(1) A county executive for class B roads and the municipal executive for class C roads shall cause plans, specifications, and estimates to be made prior to the construction of any improvement project, as defined in Section 72-6-109, on a class B or C road if the estimated cost for any one project exceeds the bid limit as defined in Section 72-6-109 for labor, equipment, and materials.
(2) (a) All projects in excess of the bid limit shall be performed under contract to be let to the lowest responsible bidder.
(b) If the estimated cost of the improvement project exceeds the bid limit for labor, equipment, and materials, the project may not be divided to permit the construction in parts, unless each part is done by contract.
(3) The advertisement on bids shall be published in a newspaper of general circulation in the county in which the work is to be performed at least once a week for three consecutive weeks. If there is no newspaper of general circulation, the notice shall be posted for at least 20 days in at least five public places in the county.
(4) The county or municipal executive or their designee shall receive sealed bids and open the bids at the time and place designated in the advertisement. The county or municipal executive or their designee may then award the contract but may reject any and all bids.
(5) The person, firm, or corporation that is awarded a contract under this section is subject to the provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code.
(6) If any payment on a contract with a private contractor for construction or improvement of a class B or C road is retained or withheld, the payment shall be retained or withheld and released as provided in Section 13-8-5.
Section 2120. Section 72-6-111 is amended to read:
72-6-111
. Construction and maintenance of appurtenances -- Noise abatement measures.(1) The department is authorized to construct and maintain appurtenances along the state highway system necessary for public safety, welfare, and information. Appurtenances include highway illumination, sidewalks, curbs, gutters, steps, driveways, retaining walls, fire hydrants, guard rails, noise abatement measures, storm sewers, and rest areas.
(2) A noise abatement measure may only be constructed by the department along a highway when:
(a) the department is constructing a new state highway or performing major reconstruction on an existing state highway;
(b) the Legislature provides an appropriation or the federal government provides funding for construction of retrofit noise abatement along an existing state highway; or
(c) the cost for the noise abatement measure is provided by citizens, adjacent property owners, developers, or local governments.
(3) In addition to the requirements under Subsection (2), the department may only construct noise abatement measures within the unincorporated area of a county or within a municipality that has an ordinance or general plan that requires:
(a) a study to be conducted to determine the noise levels along new development adjacent to an existing state highway or a dedicated right-of-way; and
(b) the construction of noise abatement measures at the expense of the developer if required to be constructed under standards established by a rule of the department.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules establishing:
(a) when noise abatement measures are required to be constructed, including standards for decibel levels of traffic noise;
(b) the decibel level of traffic noise which identifies the projects to be programmed by the commission for the earliest construction of retrofit noise abatement measures funded under Subsection (2)(b) based on availability of funding; and
(c) a priority system for the construction of other retrofit noise abatement measures that meet or exceed the standards established under this section and are funded under Subsection (2)(b) which includes:
(i) the number of residential dwellings adversely affected by the traffic noise;
(ii) the cost effectiveness of mitigating the traffic noise; and
(iii) the length of time the decibel level of traffic noise has met or exceeded the standards established under this section.
Section 2121. Section 72-6-116 is amended to read:
72-6-116
. Regulation of utilities -- Relocation of utilities.(1) As used in this section:
(a) "Cost of relocation" includes the entire amount paid by the utility company properly attributable to the relocation of the utility after deducting any increase in the value of the new utility and any salvage value derived from the old utility.
(b) "Utility" includes telecommunication, gas, electricity, cable television, water, sewer, data, and video transmission lines, drainage and irrigation systems, and other similar utilities located in, on, along, across, over, through, or under any state highway.
(c) "Utility company" means a privately, cooperatively, or publicly owned utility, including utilities owned by political subdivisions.
(2) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules for the installation, construction, maintenance, repair, renewal, system upgrade, and relocation of all utilities.
(b) If the department determines under the rules established in this section that it is necessary that any utilities should be relocated, the utility company owning or operating the utilities shall relocate the utilities in accordance with this section and the order of the department.
(3) (a) The department shall pay 100% of the cost of relocation of a utility on a state highway if the:
(i) utility is owned or operated by a political subdivision of the state; or
(ii) utility company owns the easement or fee title to the right-of-way in which the utility is located.
(b) Except as provided in Subsection (3)(a) or (c), the department shall pay 50% of the cost of relocation of a utility on a state highway and the utility company shall pay the remainder of the cost of relocation.
(c) This Subsection (3) does not affect the provisions of Subsection 72-7-108(5).
(4) If a utility is relocated, the utility company owning or operating the utility, its successors or assigns, may maintain and operate the utility, with the necessary appurtenances, in the new location.
(5) In accordance with this section, the cost of relocating a utility in connection with any project on a highway is a cost of highway construction.
(6) (a) The department shall notify affected utility companies whenever the relocation of utilities is likely to be necessary because of a reconstruction project.
(b) The notification shall be made during the preliminary design of the project or as soon as practical in order to minimize the number, costs, and delays of utility relocations.
(c) A utility company notified under this Subsection (6) shall coordinate with the department and the department's contractor on the utility relocations, including the scheduling of the utility relocations.
Section 2122. Section 72-6-118 is amended to read:
72-6-118
. Definitions -- Establishment and operation of tollways -- Imposition and collection of tolls -- Amount of tolls -- Rulemaking.(1) As used in this section:
(a) "High occupancy toll lane" means a high occupancy vehicle lane designated under Section 41-6a-702 that may be used by an operator of a vehicle carrying less than the number of persons specified for the high occupancy vehicle lane if the operator of the vehicle pays a toll or fee.
(b) "Toll" means any tax, fee, or charge assessed for the specific use of a tollway.
(c) "Toll lane" means a designated new highway or additional lane capacity that is constructed, operated, or maintained for which a toll is charged for its use.
(d) (i) "Tollway" means a highway, highway lane, bridge, path, tunnel, or right-of-way designed and used as a transportation route that is constructed, operated, or maintained through the use of toll revenues.
(ii) "Tollway" includes a high occupancy toll lane and a toll lane.
(e) "Tollway development agreement" has the same meaning as defined in Section 72-6-202.
(2) Subject to the provisions of Subsection (3), the department may:
(a) establish, expand, and operate tollways and related facilities for the purpose of funding in whole or in part the acquisition of right-of-way and the design, construction, reconstruction, operation, enforcement, and maintenance of or impacts from a transportation route for use by the public;
(b) enter into contracts, agreements, licenses, franchises, tollway development agreements, or other arrangements to implement this section;
(c) impose and collect tolls on any tollway established under this section; and
(d) grant exclusive or nonexclusive rights to a private entity to impose and collect tolls pursuant to the terms and conditions of a tollway development agreement.
(3) (a) Except as provided under Subsection (3)(d), the department or other entity may not establish or operate a tollway on an existing state highway, except as approved by the commission and the Legislature.
(b) Between sessions of the Legislature, a state tollway may be designated or deleted if:
(i) approved by the commission in accordance with the standards made under this section; and
(ii) the tollways are submitted to the Legislature in the next year for legislative approval or disapproval.
(c) In conjunction with a proposal submitted under Subsection (3)(b)(ii), the department shall provide a description of the tollway project, projected traffic, the anticipated amount of tolls to be charged, and projected toll revenue.
(d) If approved by the commission, the department may:
(i) establish high occupancy toll lanes on existing state highways; and
(ii) establish tollways on new state highways or additional capacity lanes.
(4) (a) Except as provided in Subsection (4)(b), in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the commission shall:
(i) set the amount of any toll imposed or collected on a tollway on a state highway; and
(ii) for tolls established under Subsection (4)(b), set:
(A) an increase in a toll rate or user fee above an increase specified in a tollway development agreement; or
(B) an increase in a toll rate or user fee above a maximum toll rate specified in a tollway development agreement.
(b) A toll or user fee and an increase to a toll or user fee imposed or collected on a tollway on a state highway that is the subject of a tollway development agreement shall be set in the tollway development agreement.
(5) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules:
(i) necessary to establish and operate tollways on state highways; and
(ii) that establish standards and specifications for automatic tolling systems.
(b) The rules shall:
(i) include minimum criteria for having a tollway; and
(ii) conform to regional and national standards for automatic tolling.
(6) (a) The commission may provide funds for public or private tollway pilot projects or high occupancy toll lanes from General Fund monies appropriated by the Legislature to the commission for that purpose.
(b) The commission may determine priorities and funding levels for tollways designated under this section.
(7) (a) Except as provided in Subsection (7)(b), all revenue generated from a tollway on a state highway shall be deposited into the Tollway Restricted Special Revenue Fund created in Section 72-2-120 and used for acquisition of right-of-way and the design, construction, reconstruction, operation, maintenance, enforcement of transportation facilities, and other facilities used exclusively for the operation of a tollway facility within the corridor served by the tollway.
(b) Revenue generated from a tollway that is the subject of a tollway development agreement shall be deposited into the Tollway Restricted Special Revenue Fund and used in accordance with Subsection (7)(a) unless:
(i) the revenue is to a private entity through the tollway development agreement; or
(ii) the revenue is identified for a different purpose under the tollway development agreement.
Section 2123. Section 72-6-119 is amended to read:
72-6-119
. "511" Traveler information services -- Lead agency -- Implementation -- Cooperation -- Rulemaking -- Costs.(1) As used in this section, "511" or "511 service" means three-digit telecommunications dialing to access intelligent transportation system -- traveler information service provided in the state in accordance with the Federal Communications Commission and United States Department of Transportation.
(2) The department is the state's lead agency for implementing 511 service and is the state's point of contact for coordinating 511 service with telecommunications service providers.
(3) The department shall:
(a) implement and administer 511 service in the state;
(b) coordinate with the highway authorities and public transit districts to provide advanced multimodal traveler information through 511 service and other means; and
(c) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules as necessary to implement this section.
(4) (a) In accordance with Title 11, Chapter 13, Interlocal Cooperation Act, the department shall enter into agreements or contracts with highway authorities and public transit districts to share the costs of implementing and administering 511 service in the state.
(b) The department shall enter into other agreements or contracts relating to the 511 service to offset the costs of implementing and administering 511 service in the state.
Section 2124. Section 72-6-120 is amended to read:
72-6-120
. Department authorized to participate in federal program assuming responsibility for environmental review of categorically excluded projects -- Rulemaking authority.(1) The department may:
(a) assume responsibilities under 23 U.S.C. Sec. 326 for:
(i) determining whether state highway design and construction projects are categorically excluded from requirements for environmental assessments or environmental impact statements; and
(ii) environmental review, consultation, or other actions required under federal law for categorically excluded projects;
(b) enter one or more memoranda of understanding with the United States Department of Transportation related to federal highway programs as provided in 23 U.S.C. Sec. 326 subject to the requirements of Subsection 72-1-207(5);
(c) accept, receive, and administer grants, other money, or gifts from public and private agencies, including the federal government, for the purpose of carrying out the programs authorized under this section; and
(d) cooperate with the federal government in implementing this section and any memorandum of understanding entered into under Subsection 72-1-207(5).
(2) Notwithstanding any other provision of law, in implementing a program under this section that is approved by the United States Department of Transportation, the department is authorized to:
(a) perform or conduct any of the activities described in a memorandum of understanding entered into under Subsection 72-1-207(5);
(b) take actions necessary to implement the program; and
(c) adopt relevant federal environmental standards as the standards for this state for categorically excluded projects.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may makes rules to implement the provisions of this section.
Section 2125. Section 72-6-204 is amended to read:
72-6-204
. Minimum requirements for a tollway development agreement proposal.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department and the commission shall make rules establishing minimum guidelines for tollway development agreement proposals.
(2) The guidelines under Subsection (1) shall require the proposal to include:
(a) a map indicating the location of the tollway facility;
(b) a description of the tollway facility;
(c) a list of the major permits and approvals required for developing or operating improvements to the tollway facility from local, state, or federal agencies and a projected schedule for obtaining the permits and approvals;
(d) a description of the types of public utility facilities, if any, that will be crossed by the tollway facility and a statement of the plans to accommodate the crossing;
(e) an estimate of the design and construction costs of the tollway facility;
(f) a statement setting forth the private entity's general plans for developing or operating the tollway facility, including identification of any revenue, public or private, or proposed debt or equity investment proposed by the private entity;
(g) a statement of the estimated level of funding, if any, required to be provided by the state;
(h) the name and addresses of the persons who may be contacted for further information concerning the tollway development agreement proposal; and
(i) any other material or information that the department requires by rules made under this section.
(3) The department is not required to review a tollway development agreement proposal if it determines that the proposal does not meet the guidelines established under this section.
Section 2126. Section 72-6-205 is amended to read:
72-6-205
. Solicited and unsolicited tollway development agreement proposals.(1) In accordance with this section, the department may:
(a) accept unsolicited tollway development agreement proposals; or
(b) solicit tollway development agreement proposals for a proposed project.
(2) The department shall solicit tollway development agreement proposals in accordance with Section [63-56-502.5] 63G-6-503.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department and the commission shall establish rules and procedures for accepting unsolicited proposals that require the:
(a) private entity that submits the unsolicited proposal to comply with the minimum requirements for tollway development agreement proposals under Section 72-6-204;
(b) department to issue a request for competing proposals and qualifications that includes:
(i) a description of the proposed tollway development facility and the terms and conditions of a tollway development agreement;
(ii) submittal requirements;
(iii) the criteria to be used to evaluate the proposals;
(iv) the relative weight given to the criteria; and
(v) the deadline by which competing proposals must be received; and
(c) department to publish a notice advertising the request for competing proposals and providing information regarding how to obtain a copy of the request.
(4) (a) The department may establish a fee in accordance with Section [63-38-3.2] 63J-1-303 for reviewing unsolicited proposals and competing proposals submitted under this section.
(b) The department may waive the fee under Subsection (4)(a) if it determines that it is reasonable and in the best interest of the state.
Section 2127. Section 72-7-102 is amended to read:
72-7-102
. Excavations, structures, or objects prohibited within right-of-way except in accordance with law -- Permit and fee requirements -- Rulemaking -- Penalty for violation.(1) As used in this section, "management costs" means the reasonable, direct, and actual costs a highway authority incurs in exercising authority over the highways under its jurisdiction.
(2) Except as provided in Subsection (3) and Section 54-4-15, a person may not:
(a) dig or excavate, within the right-of-way of any state highway, county road, or city street; or
(b) place, construct, or maintain any approach road, driveway, pole, pipeline, conduit, sewer, ditch, culvert, billboard, advertising sign, or any other structure or object of any kind or character within the right-of-way.
(3) (a) A highway authority having jurisdiction over the right-of-way may allow excavating, installation of utilities and other facilities or access under rules made by the highway authority and in compliance with federal, state, and local law as applicable.
(b) (i) The rules may require a permit for any excavation or installation and may require a surety bond or other security.
(ii) The application for a permit for excavation or installation on a state highway shall be accompanied by a fee established under Subsection (4)(f).
(iii) The permit may be revoked and the surety bond or other security may be forfeited for cause.
(4) (a) Except as provided in Section 72-7-108 with respect to the department concerning the interstate highway system, a highway authority may require compensation from a utility service provider for access to the right-of-way of a highway only as provided in this section.
(b) A highway authority may recover from a utility service provider, only those management costs caused by the utility service provider's activities in the right-of-way of a highway under the jurisdiction of the highway authority.
(c) (i) A fee or other compensation under this Subsection (4) shall be imposed on a competitively neutral basis.
(ii) If a highway authority's management costs cannot be attributed to only one entity, the management costs shall be allocated among all privately owned and government agencies using the highway right-of-way for utility service purposes, including the highway authority itself. The allocation shall reflect proportionately the management costs incurred by the highway authority as a result of the various utility uses of the highway.
(d) A highway authority may not use the compensation authority granted under this Subsection (4) as a basis for generating revenue for the highway authority that is in addition to its management costs.
(e) (i) A utility service provider that is assessed management costs or a franchise fee by a highway authority is entitled to recover those management costs.
(ii) If the highway authority that assesses the management costs or franchise fees is a political subdivision of the state and the utility service provider serves customers within the boundaries of that highway authority, the management costs may be recovered from those customers.
(f) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall adopt a schedule of fees to be assessed for management costs incurred in connection with issuing and administering a permit on a state highway under this section.
(g) In addition to the requirements of this Subsection (4), a telecommunications tax or fee imposed by a municipality on a telecommunications provider, as defined in Section 10-1-402, is subject to Section 10-1-406.
(5) Permit fees collected by the department under this section shall be deposited with the state treasurer and credited to the Transportation Fund.
(6) Nothing in this section shall affect the authority of a municipality under:
(a) Section 10-1-203;
(b) Section 11-26-1;
(c) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act; or
(d) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act.
(7) A person who violates the provisions of Subsection (2) is guilty of a class B misdemeanor.
Section 2128. Section 72-7-104 is amended to read:
72-7-104
. Installations constructed in violation of rules -- Rights of highway authorities to remove or require removal.(1) If any person, firm, or corporation installs, places, constructs, alters, repairs, or maintains any approach road, driveway, pole, pipeline, conduit, sewer, ditch, culvert, outdoor advertising sign, or any other structure or object of any kind or character within the right-of-way of any highway without complying with this title, the highway authority having jurisdiction over the right-of-way may:
(a) remove the installation from the right-of-way or require the person, firm, or corporation to remove the installation; or
(b) give written notice to the person, firm, or corporation to remove the installation from the right-of-way.
(2) Notice under Subsection (1)(b) may be served by:
(a) personal service; or
(b) (i) mailing the notice to the person, firm, or corporation by certified mail; and
(ii) posting a copy on the installation for ten days.
(3) If the installation is not removed within ten days after the notice is complete, the highway authority may remove the installation at the expense of the person, firm, or corporation.
(4) A highway authority may recover:
(a) the costs and expenses incurred in removing the installation, serving notice, and the costs of a lawsuit if any; and
(b) $10 for each day the installation remained within the right-of-way after notice was complete.
(5) (a) If the person, firm, or corporation disputes or denies the existence, placement, construction, or maintenance of the installation, or refuses to remove or permit its removal, the highway authority may bring an action to abate the installation as a public nuisance.
(b) If the highway authority is granted a judgment, the highway authority may recover the costs of having the public nuisance abated as provided in Subsection (4).
(6) The department, its agents, or employees, if acting in good faith, incur no liability for causing removal of an installation within a right-of-way of a highway as provided in this section.
(7) The actions of the department under this section are not subject to the provisions of [Title 63, Chapter 46b, the] Title 63G, Chapter 4, Administrative Procedures Act.
Section 2129. Section 72-7-107 is amended to read:
72-7-107
. Public safety program signs -- Permits.(1) As used in this section, "public safety program sign" means a sign, placed on or adjacent to a highway, that is promoting a highway safety program or highway safety practice, or a crime or drug abuse prevention program that is being sponsored by the department, the Department of Public Safety, or a local law enforcement agency.
(2) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules to allow public safety program signs on state highways by permit. The rules shall contain reasonable terms and conditions:
(a) that are no more restrictive than motorist service signing requirements of the Manual on Uniform Traffic Control Devices for Streets and Highways adopted under Section 41-6a-301; and
(b) for granting and maintaining a permit.
Section 2130. Section 72-7-108 is amended to read:
72-7-108
. Longitudinal telecommunication access in the interstate highway system -- Definitions -- Agreements -- Compensation -- Restrictions -- Rulemaking.(1) As used in this section:
(a) "Longitudinal access" means access to or use of any part of a right-of-way of a highway on the interstate system that extends generally parallel to the right-of-way for a total of 30 or more linear meters.
(b) "Statewide telecommunications purposes" means the further development of the statewide network that meets the telecommunications needs of state agencies and enhances the learning purposes of higher and public education.
(c) "Telecommunication facility" means any telecommunication cable, line, fiber, wire, conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment, receiving equipment, power equipment, or other equipment, system, and device used to transmit, receive, produce, or distribute via wireless, wireline, electronic, or optical signal for communication purposes.
(2) (a) Except as provided in Subsection (4), the department may allow a telecommunication facility provider longitudinal access to the right-of-way of a highway on the interstate system for the installation, operation, and maintenance of a telecommunication facility.
(b) The department shall enter into an agreement with a telecommunication facility provider and issue a permit before granting it any longitudinal access under this section.
(i) Except as specifically provided by the agreement, a property interest in a right-of-way may not be granted under the provisions of this section.
(ii) An agreement entered into by the department under this section shall:
(A) specify the terms and conditions for the renegotiation of the agreement;
(B) specify maintenance responsibilities for each telecommunication facility;
(C) be nonexclusive; and
(D) be limited to a maximum term of 30 years.
(3) (a) The department shall require compensation from a telecommunication facility provider under this section for longitudinal access to the right-of-way of a highway on the interstate system.
(b) The compensation charged shall be:
(i) fair and reasonable;
(ii) competitively neutral;
(iii) nondiscriminatory;
(iv) open to public inspection;
(v) established to promote access by multiple telecommunication facility providers;
(vi) established for zones of the state, with zones determined based upon factors that include population density, distance, numbers of telecommunication subscribers, and the impact upon private right-of-way users;
(vii) established to encourage the deployment of digital infrastructure within the state;
(viii) set after the department conducts a market analysis to determine the fair and reasonable values of the right-of-way based upon adjacent property values;
(ix) a lump sum payment or annual installment, at the option of the telecommunications facility provider; and
(x) set in accordance with Subsection (3)(f).
(c) (i) The compensation charged may be cash, in-kind compensation, or a combination of cash and in-kind compensation.
(ii) In-kind compensation requires the agreement of both the telecommunication facility provider and the department.
(iii) The department shall, in consultation with the Telecommunications Advisory Council created in Section 72-7-109, determine the present value of any in-kind compensation based upon the incremental cost to the telecommunication facility provider.
(iv) The value of in-kind compensation or a combination of cash and in-kind compensation shall be equal to or greater than the amount of cash compensation that would be charged if the compensation is cash only.
(d) (i) The department shall provide for the proportionate sharing of costs among the department and telecommunications providers for joint trenching or trench sharing based on the amount of conduit innerduct space that is authorized in the agreement for the trench.
(ii) If two or more telecommunications facility providers are required to share a single trench, each telecommunications facility provider in the trench shall share the cost and benefits of the trench in accordance with Subsection (3)(d)(i) on a fair, reasonable, competitively neutral, and nondiscriminatory basis.
(e) The market analysis under Subsection (3)(b)(viii) shall be conducted at least every five years and any adjustments warranted shall apply only to agreements entered after the date of the new market analysis.
(f) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall establish a schedule of rates of compensation for any longitudinal access granted under this section.
(4) The department may not grant any longitudinal access under this section that results in a significant compromise of the safe, efficient, and convenient use of the interstate system for the traveling public.
(5) The department may not pay any cost of relocation of a telecommunication facility granted longitudinal access to the right-of-way of a highway on the interstate system under this section.
(6) (a) Monetary compensation collected by the department in accordance with this section shall be deposited with the state treasurer and credited to the Transportation Fund.
(b) Any telecommunications capacity acquired as in-kind compensation shall be used:
(i) exclusively for statewide telecommunications purposes and may not be sold or leased in competition with telecommunication or Internet service providers; and
(ii) as determined by the department after consultation with the Telecommunications Advisory Council created in Section 72-7-109.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules:
(a) governing the installation, operation, and maintenance of a telecommunication facility granted longitudinal access under this section;
(b) specifying the procedures for establishing an agreement for longitudinal access for a telecommunication facility provider;
(c) providing for the relocation or removal of a telecommunication facility for:
(i) needed changes to a highway on the interstate system;
(ii) expiration of an agreement; or
(iii) a breach of an agreement; and
(d) providing an opportunity for all interested providers to apply for access within open right-of-way segments.
(8) (a) Except for a right-of-way of a highway on the interstate system, nothing in this section shall be construed to allow a highway authority to require compensation from a telecommunication facility provider for longitudinal access to the right-of-way of a highway under the highway authority's jurisdiction.
(b) Nothing in this section shall affect the authority of a municipality under:
(i) Section 10-1-203;
(ii) Section 11-26-1;
(iii) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act; or
(iv) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act.
(9) Compensation paid to the department under Subsection (3) may not be used by any person as evidence of the market or other value of the access for any other purpose, including condemnation proceedings, other litigation, or the application of rates of taxation or the establishment of franchise fees relating to longitudinal access rights.
Section 2131. Section 72-7-203 is amended to read:
72-7-203
. License required.(1) A person may not establish, operate, or maintain a junkyard, any portion of which is within 1,000 feet of the nearest edge of the right-of-way of any interstate or federal-aid primary highway, without obtaining a license from the department under this part.
(2) A municipality may adopt ordinances, not in conflict with this part, to regulate the creation or maintenance of junkyards of any type within 660 feet of the right-of-way of designated state and federal highways within the jurisdictional limits of the adopting municipality.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules, not in conflict with this part, to regulate the creation and maintenance of junkyards within 660 feet of the right-of-way of designated federal and state highways outside the jurisdictional limits of a municipality.
Section 2132. Section 72-7-205 is amended to read:
72-7-205
. Conditions for licensing of junkyard within 1,000 feet of highway.(1) The department may not grant a license for the establishment, maintenance, or operation of a junkyard within 1,000 feet of the nearest edge of the right-of-way of any highway on the interstate or primary systems unless the junkyard is:
(a) screened by natural objects, plantings, fences, or other appropriate means so the junkyard is not visible from the main-traveled-way of the system; and
(b) (i) located within areas that are zoned for industrial use under county or municipal ordinances; or
(ii) located within unzoned industrial areas, determined by actual land uses as defined by rules made by the department in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) A junkyard controlled by this part may not be expanded or have its use extended except by permission of the department under rules made by the department.
Section 2133. Section 72-7-206 is amended to read:
72-7-206
. Screening of existing junkyards.(1) The department shall screen any junkyard lawfully in existence on May 9, 1967, which is located within 1,000 feet of the nearest edge of the right-of-way and visible from the main-traveled-way of any highway on the interstate or primary system.
(2) The screening shall be at locations on the right-of-way or in areas outside the right-of-way acquired for that purpose and may not be visible from the main-traveled-way of the interstate or federal-aid primary systems.
(3) The department may not install junkyard screening under this section unless:
(a) the necessary federal funds for participation have been appropriated by the federal government and are immediately available to the state; and
(b) the department has received approval to seek federal grants, loans, or participation in federal programs under [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures.
Section 2134. Section 72-7-207 is amended to read:
72-7-207
. Junkyards not adaptable to screening -- Authority of department to acquire land -- Compensation.(1) If the department determines that the topography of the land adjoining the interstate and primary systems will not permit adequate screening of junkyards or that screening would not be economically feasible, the department may acquire by gift, purchase, exchange, or eminent domain the interests in lands necessary to secure the relocation, removal, or disposal of the junkyards.
(2) If the department determines that it is in the best interests of the state, it may acquire lands, or interests in lands, necessary to provide adequate screening of junkyards.
(3) The acquisitions provided for in this section may not be undertaken unless:
(a) the necessary federal funds for participation have been appropriated by the federal government and are immediately available to the state; and
(b) the department has received approval to seek federal grants, loans, or participation in federal programs under [Title 63, Chapter 38e] Title 63J, Chapter 5, Federal Funds Procedures.
(4) Damages resulting from any taking of property in eminent domain shall be ascertained in the manner provided by law.
(5) Just compensation shall be paid the owner for the relocation, removal, or disposal of a junkyard lawfully established under the laws of this state and which must be relocated, removed, or disposed of under this part.
Section 2135. Section 72-7-209 is amended to read:
72-7-209
. Enforcement authority -- Agreements with United States.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules:
(a) governing the materials that may be used for screening and the location, construction, and maintenance of screening for junkyards; and
(b) implementing and enforcing this part.
(2) The department may:
(a) enter into agreements with the secretary pursuant to Title 23, United States Code as amended, relating to the control of junkyards in areas adjacent to the interstate and primary systems; and
(b) take action in the name of the state to comply with the terms of the agreements.
Section 2136. Section 72-7-402 is amended to read:
72-7-402
. Limitations as to vehicle width, height, length, and load extensions.(1) (a) Except as provided by statute, all state or federally approved safety devices and any other lawful appurtenant devices, including refrigeration units, hitches, air line connections, and load securing devices related to the safe operation of a vehicle are excluded for purposes of measuring the width and length of a vehicle under the provisions of this part, if the devices are not designed or used for carrying cargo.
(b) Load-induced tire bulge is excluded for purposes of measuring the width of vehicles under the provisions of this part.
(c) Appurtenances attached to the sides or rear of a recreational vehicle that is not a commercial motor vehicle are excluded for purposes of measuring the width and length of the recreational vehicle if the additional width or length of the appurtenances does not exceed six inches.
(2) A vehicle unladen or with a load may not exceed a width of 8-1/2 feet.
(3) A vehicle unladen or with a load may not exceed a height of 14 feet.
(4) (a) (i) A single-unit vehicle, unladen or with a load, may not exceed a length of 45 feet including front and rear bumpers.
(ii) In this section, a truck tractor coupled to one or more semitrailers or trailers is not considered a single-unit vehicle.
(b) (i) Except as provided under Subsection (4)(b)(iii), a semitrailer, unladen or with a load, may not exceed a length of 48 feet excluding refrigeration units, hitches, air line connections, and safety appurtenances.
(ii) There is no overall length limitation on a truck tractor and semitrailer combination when the semitrailer length is 48 feet or less.
(iii) A semitrailer that exceeds a length of 48 feet but does not exceed a length of 53 feet may operate on a route designated by the department or within one mile of that route.
(c) (i) Two trailers coupled together, unladen or with a load, may not exceed an overall length of 61 feet, measured from the front of the first trailer to the rear of the second trailer.
(ii) There is no overall length limitation on a truck tractor and double trailer combination when the trailers coupled together measure 61 feet or less.
(d) All other combinations of vehicles, unladen or with a load, when coupled together, may not exceed a total length of 65 feet, except the length limitations do not apply to combinations of vehicles operated at night by a public utility when required for emergency repair of public service facilities or properties, or when operated under a permit under Section 72-7-406.
(5) (a) Subject to Subsection (4), a vehicle or combination of vehicles may not carry any load extending more than three feet beyond the front of the body of the vehicle or more than six feet beyond the rear of the bed or body of the vehicle.
(b) A passenger vehicle may not carry any load extending beyond the line of the fenders on the left side of the vehicle nor extending more than six inches beyond the line of the fenders on the right side of the vehicle.
(6) Any exception to this section must be authorized by a permit as provided under Section 72-7-406.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules designating routes where a semitrailer that exceeds a length of 48 feet but that does not exceed a length of 53 feet may operate as provided under Subsection (4)(b)(iii).
(8) Any person who violates this section is guilty of a class B misdemeanor.
Section 2137. Section 72-7-406 is amended to read:
72-7-406
. Oversize permits and oversize and overweight permits for vehicles of excessive size or weight -- Applications -- Restrictions -- Fees -- Rulemaking provisions -- Penalty.(1) (a) The department may, upon receipt of an application and good cause shown, issue in writing an oversize permit or an oversize and overweight permit. The oversize permit or oversize and overweight permit may authorize the applicant to operate or move upon a highway:
(i) a vehicle or combination of vehicles, unladen or with a load weighing more than the maximum weight specified in Section 72-7-404 for any wheel, axle, group of axles, or total gross weight; or
(ii) a vehicle or combination of vehicles that exceeds the vehicle width, height, or length provisions under Section 72-7-402.
(b) Except as provided under Subsection (8), an oversize and overweight permit may not be issued under this section to allow the transportation of a load that is reasonably divisible.
(c) The maximum size or weight authorized by a permit under this section shall be within limits that do not impair the state's ability to qualify for federal-aid highway funds.
(d) The department may deny or issue a permit under this section to protect the safety of the traveling public and to protect highway foundation, surfaces, or structures from undue damage by one or more of the following:
(i) limiting the number of trips the vehicle may make;
(ii) establishing seasonal or other time limits within which the vehicle may operate or move on the highway indicated;
(iii) requiring security in addition to the permit to compensate for any potential damage by the vehicle to any highway; and
(iv) otherwise limiting the conditions of operation or movement of the vehicle.
(e) Prior to granting a permit under this section, the department shall approve the route of any vehicle or combination of vehicles.
(2) An application for a permit under this section shall state:
(a) the proposed maximum wheel loads, maximum axle loads, all axle spacings of each vehicle or combination of vehicles;
(b) the proposed maximum load size and maximum size of each vehicle or combination of vehicles;
(c) the specific roads requested to be used under authority of the permit; and
(d) if the permit is requested for a single trip or if other seasonal limits or time limits apply.
(3) Each oversize permit or oversize and overweight permit shall be carried in the vehicle or combination of vehicles to which it refers and shall be available for inspection by any peace officer, special function officer, port of entry agent, or other personnel authorized by the department.
(4) A permit under this section may not be issued or is not valid unless the vehicle or combination of vehicles is:
(a) properly registered for the weight authorized by the permit; or
(b) registered for a gross laden weight of 78,001 pounds or over, if the gross laden weight authorized by the permit exceeds 80,000 pounds.
(5) (a) (i) An oversize permit may be issued under this section for a vehicle or combination of vehicles that exceeds one or more of the maximum width, height, or length provisions under Section 72-7-402.
(ii) Except for an annual oversize permit for an implement of husbandry under Section 72-7-407 or for an annual oversize permit issued under Subsection (5)(a)(iii), only a single trip oversize permit may be issued for a vehicle or combination of vehicles that is more than 14 feet 6 inches wide, 14 feet high, or 105 feet long.
(iii) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules for the issuance of an annual oversize permit for a vehicle or combination of vehicles that is more than 14 feet 6 inches wide, 14 feet high, or 105 feet long if the department determines that the permit is needed to accommodate highway transportation needs for multiple trips on a specified route.
(b) The fee is $25 for a single trip oversize permit under this Subsection (5). This permit is valid for not more than 96 continuous hours.
(c) The fee is $60 for a semiannual oversize permit under this Subsection (5). This permit is valid for not more than 180 continuous days.
(d) The fee is $75 for an annual oversize permit under this Subsection (5). This permit is valid for not more than 365 continuous days.
(6) (a) An oversize and overweight permit may be issued under this section for a vehicle or combination of vehicles carrying a nondivisible load that exceeds one or more of the maximum weight provisions of Section 72-7-404 by not more than 25%, except that the gross weight may not exceed 125,000 pounds.
(b) The fee is $50 for a single trip oversize and overweight permit under this Subsection (6). This permit is valid for not more than 96 continuous hours.
(c) A semiannual oversize and overweight permit under this Subsection (6) is valid for not more than 180 continuous days. The fee for this permit is:
(i) $150 for a vehicle or combination of vehicles with gross vehicle weight of more than 80,000 pounds, but not exceeding 84,000 pounds;
(ii) $260 for a vehicle or combination of vehicles with gross vehicle weight of more than 84,000 pounds, but not exceeding 112,000 pounds; and
(iii) $350 for a vehicle or combination of vehicles with gross vehicle weight of more than 112,000 pounds, but not exceeding 125,000 pounds.
(d) An annual oversize and overweight permit under this Subsection (6) is valid for not more than 365 continuous days. The fee for this permit is:
(i) $200 for a vehicle or combination of vehicles with gross vehicle weight of more than 80,000 pounds, but not exceeding 84,000 pounds;
(ii) $400 for a vehicle or combination of vehicles with gross vehicle weight of more than 84,000 pounds, but not exceeding 112,000 pounds; and
(iii) $450 for a vehicle or combination of vehicles with gross vehicle weight of more than 112,000 pounds, but not exceeding 125,000 pounds.
(7) (a) A single trip oversize and overweight permit may be issued under this section for a vehicle or combination of vehicles carrying a nondivisible load that exceeds one or more of the maximum weight provisions of Section 72-7-404 by more than 25% or that exceeds a gross weight of 125,000 pounds.
(b) (i) The fee for a single trip oversize and overweight permit under this Subsection (7), which is valid for not more than 96 continuous hours, is $.01 per mile for each 1,000 pounds above 80,000 pounds subject to the rounding described in Subsection (7)(c).
(ii) The minimum fee that may be charged under this Subsection (7) is $65.
(iii) The maximum fee that may be charged under this Subsection (7) is $450.
(c) (i) The miles used to calculate the fee under this Subsection (7) shall be rounded up to the nearest 50 mile increment.
(ii) The pounds used to calculate the fee under this Subsection (7) shall be rounded up to the nearest 25,000 pound increment.
(8) (a) An oversize and overweight permit may be issued under this section for a vehicle or combination of vehicles carrying a divisible load if:
(i) the bridge formula under Subsection 72-7-404(3) is not exceeded; and
(ii) the length of the vehicle or combination of vehicles is:
(A) more than the limitations specified under Subsections 72-7-402(4)(c) and (d) but not exceeding 81 feet in cargo carrying length and the application is for a single trip, semiannual trip, or annual trip permit; or
(B) more than 81 feet in cargo carrying length but not exceeding 95 feet in cargo carrying length and the application is for an annual trip permit.
(b) The fee is $50 for a single trip oversize and overweight permit under this Subsection (8). The permit is valid for not more than 96 continuous hours.
(c) The fee for a semiannual oversize and overweight permit under this Subsection (8), which permit is valid for not more than 180 continuous days is:
(i) $150 for a vehicle or combination of vehicles with gross vehicle weight of more than 80,000 pounds, but not exceeding 84,000 pounds;
(ii) $260 for a vehicle or combination of vehicles with gross vehicle weight of more than 84,000 pounds, but not exceeding 112,000 pounds; and
(iii) $350 for a vehicle or combination of vehicles with gross vehicle weight of more than 112,000 pounds, but not exceeding 129,000 pounds.
(d) The fee for an annual oversize and overweight permit under this Subsection (8), which permit is valid for not more than 365 continuous days is:
(i) $200 for a vehicle or combination of vehicles with gross vehicle weight of more than 80,000 pounds, but not exceeding 84,000 pounds;
(ii) $400 for a vehicle or combination of vehicles with gross vehicle weight of more than 84,000 pounds, but not exceeding 112,000 pounds; and
(iii) $450 for a vehicle or combination of vehicles with gross vehicle weight of more than 112,000 pounds, but not exceeding 129,000 pounds.
(9) Permits under Subsections (7) and (8) may be issued only upon authorization of the commission.
(10) Permit fees collected under this section shall be credited monthly to the Transportation Fund.
(11) The department shall prepare maps, drawings, and instructions as guidance when issuing permits under this section.
(12) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules governing the issuance and revocation of all permits under this section and Section 72-7-407.
(13) Any person who violates any of the terms or conditions of a permit issued under this section:
(a) may have his permit revoked; and
(b) is guilty of a class B misdemeanor.
Section 2138. Section 72-7-407 is amended to read:
72-7-407
. Implements of husbandry -- Escort vehicle requirements -- Oversize permit -- Rulemaking -- Penalty.(1) As used in this section, "escort vehicle" means a motor vehicle, as defined under Section 41-1a-102, that has its emergency warning lights operating, and that is being used to warn approaching motorists by either preceding or following a slow or oversized vehicle, object, or implement of husbandry being moved on the highway.
(2) An implement of husbandry being moved on a highway shall be accompanied by:
(a) front and rear escort vehicles when the implement of husbandry is 16 feet in width or greater unless the implement of husbandry is moved by a farmer or rancher or his employees in connection with an agricultural operation; or
(b) one or more escort vehicles when the implement of husbandry is traveling on a highway where special hazards exist related to weather, pedestrians, other traffic, or highway conditions.
(3) In addition to the requirements of Subsection (2), a person may not move an implement of husbandry on a highway during hours of darkness without lights and reflectors as required under Section 41-6a-1608 or 41-6a-1609.
(4) (a) Except for an implement of husbandry moved by a farmer or rancher or the farmer's or rancher's employees in connection with an agricultural operation, a person may not move an implement of husbandry on the highway without:
(i) an oversize permit obtained under Section 72-7-406 if required;
(ii) trained escort vehicle drivers and approved escort vehicles when required under Subsection (2); and
(iii) compliance with the vehicle weight requirements of Section 72-7-404.
(b) (i) The department shall issue an annual oversize permit for the purpose of allowing the movement of implements of husbandry on the highways in accordance with this chapter.
(ii) The permit shall require the applicant to obtain verbal permission from the department for each trip involving the movement of an implement of husbandry 16 feet or greater in width.
(c) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules specifying training for escort vehicle drivers and equipment requirements for escort vehicles as provided in Subsection (4)(a).
(5) Any person who violates this section is guilty of a class B misdemeanor.
Section 2139. Section 72-7-504 is amended to read:
72-7-504
. Advertising prohibited near interstate or primary system -- Exceptions -- Logo advertising -- Department rules.(1) Outdoor advertising that is capable of being read or comprehended from any place on the main-traveled way of an interstate or primary system may not be erected or maintained, except:
(a) directional and other official signs and notices authorized or required by law, including signs and notices pertaining to natural wonders and scenic and historic attractions, informational or directional signs regarding utility service, emergency telephone signs, buried or underground utility markers, and above ground utility closure signs;
(b) signs advertising the sale or lease of property upon which they are located;
(c) signs advertising activities conducted on the property where they are located, including signs on the premises of a public assembly facility as provided in Section 72-7-504.5;
(d) signs located in a commercial or industrial zone;
(e) signs located in unzoned industrial or commercial areas as determined from actual land uses; and
(f) logo advertising under Subsection (2).
(2) (a) The department may itself or by contract erect, administer, and maintain informational signs on the main-traveled way of an interstate or primary system for the display of logo advertising and information of interest to the traveling public if:
(i) the department complies with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, in the lease or other contract agreement with a private party for the sign or sign space; and
(ii) the private party for the lease of the sign or sign space pays an amount set by the department to be paid to the department or the party under contract with the department under this Subsection (2).
(b) The amount shall be sufficient to cover the costs of erecting, administering, and maintaining the signs or sign spaces.
(c) The department may consult the Governor's Office of Economic Development in carrying out this Subsection (2).
(3) (a) Revenue generated under Subsection (2) shall be:
(i) applied first to cover department costs under Subsection (2); and
(ii) deposited in the Transportation Fund.
(b) Revenue in excess of costs under Subsection (2)(a) shall be deposited in the General Fund as a dedicated credit for use by the Governor's Office of Economic Development no later than the following fiscal year.
(4) Outdoor advertising under Subsections (1)(a), (d), (e), and (f) shall conform to the rules made by the department under Sections 72-7-506 and 72-7-507.
Section 2140. Section 72-7-506 is amended to read:
72-7-506
. Advertising -- Regulatory power of department -- Notice requirements.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department may make rules no more restrictive than this chapter to:
(a) control the erection and maintenance of outdoor advertising along the interstate and primary highway systems;
(b) provide for enforcement of this chapter;
(c) establish the form, content, and submittal of applications to erect outdoor advertising; and
(d) establish administrative procedures.
(2) In addition to all other statutory notice requirements:
(a) the department shall give reasonably timely written notice to all outdoor advertising permit holders of any changes or proposed changes in administrative rules made under authority of this part; and
(b) any county, municipality, or governmental entity shall, upon written request, give reasonably timely written notice to all outdoor advertising permit holders within its jurisdiction of any change or proposed change to the outdoor or off-premise advertising provisions of its zoning provisions, codes, or ordinances.
Section 2141. Section 72-7-507 is amended to read:
72-7-507
. Advertising -- Permits -- Application requirements -- Duration -- Fees.(1) (a) Outdoor advertising may not be maintained without a current permit.
(b) Applications for permits shall be made to the department on forms furnished by it.
(c) A permit must be obtained prior to installing each outdoor sign.
(d) The application for a permit shall be accompanied by an initial fee established under Section [63-38-3.2] 63J-1-303.
(2) (a) Each permit issued by the department is valid for a period of up to five years and shall expire on June 30 of the fifth year of the permit, or upon the expiration or termination of the right to use the property, whichever is sooner.
(b) Upon renewal, each permit may be renewed for periods of up to five years upon the filing of a renewal application and payment of a renewal fee established under Section [63-38-3.2] 63J-1-303.
(3) Sign owners residing outside the state shall provide the department with a continuous performance bond in the amount of $2,500.
(4) Fees may not be prorated for fractions of the permit period. Advertising copy may be changed at any time without payment of an additional fee.
(5) (a) Each sign shall have its permit continuously affixed to the sign in a position visible from the nearest traveled portion of the highway.
(b) The permit shall be affixed to the sign structure within 30 days after delivery by the department to the permit holder, or within 30 days of the installation date of the sign structure.
(c) Construction of the sign structure shall begin within 180 days after delivery of the permit by the department to the permit holder and construction shall be completed within 365 days after delivery of the permit.
(6) The department may not accept any applications for a permit or issue any permit to erect or maintain outdoor advertising within 500 feet of a permitted sign location except to the permit holder or the permit holder’s assigns until the permit has expired or has been terminated pursuant to the procedures under Section 72-7-508.
(7) Permits are transferrable if the ownership of the permitted sign is transferred.
(8) Conforming, permitted sign structures may be altered, changed, remodeled, and relocated subject to the provisions of Subsection (6).
Section 2142. Section 72-7-508 is amended to read:
72-7-508
. Unlawful outdoor advertising -- Adjudicative proceedings -- Judicial review -- Costs of removal -- Civil and criminal liability for damaging regulated signs -- Immunity for Department of Transportation.(1) Outdoor advertising is unlawful when:
(a) erected after May 9, 1967, contrary to the provisions of this chapter;
(b) a permit is not obtained as required by this part;
(c) a false or misleading statement has been made in the application for a permit that was material to obtaining the permit; or
(d) the sign for which a permit was issued is not in a reasonable state of repair, is unsafe, or is otherwise in violation of this part.
(2) The establishment, operation, repair, maintenance, or alteration of any sign contrary to this chapter is also a public nuisance.
(3) Except as provided in Subsection (4), in its enforcement of this section, the department shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(4) (a) The district courts shall have jurisdiction to review by trial de novo all final orders of the department under this part resulting from formal and informal adjudicative proceedings.
(b) Venue for judicial review of final orders of the department shall be in the county in which the sign is located.
(5) If the department is granted a judgment, the department is entitled to have any nuisance abated and recover from the responsible person, firm, or corporation, jointly and severally:
(a) the costs and expenses incurred in removing the sign; and
(b) $100 for each day the sign was maintained following the expiration of ten days after notice of agency action was filed and served under Section [63-46b-3] 63G-4-201.
(6) (a) Any person, partnership, firm, or corporation who vandalizes, damages, defaces, destroys, or uses any sign controlled under this chapter without the owner's permission is liable to the owner of the sign for treble the amount of damage sustained and all costs of court, including a reasonable attorney's fee, and is guilty of a class C misdemeanor.
(b) This Subsection (6) does not apply to the department, its agents, or employees if acting to enforce this part.
Section 2143. Section 72-9-103 is amended to read:
72-9-103
. Rulemaking -- Adjudicative proceedings.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules:
(a) adopting by reference in whole or in part the Federal Motor Carrier Safety Regulations including minimum security requirements for motor carriers;
(b) specifying the equipment required to be carried in each tow truck, including limits on loads that may be moved based on equipment capacity and load weight;
(c) specifying collection procedures, in conjunction with the administration and enforcement of the safety or security requirements, for the motor carrier fee under Section 72-9-706; and
(d) providing for the necessary administration and enforcement of this chapter.
(2) The department shall comply with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 2144. Section 72-9-502 is amended to read:
72-9-502
. Motor vehicles to stop at ports-of-entry -- Signs -- Exceptions -- Rulemaking -- By-pass permits.(1) Except under Subsection (3), a motor carrier operating a motor vehicle with a gross vehicle weight of 10,001 pounds or more or any motor vehicle carrying livestock as defined in Section 4-24-2 shall stop at a port-of-entry as required under this section.
(2) The department may erect and maintain signs directing motor vehicles to a port-of-entry as provided in this section.
(3) A motor vehicle required to stop at a port-of-entry under Subsection (1) is exempt from this section if:
(a) the total one-way trip distance for the motor vehicle would be increased by more than 5% or three miles, whichever is greater if diverted to a port-of-entry; or
(b) the motor vehicle is operating under a temporary port-of-entry by-pass permit issued under Subsection (4).
(4) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules for the issuance of a temporary port-of-entry by-pass permit exempting a motor vehicle from the provisions of Subsection (1) if the department determines that the permit is needed to accommodate highway transportation needs due to multiple daily or weekly trips in the proximity of a port-of-entry.
(b) The rules under Subsection (4)(a) shall provide that one permit may be issued to a motor carrier for multiple motor vehicles.
Section 2145. Section 72-9-602 is amended to read:
72-9-602
. Towing inspections, investigations, and certification -- Equipment requirements -- Consumer information.(1) (a) The department shall inspect, investigate, and certify tow truck motor carriers, tow trucks, and tow truck drivers to ensure compliance with this chapter and compliance with Sections 41-6a-1406 and 41-6a-1407.
(b) The inspection, investigation, and certification shall be conducted prior to any tow truck operation and at least every two years thereafter.
(c) (i) The department shall issue an authorized towing certificate for each tow truck motor carrier, tow truck, and driver that complies with this part.
(ii) The certificate shall expire two years from the month of issuance.
(d) The department may charge a biennial fee established under Section [63-38-3.2] 63J-1-303 to cover the cost of the inspection, investigation, and certification required under this part.
(2) The department shall make consumer protection information available to the public that may use a tow truck motor carrier.
Section 2146. Section 72-9-603 is amended to read:
72-9-603
. Towing notice requirements -- Cost responsibilities -- Abandoned vehicle title restrictions -- Rules for maximum rates and certification.(1) Except for tow truck service that was ordered by a peace officer, or a person acting on behalf of a law enforcement agency, or a highway authority, as defined in Section 72-1-102, after performing a tow truck service that is being done without the vehicle, vessel, or outboard motor owner's knowledge, the tow truck operator or the tow truck motor carrier shall:
(a) immediately upon arriving at the place of storage or impound of the vehicle, vessel, or outboard motor, contact the law enforcement agency having jurisdiction over the area where the vehicle, vessel, or outboard motor was picked up and notify the agency of the:
(i) location of the vehicle, vessel, or outboard motor;
(ii) date, time, and location from which the vehicle, vessel, or outboard motor was removed;
(iii) reasons for the removal of the vehicle, vessel, or outboard motor;
(iv) person who requested the removal of the vehicle, vessel, or outboard motor; and
(v) vehicle, vessel, or outboard motor's description, including its identification number and license number or other identification number issued by a state agency; and
(b) within two business days of performing the tow truck service, send a certified letter to the last-known address of the registered owner and lien holder of the vehicle, vessel, or outboard motor obtained from the Motor Vehicle Division or if the person has actual knowledge of the owner's address to the current address, notifying him of the:
(i) location of the vehicle, vessel, or outboard motor;
(ii) date, time, location from which the vehicle, vessel, or outboard motor was removed;
(iii) reasons for the removal of the vehicle, vessel, or outboard motor;
(iv) person who requested the removal of the vehicle, vessel, or outboard motor;
(v) a description, including its identification number and license number or other identification number issued by a state agency; and
(vi) costs and procedures to retrieve the vehicle, vessel, or outboard motor.
(2) Until the tow truck operator or tow truck motor carrier reports the removal as required under Subsection (1)(a), a tow truck motor carrier or impound yard may not:
(a) collect any fee associated with the removal; and
(b) begin charging storage fees.
(3) The owner of a vehicle, vessel, or outboard motor lawfully removed is only responsible for paying:
(a) the tow truck service and storage fees set in accordance with Subsection (7); and
(b) the administrative impound fee set in Section 41-6a-1406, if applicable.
(4) The fees under Subsection (3) are a possessory lien on the vehicle, vessel, or outboard motor until paid.
(5) A person may not request a transfer of title to an abandoned vehicle until at least 30 days after notice has been sent under Subsection (1)(b).
(6) A tow truck motor carrier or impound yard shall clearly and conspicuously post and disclose all its current fees and rates for tow truck service and storage of a vehicle in accordance with rules established under Subsection (7).
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Department of Transportation shall:
(a) set maximum rates that:
(i) tow truck motor carriers may charge for the tow truck service of a vehicle, vessel, or outboard motor that are transported in response to:
(A) a peace officer dispatch call;
(B) a motor vehicle division call; and
(C) any other call where the owner of the vehicle, vessel, or outboard motor has not consented to the removal; and
(ii) impound yards may charge for the storage of a vehicle, vessel, or outboard motor stored as a result of one of the conditions listed under Subsection (7)(a)(i);
(b) establish authorized towing certification requirements, not in conflict with federal law, related to incident safety, clean-up, and hazardous material handling; and
(c) specify the form and content of the posting and disclosure of fees and rates charged by a tow truck motor carrier or impound yard.
Section 2147. Section 72-10-103 is amended to read:
72-10-103
. Rulemaking requirement.(1) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules:
(a) governing the establishment, location, and use of air navigation facilities;
(b) regulating the use, licensing, and supervision of airports;
(c) establishing minimum standards with which all air navigation facilities, flying clubs, aircraft, gliders, pilots, and airports must comply; and
(d) safeguarding from accident and protecting the safety of persons operating or using aircraft and persons and property on the ground.
(2) The rules may:
(a) require that any device or accessory that forms part of any aircraft or its equipment be certified as complying with this chapter;
(b) limit the use of any device or accessory as necessary for safety; and
(c) develop and promote aeronautics within this state.
(3) (a) To avoid the danger of accident incident to confusion arising from conflicting rules governing aeronautics, the rules shall conform as nearly as possible with federal legislation, rules, regulations, and orders on aeronautics.
(b) The rules may not be inconsistent with paramount federal legislation, rules, regulations, and orders on the subject.
(4) The department may not require any pilot, aircraft, or mechanic who has procured a license under the Civil Aeronautics Authority of the United States to obtain a license from this state, other than required by this chapter.
(5) The department may not make rules that conflict with the regulations of:
(a) the Civil Aeronautics Authority; or
(b) other federal agencies authorized to regulate the particular activity.
(6) All schedules of charges, tolls, and fees established by the division shall be approved and adopted by the department.
(7) The department shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 2148. Section 72-10-107 is amended to read:
72-10-107
. Procedures -- Adjudicative proceedings.The division shall conduct adjudicative proceedings in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 2149. Section 72-10-116 is amended to read:
72-10-116
. Airport license required -- Issuance by division -- Restrictions on use of lands or waters of another -- Annual fee.(1) (a) An airport open to public use may not be used or operated unless it is duly licensed by the division.
(b) Any person who owns or operates an airport open to public use shall file an application with the division for a license for the facility.
(2) (a) A license shall be granted whenever it is reasonably necessary for the accommodation and convenience of the public and may be granted in other cases in the discretion of the division.
(b) The division may not issue a license if the division finds that the facility is not constructed, equipped, and operated in accordance with the standards set by the department.
(3) (a) The landing or taking off of aircraft on or from the lands or waters of another without consent is unlawful, except in the case of a forced landing.
(b) For damages caused by a takeoff or landing, the owner, lessee of the aircraft, operator, or any of them is liable.
(4) (a) A student pilot may not land on any area without the knowledge of the operator, instructor, or school from which the student is flying.
(b) The use of private landing fields must not impose a hazard upon the person or property of others.
(5) A certificate of registration is not required of, and the rules made under this title do not apply to an airport owned or operated by the government of the United States.
(6) The division, with the approval of the commission, may charge a fee determined by the division pursuant to Section [63-38-3.2] 63J-1-303 for the issuance of an annual airport license.
Section 2150. Section 72-10-117 is amended to read:
72-10-117
. Aircraft landing permits -- Eligible aircraft -- Special licenses -- Rules -- Proof of insurance -- Bonds.(1) (a) The county executive of any county may issue permits authorizing aircraft to land on or take off from designated county roads.
(b) Permits may be issued to aircraft operated:
(i) as air ambulances;
(ii) as pesticide applicators; or
(iii) by or under contract with public utilities and used in connection with inspection, maintenance, installation, operation, construction, or repair of property owned or operated by the public utility.
(2) Permits may also be issued by the county executive to other aircraft under rules made by the division.
(3) (a) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules for issuing a special license to:
(i) an aircraft permitted by a county executive to land on a county road; and
(ii) a pilot permitted to operate an aircraft licensed under this subsection from a county road.
(b) The rules made under this subsection shall include provisions for the safety of the flying and motoring public.
(4) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules for the landing and taking off of aircraft to which permits have been issued, which may include annual reports of activities of the aircraft.
(5) Prior to obtaining a permit or license to any aircraft, the applicant shall file with the county executive and the division a certificate of insurance executed by an insurance company or association authorized to transact business in this state upon a form prescribed by the division that there is in full force and effect a policy of insurance covering the aircraft for liability against:
(a) personal injury or death for any one person in an amount of $50,000 or more;
(b) any one accident in an amount of $100,000 or more; and
(c) property damage in an amount of $50,000 or more.
(6) In addition to the insurance required under this section, either the county executive or the division may require the posting of a bond to indemnify the county or division against liability resulting from issuing the permit or license.
Section 2151. Section 72-11-203 is amended to read:
72-11-203
. Procedures -- Adjudicative proceedings.The committee shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
Section 2152. Section 72-11-208 is amended to read:
72-11-208
. Passenger ropeways -- Registration fee.The application for registration, or supplemental application, shall be accompanied by an annual fee adopted by the committee in accordance with Section [63-38-3.2] 63J-1-303.
Section 2153. Section 72-11-210 is amended to read:
72-11-210
. Passenger ropeways -- Additional powers and duties of committee.The committee may:
(1) in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules establishing:
(a) public safety in the design, construction, and operation of passenger ropeways that:
(i) adopt the American National Standard for Passenger Ropeways;
(ii) modify the standard under Subsection (1)(a)(i); or
(iii) establish an equivalent standard; and
(b) the annual registration date;
(2) hold hearings and take evidence in all matters relating to the exercise and performance of the powers and duties vested in the committee;
(3) subpoena witnesses;
(4) administer oaths;
(5) compel the testimony of witnesses and the production of books, papers, and records relevant to any inquiry;
(6) approve, deny, revoke, and renew the registrations provided for in this chapter;
(7) cause the prosecution and enjoinder of all persons violating the provisions of this chapter and incur the necessary expenses;
(8) elect officers and adopt a seal which may be affixed to all registrations issued by the committee; and
(9) employ, within the funds available, and prescribe the duties of a secretary and other personnel as the committee considers necessary.
Section 2154. Section 73-1-4 is amended to read:
73-1-4
. Reversion to the public by abandonment or forfeiture for nonuse within five years -- Extension of time.(1) (a) In order to further the state policy of securing the maximum use and benefit of its scarce water resources, a person entitled to the use of water has a continuing obligation to place all of a water right to beneficial use.
(b) The forfeiture of all or part of any right to use water for failure to place all or part of the water to beneficial use makes possible the allocation and use of water consistent with long established beneficial use concepts.
(c) The provisions of Subsections (2) through (6) shall be construed to carry out the purposes and policies set forth in this Subsection (1).
(2) As used in this section, "public water supply entity" means an entity that supplies water as a utility service or for irrigation purposes and is also:
(a) a municipality, water conservancy district, metropolitan water district, irrigation district, or other public agency;
(b) a water company regulated by the Public Service Commission; or
(c) any other owner of a community water system.
(3) (a) When an appropriator or the appropriator’s successor in interest abandons or ceases to use all or a portion of a water right for a period of five years, the water right or the unused portion of that water right ceases and the water reverts to the public, unless, before the expiration of the five-year period, the appropriator or the appropriator’s successor in interest files a verified nonuse application with the state engineer.
(b) (i) A nonuse application may be filed on all or a portion of the water right, including water rights held by mutual irrigation companies.
(ii) Public water supply entities that own stock in a mutual water company, after giving written notice to the water company, may file nonuse applications with the state engineer on the water represented by the stock.
(c) (i) A water right or a portion of the water right may not be forfeited unless a judicial action to declare the right forfeited is commenced within 15 years from the end of the latest period of nonuse of at least five years.
(ii) If forfeiture is asserted in an action for general determination of rights in conformance with the provisions of Chapter 4, Determination of Water Rights, the 15-year limitation period shall commence to run back in time from the date the state engineer’s proposed determination of rights is served upon each claimant.
(iii) A decree entered in an action for general determination of rights under Chapter 4, Determination of Water Rights, shall bar any claim of forfeiture for prior nonuse against any right determined to be valid in the decree, but shall not bar a claim for periods of nonuse that occur after the entry of the decree.
(iv) A proposed determination by the state engineer in an action for general determination of rights under Chapter 4, Determination of Water Rights, shall bar any claim of forfeiture for prior nonuse against any right proposed to be valid, unless a timely objection has been filed within the time allowed in Chapter 4, Determination of Water Rights.
(d) The extension of time to resume the use of that water may not exceed five years unless the time is further extended by the state engineer.
(e) The provisions of this section are applicable whether the unused or abandoned water or a portion of the water is permitted to run to waste or is used by others without right with the knowledge of the water right holder, provided that the use of water pursuant to a lease or other agreement with the appropriator or the appropriator's successor shall be considered to constitute beneficial use.
(f) The provisions of this section shall not apply:
(i) to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought;
(ii) to water stored in reservoirs pursuant to an existing water right, where the stored water is being held in storage for present or future use; or
(iii) when a water user has beneficially used substantially all of a water right within a five-year period, provided that this exemption shall not apply to the adjudication of a water right in a general determination of water rights under Chapter 4, Determination of Water Rights.
(g) Groundwater rights used to supplement the quantity or quality of other water supplies may not be subject to loss or reduction under this section if not used during periods when the other water source delivers sufficient water so as to not require use of the supplemental groundwater.
(4) (a) The state engineer shall furnish an application requiring the following information:
(i) the name and address of the applicant;
(ii) a description of the water right or a portion of the water right, including the point of diversion, place of use, and priority;
(iii) the date the water was last diverted and placed to beneficial use;
(iv) the quantity of water;
(v) the period of use;
(vi) the extension of time applied for;
(vii) a statement of the reason for the nonuse of the water; and
(viii) any other information that the state engineer requires.
(b) Filing the application extends the time during which nonuse may continue until the state engineer issues his order on the nonuse application.
(c) (i) Upon receipt of the application, the state engineer shall publish a notice of the application once a week for two successive weeks in a newspaper of general circulation in the county in which the source of the water supply is located and where the water is to be used.
(ii) The notice shall:
(A) state that an application has been made; and
(B) specify where the interested party may obtain additional information relating to the application.
(d) Any interested person may file a written protest with the state engineer against the granting of the application:
(i) within 20 days after the notice is published, if the adjudicative proceeding is informal; and
(ii) within 30 days after the notice is published, if the adjudicative proceeding is formal.
(e) In any proceedings to determine whether the application for extension should be approved or rejected, the state engineer shall follow the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(f) After further investigation, the state engineer may approve or reject the application.
(5) (a) Nonuse applications on all or a portion of a water right shall be granted by the state engineer for periods not exceeding five years each, upon a showing of reasonable cause for nonuse.
(b) Reasonable causes for nonuse include:
(i) demonstrable financial hardship or economic depression;
(ii) the initiation of recognized water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any public water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan;
(vi) situations where all or part of the land on which water is used is contracted under an approved state agreement or federal conservation fallowing program;
(vii) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment; or
(viii) any other reasonable cause.
(6) (a) Sixty days before the expiration of any extension of time, the state engineer shall notify the applicant by mail or by any form of electronic communication through which receipt is verifiable, of the date when the extension period will expire.
(b) Before the date of expiration, the applicant shall either:
(i) file a verified statement with the state engineer setting forth the date on which use of the water was resumed, and whatever additional information is required by the state engineer; or
(ii) apply for a further extension of time in which to resume use of the water according to the procedures and requirements of this section.
(c) Upon receipt of the applicant's properly completed, verified statement, the state engineer shall conduct investigations necessary to verify that beneficial use has resumed and, if so, shall issue a certificate of resumption of use of the water as evidenced by the resumed beneficial use.
(7) The appropriator’s water right or a portion of the water right ceases and the water reverts to the public if the:
(a) appropriator or the appropriator’s successor in interest fails to apply for an extension of time;
(b) state engineer denies the nonuse application; or
(c) appropriator or the appropriator’s successor in interest fails to apply for a further extension of time.
Section 2155. Section 73-2-1 is amended to read:
73-2-1
. State engineer -- Term -- Powers and duties -- Qualification for duties.(1) There shall be a state engineer.
(2) The state engineer shall:
(a) be appointed by the governor with the consent of the Senate;
(b) hold office for the term of four years and until a successor is appointed; and
(c) have five years experience as a practical engineer or the theoretical knowledge, practical experience, and skill necessary for the position.
(3) (a) The state engineer shall be responsible for the general administrative supervision of the waters of the state and the measurement, appropriation, apportionment, and distribution of those waters.
(b) The state engineer may secure the equitable apportionment and distribution of the water according to the respective rights of appropriators.
(4) The state engineer shall make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title, regarding:
(a) reports of water right conveyances;
(b) the construction of water wells and the licensing of water well drillers;
(c) dam construction and safety;
(d) the alteration of natural streams;
(e) sewage effluent reuse;
(f) geothermal resource conservation; and
(g) enforcement orders and the imposition of fines and penalties.
(5) The state engineer may make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title, governing:
(a) water distribution systems and water commissioners;
(b) water measurement and reporting;
(c) ground-water recharge and recovery;
(d) the determination of water rights; and
(e) the form and content of applications and related documents, maps, and reports.
(6) The state engineer may bring suit in courts of competent jurisdiction to:
(a) enjoin the unlawful appropriation, diversion, and use of surface and underground water without first seeking redress through the administrative process;
(b) prevent theft, waste, loss, or pollution of those waters;
(c) enable him to carry out the duties of his office; and
(d) enforce administrative orders and collect fines and penalties.
(7) The state engineer may:
(a) upon request from the board of trustees of an irrigation district under Title 17B, Chapter 2a, Part 5, Irrigation District Act, or another local district under Title 17B, Limited Purpose Local Government Entities - Local Districts, or a special service district under Title 17A, Chapter 2, Part 13, Utah Special Service District Act, that operates an irrigation water system, cause a water survey to be made of all lands proposed to be annexed to the district in order to determine and allot the maximum amount of water that could be beneficially used on the land, with a separate survey and allotment being made for each 40-acre or smaller tract in separate ownership; and
(b) upon completion of the survey and allotment under Subsection (7)(a), file with the district board a return of the survey and report of the allotment.
(8) (a) The state engineer may establish water distribution systems and define their boundaries.
(b) The water distribution systems shall be formed in a manner that:
(i) secures the best protection to the water claimants; and
(ii) is the most economical for the state to supervise.
Section 2156. Section 73-2-1.5 is amended to read:
73-2-1.5
. Procedures -- Adjudicative proceedings.Except as provided in Sections [63-46b-1] 63G-4-102 and 73-2-25, the state engineer and the Division of Water Rights shall comply with the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.
Section 2157. Section 73-2-14 is amended to read:
73-2-14
. Fees of state engineer -- Deposited as a dedicated credit.(1) The state engineer shall charge fees pursuant to Section [63-38-3.2] 63J-1-303 for the following:
(a) applications to appropriate water;
(b) applications to temporarily appropriate water;
(c) applications for permanent or temporary change;
(d) applications for exchange;
(e) applications for an extension of time in which to resume use of water;
(f) applications to appropriate water, or make a permanent or temporary change, for use outside the state filed pursuant to Title 73, Chapter 3a, Water Exports;
(g) groundwater recovery permits;
(h) diligence claims for surface or underground water filed pursuant to Section 73-5-13;
(i) republication of notice to water users after amendment of application where required by this title;
(j) applications to segregate;
(k) requests for an extension of time in which to submit proof of appropriation not to exceed 14 years after the date of approval of the application;
(l) requests for an extension of time in which to submit proof of appropriation 14 years or more after the date of approval of the application;
(m) groundwater recharge permits;
(n) applications for a well driller's license, annual renewal of a well driller's license, and late annual renewal of a well driller's license;
(o) certification of copies;
(p) preparing copies of documents; and
(q) reports of water right conveyance.
(2) Fees for the services specified in Subsections (1)(a) through (i) shall be based upon the rate of flow or volume of water. If it is proposed to appropriate by both direct flow and storage, the fee shall be based upon either the rate of flow or annual volume of water stored, whichever fee is greater.
(3) Fees collected under this section:
(a) shall be deposited in the General Fund as a dedicated credit to be used by the Division of Water Rights; and
(b) may only be used by the Division of Water Rights to:
(i) meet the publication of notice requirements under this title; and
(ii) process reports of water right conveyance.
Section 2158. Section 73-2-25 is amended to read:
73-2-25
. State engineer enforcement powers.(1) For purposes of this section, "initial order" means one of the following issued by the state engineer:
(a) a notice of violation; or
(b) a cease and desist order.
(2) (a) The state engineer may commence an enforcement action under this section if the state engineer finds that a person:
(i) is diverting, impounding, or using water for which no water right has been established;
(ii) is diverting, impounding, or using water in violation of an existing water right;
(iii) violates Section 73-5-4;
(iv) violates Section 73-5-9;
(v) violates a written distribution order from the state engineer;
(vi) violates an order issued under Section 73-3-29 regarding the alteration of the bed or bank of a natural stream channel; or
(vii) violates a notice or order regarding dam safety issued under Chapter 5a, Dam Safety.
(b) To commence an enforcement action under this section, the state engineer shall issue an initial order, which shall include:
(i) a description of the violation;
(ii) notice of any penalties to which a person may be subject under Section 73-2-26; and
(iii) notice that the state engineer may treat each day's violation of the provisions listed in Subsection (2)(a) as a separate violation under Subsection 73-2-26(1)(d).
(c) The state engineer's issuance and enforcement of an initial order is exempt from [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(3) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the state engineer shall make rules necessary to enforce an initial order, which shall include:
(a) provisions consistent with this section and Section 73-2-26 for enforcement of the initial order if a person to whom an initial order is issued fails to respond to the order or abate the violation;
(b) the right to a hearing, upon request by a person against whom an initial order is issued; and
(c) provisions for timely issuance of a final order after:
(i) the person to whom the initial order is issued fails to respond to the order or abate the violation; or
(ii) a hearing held under Subsection (3)(b).
(4) A person may not intervene in an enforcement action commenced under this section.
(5) After issuance of a final order under rules made pursuant to Subsection (3)(c), the state engineer shall serve a copy of the final order on the person against whom the order is issued by:
(a) personal service under Utah Rules of Civil Procedure 5; or
(b) certified mail.
(6) (a) The state engineer's final order may be reviewed by trial de novo by the district court in:
(i) Salt Lake County; or
(ii) the county where the violation occurred.
(b) A person shall file a petition for judicial review of the state engineer's final order issued under this section within 20 days from the day on which the final order was served on that person.
(7) The state engineer may bring suit in a court of competent jurisdiction to enforce a final order issued under this section.
(8) If the state engineer prevails in an action brought under Subsection (6)(b) or (7), the state may recover all court costs and a reasonable attorney fee.
Section 2159. Section 73-3-14 is amended to read:
73-3-14
. Judicial review -- State engineer as defendant.(1) (a) Any person aggrieved by an order of the state engineer may obtain judicial review by following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) Venue for judicial review of informal adjudicative proceedings shall be in the county in which the stream or water source, or some part of it, is located.
(2) The state engineer shall be joined as a defendant in all suits to review his decisions, but no judgment for costs or expenses of the litigation may be rendered against him.
Section 2160. Section 73-3-25 is amended to read:
73-3-25
. Well driller's license -- Bond -- Revocation or suspension for noncompliance.(1) (a) Every person that constructs a well in the state shall obtain a license from the state engineer.
(b) The state engineer shall enact rules defining the form, the expiration date, and the renewal cycle of the application for a license.
(c) Well drillers' licenses are not transferable. The state engineer shall enact rules for well construction according to the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) (a) (i) A person who constructs a well in this state must first obtain a license as provided in this section.
(ii) Before a well driller's license will be issued, the applicant must file a well driller bond with the state engineer.
(iii) The bond shall be made payable to the Office of the State Engineer.
(iv) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the state engineer may make rules to set the amount, form, and general administrative requirements of a well driller bond. Proper compliance with the provisions of this section and the rules enacted under the authority of this section are required to obtain or renew a license.
(b) (i) Well drillers shall comply with the rules enacted by the state engineer under this chapter.
(ii) If the state engineer determines, following an investigation, that the licensee has failed to comply with these rules, the state engineer may revoke or suspend the license, and exact the bond and deposit the money as a nonlapsing dedicated credit.
(iii) The state engineer may expend the funds to investigate or correct any deficiencies which could adversely affect the public interest resulting from noncompliance with the rules promulgated under this chapter by any well driller.
(iv) The state engineer may refuse to issue a license to a well driller if it appears that there has been a violation of the rules or a failure to comply with Section 73-3-22.
Section 2161. Section 73-3-29 is amended to read:
73-3-29
. Relocation of natural streams -- Written permit required -- Emergency work -- Violations.(1) Except as provided in Subsection (2), a state agency, county, city, corporation, or person may not relocate any natural stream channel or alter the beds and banks of any natural stream without first obtaining the written approval of the state engineer.
(2) (a) The state engineer may issue an emergency permit or order to relocate a natural stream channel or alter the beds and banks of a natural stream as provided by this Subsection (2) and Section [63-46b-20] 63G-4-502.
(b) If an emergency situation arises which involves immediate or actual flooding and threatens injury or damage to persons or property, steps reasonably necessary to alleviate or mitigate the threat may be taken before a written permit is issued subject to the requirements of this section.
(c) (i) If the threat occurs during normal working hours, the state engineer or his representative must be notified immediately of the threat. After receiving notification of the threat, the state engineer or his representative may orally approve action to alleviate or mitigate the threat.
(ii) If the threat does not occur during normal working hours, action may be taken to alleviate or mitigate the threat and the state engineer or his representative shall be notified of the action taken on the first working day following the work.
(d) A written application outlining the action taken or the action proposed to be taken to alleviate or mitigate the threat shall be submitted to the state engineer within two working days following notification of the threat to the state engineer or his representative.
(e) (i) The state engineer shall inspect in a timely manner the site where the emergency action was taken.
(ii) After inspection, additional requirements, including mitigation measures, may be imposed.
(f) Adjudicative proceedings following the emergency work shall be informal unless otherwise designated by the state engineer.
(3) An application to relocate any natural stream channel or alter the beds and banks of any natural stream shall be in writing and shall contain the following:
(a) the name and address of the applicant;
(b) a complete and detailed statement of the location, nature, and type of relocation or alteration;
(c) the methods to be employed;
(d) the purposes of the application; and
(e) any additional information that the state engineer considers necessary, including, but not limited to, plans and specifications of the proposed construction of works.
(4) (a) The state engineer shall, without undue delay, conduct investigations that may be reasonably necessary to determine whether the proposed relocation or alteration will:
(i) impair vested water rights;
(ii) unreasonably or unnecessarily affect any recreational use or the natural stream environment;
(iii) unreasonably or unnecessarily endanger aquatic wildlife; or
(iv) unreasonably or unnecessarily diminish the natural channel's ability to conduct high flows.
(b) The application shall be approved unless the proposed relocation or alteration will:
(i) impair vested water rights;
(ii) unreasonably or unnecessarily adversely affect any public recreational use or the natural stream environment;
(iii) unreasonably or unnecessarily endanger aquatic wildlife; or
(iv) unreasonably or unnecessarily diminish the natural channel's ability to conduct high flows.
(c) The state engineer may approve the application, in whole or in part, with any reasonable terms to protect vested water rights, any public recreational use, the natural stream environment, or aquatic wildlife.
(5) No cost incurred by the applicant, including any cost incurred to comply with the terms imposed by the state engineer, is reimbursable by the Division of Water Rights.
(6) Except as provided in Subsection (2), a person who knowingly or intentionally relocates any natural stream channel, or alters the bed or bank of any natural stream channel without first obtaining the written approval of the state engineer is guilty of a crime punishable under Section 73-2-27.
Section 2162. Section 73-3a-104 is amended to read:
73-3a-104
. Rulemaking power of state engineer.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the state engineer may make rules necessary to administer this chapter.
Section 2163. Section 73-3a-105 is amended to read:
73-3a-105
. Procedures -- Adjudicative proceedings.(1) Except where inconsistent with the provisions of this chapter, the procedures to be followed by the state engineer in processing and considering applications filed under this chapter, and the rights and duties of the applicants, are the same as the procedures, rights, and duties specified in Title 73, Chapter 3, relating to appropriations of water or changes in the point of diversion, place of use, or purpose of use of water.
(2) Adjudicative proceedings relating to applications made under this chapter shall be conducted in accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
Section 2164. Section 73-3b-104 is amended to read:
73-3b-104
. Rulemaking power of state engineer.The state engineer may make rules to administer this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2165. Section 73-3b-105 is amended to read:
73-3b-105
. Administrative procedures.The administrative procedures applicable to the issuance, modification, suspension, or revocation of recharge and recovery permits are those set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and Sections 73-3-6, 73-3-7, 73-3-14, and 73-3-15.
Section 2166. Section 73-3b-201 is amended to read:
73-3b-201
. Application for a recharge permit -- Required information -- Filing fee.(1) The application for obtaining a groundwater recharge permit shall include the following information:
(a) the name and mailing address of the applicant;
(b) the name of the groundwater basin or groundwater sub-basin in which the applicant proposes to operate the project;
(c) the name and mailing address of the owner of the land on which the applicant proposes to operate the project;
(d) a legal description of the location of the proposed project;
(e) the source and annual quantity of water proposed to be stored underground;
(f) evidence of a water right or an agreement to use the water proposed to be stored underground;
(g) the quality of the water proposed to be stored underground and the water quality of the receiving groundwater aquifer;
(h) evidence that the applicant has applied for all applicable water quality permits;
(i) a plan of operation for the proposed recharge and recovery project which shall include:
(i) a description of the proposed project;
(ii) its design capacity;
(iii) a detailed monitoring program; and
(iv) the proposed duration of the project;
(j) a copy of a study demonstrating;
(i) the area of hydrologic impact of the project;
(ii) that the project is hydrologically feasible;
(iii) that the project will not:
(A) cause unreasonable harm to land; or
(B) impair any existing water right within the area of hydrologic impact; and
(iv) the percentage of anticipated recoverable water;
(k) evidence of financial and technical capability; and
(l) any other information that the state engineer requires.
(2) (a) A filing fee must be submitted with the application.
(b) The state engineer shall establish the filing fee in accordance with Section [63-38-3.2] 63J-1-303.
Section 2167. Section 73-3b-204 is amended to read:
73-3b-204
. Application for a recovery permit -- Required information.(1) If a person intends to recharge and recover water, the recovery application and permit may be filed and processed with the groundwater recharge application and permit.
(2) The application for obtaining a recovery permit shall include the following information:
(a) the name and mailing address of the applicant;
(b) a legal description of the location of the existing well or proposed new well from which the applicant intends to recover stored water;
(c) a written consent from the owner of the recharge permit;
(d) the name and mailing address of the owner of the land from which the applicant proposes to recover stored water;
(e) the name or description of the artificially recharged groundwater aquifer which is the source of supply;
(f) the purpose for which the stored water will be recovered;
(g) the depth and diameter of the existing well or proposed new well;
(h) a legal description of the area where the stored water is proposed to be used;
(i) the design pumping capacity of the existing well or proposed new well; and
(j) any other information including maps, drawings, and data that the state engineer requires.
(3) (a) A filing fee must be submitted with the application.
(b) The state engineer shall establish the filing fee in accordance with Section [63-38-3.2] 63J-1-303.
Section 2168. Section 73-3b-302 is amended to read:
73-3b-302
. Fee.(1) The state engineer shall assess an annual fee, in accordance with Section [63-38-3.2] 63J-1-303, on each person who holds a groundwater recharge or recovery permit.
(2) The fee shall reflect the division's costs to administer and monitor groundwater recharge and recovery projects.
Section 2169. Section 73-3c-301 is amended to read:
73-3c-301
. Application to the Water Quality Board.(1) A public agency proposing a water reuse project shall apply to the Water Quality Board created by Section 19-1-106.
(2) The Water Quality Board may make rules, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, governing the consideration and approval of water reuse applications and administration of water reuse construction and operating permits.
(3) Rules created under Subsection (2) shall require that water reuse meet standards and requirements for water quality set by the Water Quality Board in accordance with Title 19, Chapter 5, Water Quality Act.
(4) The Water Quality Board shall issue a written decision for each water reuse application.
Section 2170. Section 73-3c-302 is amended to read:
73-3c-302
. Application to the state engineer.(1) A public agency proposing water reuse shall apply to the state engineer.
(2) An application for water reuse under Subsection (1) shall be made upon forms furnished by the state engineer and shall include:
(a) the name of the applicant;
(b) a description of the underlying water right;
(c) an evaluation of the underlying water right's diversion, depletion, and return flow requirements;
(d) the estimated quantity of water to be reused;
(e) the location of the POTW;
(f) the place, purpose, and extent of the proposed water reuse;
(g) an evaluation of depletion from the hydrologic system caused by the water reuse; and
(h) any other information consistent with this chapter that is requested by the state engineer.
(3) An application under Subsection (1) shall include a copy of a reuse authorization contract for water reuse proposed by a public agency for any underlying water right not owned by the public agency.
(4) In considering an application for water reuse, the state engineer shall comply with:
(a) Section 73-3-6;
(b) Section 73-3-7;
(c) Section 73-3-10; and
(d) Section 73-3-14.
(5) In determining whether a proposed water reuse is consistent with the underlying water right, the state engineer shall conclude that a proposed water reuse is consistent with the underlying water right if:
(a) the use of the reuse water does not enlarge the underlying water right; and
(b) any return flow requirement of the underlying water right is satisfied.
(6) (a) The state engineer shall approve a water reuse application if the state engineer concludes that the proposed water reuse is consistent with the underlying water right.
(b) The state engineer may:
(i) deny an application for water reuse if the proposed water reuse is inconsistent with the underlying water right; or
(ii) approve the application in part or with conditions to assure consistency with the underlying water right.
(7) A public agency with an approved reuse application shall submit a report, as directed by the state engineer, concerning the ongoing water reuse operation.
(8) The state engineer may make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement the provisions of this chapter.
Section 2171. Section 73-5-15 is amended to read:
73-5-15
. Groundwater management plan.(1) As used in this section:
(a) "Critical management area" means a groundwater basin in which the groundwater withdrawals consistently exceed the safe yield.
(b) "Safe yield" means the amount of groundwater that can be withdrawn from a groundwater basin over a period of time without exceeding the long-term recharge of the basin or unreasonably affecting the basin's physical and chemical integrity.
(2) (a) The state engineer may regulate groundwater withdrawals within a specific groundwater basin by adopting a groundwater management plan in accordance with this section for any groundwater basin or aquifer or combination of hydrologically connected groundwater basins or aquifers.
(b) The objectives of a groundwater management plan are to:
(i) limit groundwater withdrawals to safe yield;
(ii) protect the physical integrity of the aquifer; and
(iii) protect water quality.
(c) The state engineer shall adopt a groundwater management plan for a groundwater basin if more than 1/3 of the water right owners in the groundwater basin request that the state engineer adopt a groundwater management plan.
(3) (a) In developing a groundwater management plan, the state engineer may consider:
(i) the hydrology of the groundwater basin;
(ii) the physical characteristics of the groundwater basin;
(iii) the relationship between surface water and groundwater, including whether the groundwater should be managed in conjunction with hydrologically connected surface waters;
(iv) the geographic spacing and location of groundwater withdrawals;
(v) water quality;
(vi) local well interference; and
(vii) other relevant factors.
(b) The state engineer shall base the provisions of a groundwater management plan on the principles of prior appropriation.
(c) (i) The state engineer shall use the best available scientific method to determine safe yield.
(ii) As hydrologic conditions change or additional information becomes available, safe yield determinations made by the state engineer may be revised by following the procedures listed in Subsection (5).
(4) (a) (i) Except as provided in Subsection (4)(b), the withdrawal of water from a groundwater basin shall be limited to the basin's safe yield.
(ii) Before limiting withdrawals in a groundwater basin to safe yield, the state engineer shall:
(A) determine the groundwater basin's safe yield; and
(B) adopt a groundwater management plan for the groundwater basin.
(iii) If the state engineer determines that groundwater withdrawals in a groundwater basin exceed the safe yield, the state engineer shall regulate groundwater rights in that groundwater basin based on the priority date of the water rights under the groundwater management plan, unless a voluntary arrangement exists under Subsection (4)(c) that requires a different distribution.
(b) When adopting a groundwater management plan for a critical management area, the state engineer shall, based on economic and other impacts to an individual water user or a local community caused by the implementation of safe yield limits on withdrawals, allow gradual implementation of the groundwater management plan.
(c) (i) In consultation with the state engineer, water users in a groundwater basin may agree to participate in a voluntary arrangement for managing withdrawals at any time, either before or after a determination that groundwater withdrawals exceed the groundwater basin's safe yield.
(ii) A voluntary arrangement under Subsection (4)(c)(i) shall be consistent with other law.
(iii) The adoption of a voluntary arrangement under this Subsection (4)(c) by less than all of the water users in a groundwater basin does not affect the rights of water users who do not agree to the voluntary arrangement.
(5) To adopt a groundwater management plan, the state engineer shall:
(a) give notice as specified in Subsection (7) at least 30 days before the first public meeting held in accordance with Subsection (5)(b):
(i) that the state engineer proposes to adopt a groundwater management plan;
(ii) describing generally the land area proposed to be included in the groundwater management plan; and
(iii) stating the location, date, and time of each public meeting to be held in accordance with Subsection (5)(b);
(b) hold one or more public meetings in the geographic area proposed to be included within the groundwater management plan to:
(i) address the need for a groundwater management plan;
(ii) present any data, studies, or reports that the state engineer intends to consider in preparing the groundwater management plan;
(iii) address safe yield and any other subject that may be included in the groundwater management plan;
(iv) outline the estimated administrative costs, if any, that groundwater users are likely to incur if the plan is adopted; and
(v) receive any public comments and other information presented at the public meeting, including comments from any of the entities listed in Subsection (7)(a)(iii);
(c) receive and consider written comments concerning the proposed groundwater management plan from any person for a period determined by the state engineer of not less than 60 days after the day on which the notice required by Subsection (5)(a) is given;
(d) (i) at least 60 days prior to final adoption of the groundwater management plan, publish notice:
(A) that a draft of the groundwater management plan has been proposed; and
(B) specifying where a copy of the draft plan may be reviewed; and
(ii) promptly provide a copy of the draft plan in printed or electronic form to each of the entities listed in Subsection (7)(a)(iii) that makes written request for a copy; and
(e) provide notice of the adoption of the groundwater management plan.
(6) A groundwater management plan shall become effective on the date notice of adoption is completed under Subsection (7), or on a later date if specified in the plan.
(7) (a) A notice required by this section shall be:
(i) published once a week for two successive weeks in a newspaper of general circulation in each county that encompasses a portion of the land area proposed to be included within the groundwater management plan;
(ii) published conspicuously on the state engineer's Internet website; and
(iii) mailed to each of the following that has within its boundaries a portion of the land area to be included within the proposed groundwater management plan:
(A) county;
(B) incorporated city or town;
(C) improvement district under Title 17B, Chapter 2a, Part 4, Improvement District Act;
(D) service area, under Title 17B, Chapter 2a, Part 9, Service Area Act;
(E) drainage district, under Title 17B, Chapter 2a, Part 2, Drainage District Act;
(F) irrigation district, under Title 17B, Chapter 2a, Part 5, Irrigation District Act;
(G) metropolitan water district, under Title 17B, Chapter 2a, Part 6, Metropolitan Water District Act;
(H) special service district providing water, sewer, drainage, or flood control services, under Title 17A, Chapter 2, Part 13, Utah Special Service District Act;
(I) water conservancy district, under Title 17B, Chapter 2a, Part 10, Water Conservancy District Act; and
(J) conservation district, under Title 17A, Chapter 3, Part 8, Conservation Districts.
(b) A notice required by this section is effective upon substantial compliance with Subsections (7)(a)(i) through (iii).
(8) A groundwater management plan may be amended in the same manner as a groundwater management plan may be adopted under this section.
(9) The existence of a groundwater management plan does not preclude any otherwise eligible person from filing any application or challenging any decision made by the state engineer within the affected groundwater basin.
(10) (a) A person aggrieved by a groundwater management plan may challenge any aspect of the groundwater management plan by filing a complaint within 60 days after the adoption of the groundwater management plan in the district court for any county in which the groundwater basin is found.
(b) Notwithstanding Subsection (9), a person may challenge the components of a groundwater management plan only in the manner provided by Subsection (10)(a).
(c) An action brought under this Subsection (10) is reviewed de novo by the district court.
(d) A person challenging a groundwater management plan under this Subsection (10) shall join the state engineer as a defendant in the action challenging the groundwater management plan.
(e) (i) Within 30 days after the day on which a person files an action challenging any aspect of a groundwater management plan under Subsection (10)(a), the person filing the action shall publish notice of the action in a newspaper of general circulation in the county in which the district court is located.
(ii) The notice required by Subsection (10)(e)(i) shall be published once a week for two consecutive weeks.
(iii) The notice required by Subsection (10)(e)(i) shall:
(A) identify the groundwater management plan the person is challenging;
(B) identify the case number assigned by the district court;
(C) state that a person affected by the groundwater management plan may petition the district court to intervene in the action challenging the groundwater management plan; and
(D) list the address for the clerk of the district court in which the action is filed.
(iv) (A) Any person affected by the groundwater management plan may petition to intervene in the action within 60 days after the day on which notice is last published under Subsections (10)(e)(i) and (ii).
(B) The district court's treatment of a petition to intervene under this Subsection (10)(e)(iv) is governed by the Utah Rules of Civil Procedure.
(v) A district court in which an action is brought under Subsection (10)(a) shall consolidate all actions brought under that Subsection and include in the consolidated action any person whose petition to intervene is granted.
(11) A groundwater management plan adopted or amended in accordance with this section is exempt from the requirements in [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(12) Recharge and recovery projects permitted under Chapter 3b, Groundwater Recharge and Recovery Act, are exempted from this section.
(13) Nothing in this section may be interpreted to require the development, implementation, or consideration of a groundwater management plan as a prerequisite or condition to the exercise of the state engineer's enforcement powers under other law, including powers granted under Section 73-2-25.
(14) A groundwater management plan adopted in accordance with this section may not apply to the dewatering of a mine.
(15) (a) A groundwater management plan adopted by the state engineer before May 1, 2006, remains in force and has the same legal effect as it had on the day on which it was adopted by the state engineer.
(b) If a groundwater management plan that existed before May 1, 2006, is amended on or after May 1, 2006, the amendment is subject to this section's provisions.
Section 2172. Section 73-10-27 is amended to read:
73-10-27
. Project priorities -- Considerations -- Determinations of feasibility -- Bids and contracts -- Definitions -- Retainage.(1) In considering the priorities for projects to be built with funds made available under Section 73-10-24, the board shall give preference to those projects which:
(a) are sponsored by the state or a political subdivision of the state;
(b) meet a critical local need;
(c) have greater economic feasibility;
(d) will yield revenue to the state within a reasonable time or will return a reasonable rate of interest, based on financial feasibility; and
(e) meet other considerations deemed necessary by the board, including, but not limited to, wildlife management and recreational needs.
(2) In determining the economic feasibility the board shall establish a benefit-to-cost ratio for each project, using a uniform standard of procedure for all projects. In considering whether a project should be built, the benefit-to-cost ratio for each project shall be weighted based on the relative cost of the project. A project, when considered in total with all other projects constructed under this chapter and still the subject of a repayment contract, may not cause the accumulative benefit-to-cost ratio of the projects to be less than one to one.
(3) Under no circumstances may a project be built that is not in the public interest as determined by the Board of Water Resources, and no project may be built which is not adequately designed based on sound engineering and geologic considerations.
(4) The board in the preparation of a project for construction shall comply with the following:
(a) All flood control projects involving cities and counties costing in excess of $35,000, and all contracts for the construction of a storage reservoir in excess of 100 acre-feet or for the construction of a hydroelectric generating facility, shall be awarded on the basis of competitive bid. Advertisement for competitive bids shall be published by the board at least once a week for three consecutive weeks in a newspaper with general circulation in the state. The advertisement shall indicate that the board will award the contract to the lowest responsible bidder but that it reserves to itself the right to reject any and all bids. The date of last publication shall appear at least five days before the scheduled bid opening.
(b) If all initial bids on the project are rejected, the board shall readvertise the project in the manner specified in Subsection (4)(a). If no satisfactory bid is received by the board upon the readvertisement of the project, it may proceed to construct the project but only in accordance with the plans and specifications used to calculate the estimated cost of the project.
(c) The board shall keep an accurate record of all facts and representations relied upon in preparing its estimated cost for any project which is subject to the competitive bidding requirements of this section.
(d) For the purposes of this Subsection (4):
(i) "Estimated cost" means the cost of all labor, material, and equipment necessary for construction of the contemplated project.
(ii) "Lowest responsible bidder" means any licensed contractor who submits the lowest bid, whose bid is in compliance with the invitation for bids, whose bid meets the plans and specifications, and who furnishes bonds under Sections 14-1-18 and [63-56-504] 63G-6-505.
(5) If any payment on a contract with a private contractor for construction of projects under this section is retained or withheld, it shall be retained or withheld and released as provided in Section 13-8-5.
Section 2173. Section 73-10c-4.1 is amended to read:
73-10c-4.1
. Wastewater projects -- Loan criteria and requirements -- Process for approval.(1) The Water Quality Board shall review the plans and specifications for a wastewater project before approval of any loan and may condition approval on the availability of loan funds and on assurances that the Water Quality Board considers necessary to ensure that loan funds are used to pay the wastewater project costs and that the wastewater project is completed.
(2) (a) Each loan shall specify the terms for repayment, with the term, interest rate or rates, including a variable rate, and security as determined by the Water Quality Board.
(b) The loan may be evidenced by general obligation or revenue bonds or other obligations of the political subdivision.
(c) Loan payments made by a political subdivision shall be deposited in the Water Quality Security Subaccount as described in Section 73-10c-5.
(d) The loans are subject to the provisions of [Title 63, Chapter 65] Title 63B, Chapter 1b, State Financing Consolidation Act.
(3) In determining the priority for a wastewater project loan, the Water Quality Board shall consider:
(a) the ability of the political subdivision to obtain monies for the wastewater project from other sources or to finance the project from its own resources;
(b) the ability of the political subdivision to repay the loan;
(c) whether or not a good faith effort to secure all or part of the services needed from the private sector of the economy has been made; and
(d) whether or not the wastewater project:
(i) meets a critical local or state need;
(ii) is cost effective;
(iii) will protect against present or potential health hazards;
(iv) is needed to comply with minimum standards of the federal Water Pollution Control Act, Title 33, Chapter 26, United States Code, or any similar or successor statute;
(v) is needed to comply with the minimum standards of Title 19, Chapter 5, Water Quality Act, or any similar or successor statute;
(vi) is designed to reduce the pollution of the waters of this state; and
(vii) meets any other consideration considered necessary by the Water Quality Board.
(4) In determining the cost effectiveness of a wastewater project the Water Quality Board shall:
(a) require the preparation of a cost-effective analysis of feasible wastewater treatment or conveyance alternatives capable of meeting state and federal water quality and public health requirements;
(b) consider monetary costs, including the present worth or equivalent annual value of all capital costs and operation, maintenance, and replacement costs; and
(c) ensure that the alternative selected is the most economical means of meeting applicable state and federal wastewater and water quality or public health requirements over the useful life of the facility while recognizing environmental and other nonmonetary considerations.
(5) A loan may not be made for a wastewater project that is not in the public interest as determined by the Water Quality Board.
Section 2174. Section 73-10c-4.2 is amended to read:
73-10c-4.2
. Drinking water projects -- Loan criteria and requirements -- Process for approval.(1) The Drinking Water Board shall review the plans and specifications for a drinking water project before approval of any loan and may condition approval on the availability of loan funds and on the assurances that the Drinking Water Board considers necessary to ensure that loan funds are used to pay the drinking water project costs and that the drinking water project is completed.
(2) (a) Each loan shall specify the terms for repayment, with the term, interest rate or rates, including a variable rate, and security as determined by the Drinking Water Board.
(b) The loan may be evidenced by general obligation or revenue bonds or other obligations of the political subdivision.
(c) Loan payments made by a political subdivision shall be deposited in the Drinking Water Security Subaccount as described in Section 73-10c-5.
(d) The loans are subject to the provisions of [Title 63, Chapter 65] Title 63B, Chapter 1b, State Financing Consolidation Act.
(3) In determining the priority for a drinking water project loan, the Drinking Water Board shall consider:
(a) the ability of the political subdivision to obtain monies for the drinking water project from other sources or to finance such project from its own resources;
(b) the ability of the political subdivision to repay the loan;
(c) whether or not a good faith effort to secure all or part of the services needed from the private sector of the economy has been made; and
(d) whether or not the drinking water project:
(i) meets a critical local or state need;
(ii) is cost effective;
(iii) will protect against present or potential health hazards;
(iv) is needed to comply with minimum standards of the federal Safe Drinking Water Act, or any similar or successor statute;
(v) is needed to comply with the minimum standards of Title 19, Chapter 4, Safe Drinking Water Act, or any similar or successor statute; and
(vi) meets any other consideration considered necessary by the Drinking Water Board.
(4) In determining the cost effectiveness of a drinking water project the Drinking Water Board shall:
(a) require the preparation of a cost-effective analysis of feasible drinking water projects;
(b) consider monetary costs, including the present worth or equivalent annual value of all capital costs and operation, maintenance, and replacement cost; and
(c) ensure that the alternative selected is the most economical means of meeting applicable water quality or public health requirements over the useful life of the facility while recognizing environmental and other nonmonetary considerations.
(5) A loan may not be made for a drinking water project that is not in the public interest as determined by the Drinking Water Board.
Section 2175. Section 73-10c-4.5 is amended to read:
73-10c-4.5
. Nonpoint source project loans and grants -- Project objectives -- Water Quality Board duties.(1) The Water Quality Board may make a loan from the Utah Wastewater Loan Program Subaccount created in Subsection 73-10c-5(2)(a) or from the Utah State Revolving Fund for Wastewater Projects Subaccount created in Subsection 73-10c-5(2)(b) or a grant from the Hardship Grant Program for Wastewater Projects Subaccount created in Subsection 73-10c-5(2)(c) to a political subdivision, individual, corporation, association, state or federal agency, or other private entity to acquire, construct, or implement a nonpoint source project.
(2) The Water Quality Board may only award a loan or grant for a nonpoint source project that will achieve one or more of the following objectives:
(a) abate or reduce raw sewage discharges;
(b) repair or replace failing individual on-site wastewater disposal systems;
(c) abate or reduce untreated or uncontrolled runoff;
(d) improve critical aquatic habitat resources;
(e) conserve soil, water, or other natural resources;
(f) protect and improve ground water quality;
(g) preserve and protect the beneficial uses of waters of the state;
(h) reduce the number of water bodies not achieving water quality standards;
(i) improve watershed management; or
(j) prepare and implement total maximum daily load (TMDL) assessments.
(3) The Water Quality Board shall:
(a) determine the amount, term, and interest rate for each loan made under this section;
(b) assure that adequate security is obtained for each loan;
(c) establish criteria and procedures for determining priority nonpoint source projects and award loans in accordance with those priorities; and
(d) make rules to implement this section in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2176. Section 73-10c-8 is amended to read:
73-10c-8
. Rules.The board shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer this chapter, including the application by political subdivisions for the securing of their drinking water or wastewater project obligations, the approval of obligations to be secured, the verification of notices with respect to inabilities of political subdivisions to pay principal and interest, and the credit enhancement agreements with political subdivisions setting forth the terms and conditions under which obligations may be secured under this chapter.
Section 2177. Section 73-10c-10 is amended to read:
73-10c-10
. Origination fee.(1) The Drinking Water Board and the Water Quality Board may establish an origination fee for a loan to fund the administration of the programs created by this chapter by following the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(2) The origination fee shall be part of the department fee schedule established under Section 19-1-201.
(3) Notwithstanding Subsection [63-38-3.2] 63J-1-303(2)(e), the board shall deposit the fee in the origination fee subaccount created in Section 73-10c-5 and use the fee to administer this chapter.
(4) The loan recipient may pay the origination fee from the loan proceeds.
Section 2178. Section 73-18-4 is amended to read:
73-18-4
. Board may promulgate rules and set fees.(1) The board may promulgate rules:
(a) creating a uniform waterway marking system which shall be obeyed by all vessel operators;
(b) regulating the placement of waterway markers and other permanent or anchored objects on the waters of this state;
(c) zoning certain waters of this state for the purpose of prohibiting the operation of vessels or motors for safety and health purposes only; and
(d) regulating vessel operators who carry passengers for hire and outfitting companies.
(2) (a) The board may set fees for licensing vessel operators who carry passengers for hire and registering outfitting companies in accordance with Section [63-38-3.2] 63J-1-303.
(b) The license and registration fees imposed pursuant to Subsection (2)(a) shall be deposited into the Boating Account created in Section 73-18-22.
Section 2179. Section 73-18-7 is amended to read:
73-18-7
. Registration requirements -- Exemptions -- Fee -- Agents -- Records -- Period of registration and renewal -- Expiration -- Notice of transfer of interest or change of address -- Duplicate registration card -- Invalid registration -- Powers of board.(1) (a) Except as provided by Section 73-18-9, the owner of each motorboat and sailboat on the waters of this state shall register it with the division as provided in this chapter.
(b) A person may not place, give permission for the placement of, operate, or give permission for the operation of a motorboat or sailboat on the waters of this state, unless the motorboat or sailboat is registered as provided in this chapter.
(2) (a) The owner of a motorboat or sailboat required to be registered shall file an application for registration with the division on forms approved by the division.
(b) The owner of the motorboat or sailboat shall sign the application and pay the fee set by the board in accordance with Section [63-38-3.2] 63J-1-303.
(c) Before receiving a registration card and registration decals, the applicant shall provide the division with a certificate from the county assessor of the county in which the motorboat or sailboat has situs for taxation, stating that:
(i) the property tax on the motorboat or sailboat for the current year has been paid;
(ii) in the county assessor's opinion, the property tax is a lien on real property sufficient to secure the payment of the property tax; or
(iii) the motorboat or sailboat is exempt by law from payment of property tax for the current year.
(d) If the board modifies the fee under Subsection (2)(b), the modification shall take effect on the first day of the calendar quarter after 90 days from the day on which the board provides the State Tax Commission:
(i) notice from the board stating that the board will modify the fee; and
(ii) a copy of the fee modification.
(3) (a) Upon receipt of the application in the approved form, the division shall record the receipt and issue to the applicant registration decals and a registration card that state the number assigned to the motorboat or sailboat and the name and address of the owner.
(b) The registration card shall be available for inspection on the motorboat or sailboat for which it was issued, whenever that motorboat or sailboat is in operation.
(4) The assigned number shall:
(a) be painted or permanently attached to each side of the forward half of the motorboat or sailboat;
(b) consist of plain vertical block characters not less than three inches in height;
(c) contrast with the color of the background and be distinctly visible and legible;
(d) have spaces or hyphens equal to the width of a letter between the letter and numeral groupings; and
(e) read from left to right.
(5) A motorboat or sailboat with a valid marine document issued by the United States Coast Guard is exempt from the number display requirements of Subsection (4).
(6) The nonresident owner of any motorboat or sailboat already covered by a valid number that has been assigned to it according to federal law or a federally approved numbering system of the owner's resident state is exempt from registration while operating the motorboat or sailboat on the waters of this state unless the owner is operating in excess of the reciprocity period provided for in Subsection 73-18-9(1).
(7) (a) If the ownership of a motorboat or sailboat changes, the new owner shall file a new application form and fee with the division, and the division shall issue a new registration card and registration decals in the same manner as provided for in Subsections (2) and (3).
(b) The division shall reassign the current number assigned to the motorboat or sailboat to the new owner to display on the motorboat or sailboat.
(8) If the United States Coast Guard has in force an overall system of identification numbering for motorboats or sailboats within the United States, the numbering system employed under this chapter by the board shall conform with that system.
(9) (a) The division may authorize any person to act as its agent for the registration of motorboats and sailboats.
(b) A number assigned, a registration card, and registration decals issued by an agent of the division in conformity with this chapter and rules of the board are valid.
(10) (a) The Motor Vehicle Division shall classify all records of the division made or kept according to this section in the same manner that motor vehicle records are classified under Section 41-1a-116.
(b) Division records are available for inspection in the same manner as motor vehicle records pursuant to Section 41-1a-116.
(11) (a) (i) Each registration, registration card, and decal issued under this chapter shall continue in effect for 12 months, beginning with the first day of the calendar month of registration.
(ii) A registration may be renewed by the owner in the same manner provided for in the initial application.
(iii) The division shall reassign the current number assigned to the motorboat or sailboat when the registration is renewed.
(b) Each registration, registration card, and registration decal expires the last day of the month in the year following the calendar month of registration.
(c) If the last day of the registration period falls on a day in which the appropriate state or county offices are not open for business, the registration of the motorboat or sailboat is extended to 12 midnight of the next business day.
(d) The division may receive applications for registration renewal and issue new registration cards at any time before the expiration of the registration, subject to the availability of renewal materials.
(e) The new registration shall retain the same expiration month as recorded on the original registration even if the registration has expired.
(f) The year of registration shall be changed to reflect the renewed registration period.
(g) If the registration renewal application is an application generated by the division through its automated system, the owner is not required to surrender the last registration card or duplicate.
(12) (a) An owner shall notify the division of:
(i) the transfer of all or any part of the owner's interest, other than creation of a security interest, in a motorboat or sailboat registered in this state under Subsections (2) and (3); and
(ii) the destruction or abandonment of the owner's motorboat or sailboat.
(b) Notification must take place within 15 days of the transfer, destruction, or abandonment.
(c) (i) The transfer, destruction, or abandonment of a motorboat or sailboat terminates its registration.
(ii) Notwithstanding Subsection (12)(c)(i), a transfer of a part interest that does not affect the owner's right to operate a motorboat or sailboat does not terminate the registration.
(13) (a) A registered owner shall notify the division within 15 days if the owner's address changes from the address appearing on the registration card and shall, as a part of this notification, furnish the division with his new address.
(b) The board may provide in its rules for:
(i) the surrender of the registration card bearing the former address; and
(ii) (A) the replacement of the card with a new registration card bearing the new address; or
(B) the alteration of an existing registration card to show the owner's new address.
(14) (a) If a registration card is lost or stolen, the division may collect a fee of $4 for the issuance of a duplicate card.
(b) If a registration decal is lost or stolen, the division may collect a fee of $3 for the issuance of a duplicate decal.
(15) A number other than the number assigned to a motorboat or sailboat or a number for a motorboat or sailboat granted reciprocity under this chapter may not be painted, attached, or otherwise displayed on either side of the bow of a motorboat or sailboat.
(16) A motorboat or sailboat registration and number are invalid if obtained by knowingly falsifying an application for registration.
(17) The board may designate the suffix to assigned numbers, and by following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules for:
(a) the display of registration decals;
(b) the issuance and display of dealer numbers and registrations; and
(c) the issuance and display of temporary registrations.
Section 2180. Section 73-18-13.5 is amended to read:
73-18-13.5
. Motorboat accidents -- Investigation and report of operator security -- Agency action if no security -- Surrender of registration materials.(1) Upon request of a peace officer investigating an accident involving a motorboat as defined in Section 73-18c-102, the operator of the motorboat shall provide evidence of the owner's or operator's security required under Section 73-18c-301.
(2) The peace officer shall record on a form approved by the division:
(a) the information provided by the operator;
(b) whether the operator provided insufficient or no information; and
(c) whether the peace officer finds reasonable cause to believe that any information given is not correct.
(3) The peace officer shall deposit all completed forms with the peace officer's agency, which shall forward the forms to the division no later than ten days after receipt.
(4) (a) The division shall revoke the registration of a motorboat as defined in Section 73-18c-102 involved in an accident unless the owner or operator can demonstrate to the division compliance with the owner's or operator's security requirement of Section 73-18c-301 at the time of the accident.
(b) Any registration revoked may not be renewed for a period of one year following the date of revocation.
(5) A person may appeal a revocation issued under Subsection (4) in accordance with procedures established by the board by rule that are consistent with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(6) (a) Any person whose registration is revoked under Subsection (4) shall return the registration card and decals for the motorboat to the division.
(b) If the person fails to return the registration materials as required, they shall be confiscated under Section 73-18-13.6.
(7) The board may make rules for the enforcement of this section.
(8) In this section, "evidence of owner's or operator's security" includes any one of the following:
(a) the operator's:
(i) insurance policy;
(ii) binder notice;
(iii) renewal notice; or
(iv) card issued by an insurance company as evidence of insurance;
(b) a copy of a surety bond, certified by the surety, which conforms to Section 73-18c-102;
(c) a certificate of the state treasurer issued under Section 73-18c-305; or
(d) a certificate of self-funded coverage issued under Section 73-18c-306.
Section 2181. Section 73-18-19 is amended to read:
73-18-19
. Publication of rules and regulations.The rules promulgated under this chapter shall be published as required by [Title 63, Chapter 46a] Title 63G, Chapter 3, the Utah Administrative Rulemaking Act.
Section 2182. Section 73-18-25 is amended to read:
73-18-25
. Fees to cover the costs of electronic payments.(1) As used in this section:
(a) "Electronic payment" has the same meaning as defined in Section 41-1a-1221.
(b) "Electronic payment fee" has the same meaning as defined in Section 41-1a-1221.
(2) (a) The Motor Vehicle Division may collect an electronic payment fee on all registrations and renewals of registration under Section 73-18-7.
(b) The fee described under Subsection (2)(a) shall be imposed regardless of the method of payment for a particular transaction.
(3) The Motor Vehicle Division shall establish the fee according to the procedures and requirements of Section [63-38-3.2] 63J-1-303.
(4) A fee imposed under this section:
(a) shall be used by the Motor Vehicle Division as a dedicated credit to cover the costs of electronic payments;
(b) is nonlapsing;
(c) is not subject to Subsection [63-38a-104] 63J-2-202(2); and
(d) need not be separately identified from the fees imposed on registrations and renewals of registration under Section 73-18-7.
Section 2183. Section 73-18a-4 is amended to read:
73-18a-4
. Marine toilets -- Pollution control devices required -- Rules established by board.(1) Every marine toilet on a vessel used or operated upon the waters of this state shall be equipped with an approved pollution control device in operative condition.
(2) The board shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as provided in this chapter, establishing criteria or standards for definition and approval of acceptable pollution control devices for vessels.
Section 2184. Section 73-18a-5 is amended to read:
73-18a-5
. Chemical treatment of marine toilet contents -- Rules established by board and Department of Environmental Quality.The board shall establish by rule, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, with approval by the Department of Environmental Quality, as provided in this chapter, standards relating to chemical treatment of marine toilet contents.
Section 2185. Section 73-18a-12 is amended to read:
73-18a-12
. Rules promulgated by board -- Subject to approval by Department of Environmental Quality.The board may promulgate rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which are necessary for the carrying out of duties, obligations, and powers conferred on the division by this chapter. These rules shall be subject to review and approval by the Department of Environmental Quality. This approval shall be recorded as part of the rules.
Section 2186. Section 73-18c-201 is amended to read:
73-18c-201
. Division to administer and enforce chapter -- Board may adopt rules.(1) The division shall administer and enforce the provisions of this chapter.
(2) The board may adopt rules as necessary for the administration of this chapter in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2187. Section 73-18c-306 is amended to read:
73-18c-306
. Certificate of self-funded coverage as proof of owner's or operator's security.(1) The division may, upon the application of any person, issue a certificate of self-funded coverage when it is satisfied that the person has:
(a) more than 24 motorboats; and
(b) on deposit, in a form approved by the division, cash or securities in an amount of $200,000 plus $100 for each motorboat up to and including 1,000 motorboats and $50 for each motorboat over 1,000 motorboats.
(2) Persons holding a certificate of self-funded coverage under this chapter shall pay benefits to persons injured from the self-funded person's operation, maintenance, and use of motorboats as would an insurer issuing a policy to the self-funded person containing the coverages under Sections 31A-22-1502 and 31A-22-1503.
(3) In accordance with [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, the division may, upon reasonable grounds, cancel the certificate. Failure to pay any judgment up to the limit under Subsection 31A-22-1503(2) within 30 days after the judgment is final is a reasonable ground to cancel the certificate.
(4) Any government entity with self-funded coverage for government-owned motorboats under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, meets the requirements of this section.
Section 2188. Section 73-22-5 is amended to read:
73-22-5
. Jurisdiction of division -- Hearings -- Subpoena power -- Restraining violations -- Actions for damages against violators unaffected.(1) The division has jurisdiction and authority over all persons and property, public and private, necessary to enforce the provisions of this chapter and may enact, issue, and enforce necessary rules and orders to carry out the requirements of this chapter.
(2) (a) Any affected person may apply for a hearing before the division, or the division may initiate proceedings upon any question relating to the administration of this chapter by following the procedures and requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(b) The Division of Water Rights shall comply with the procedures and requirements of [Title 63, Chapter 46b,] Title 63G, Chapter 4, Administrative Procedures Act, in its adjudicative proceedings.
(3) The division shall have the power to summon witnesses, to administer oaths, and to require the production of records, books, and documents for examination at any hearing or investigation conducted by it.
(4) (a) If any person fails or refuses to comply with a subpoena issued by the division, or if any witness fails or refuses to testify about any matter regarding which he may be interrogated, the division may petition any district court in the state to issue an order compelling the person to:
(i) comply with the subpoena and attend before the division;
(ii) produce any records, books, and documents covered by the subpoena; or
(iii) to give testimony.
(b) The court may punish failure to comply with the order as contempt.
(5) (a) Whenever it appears that any person is violating or threatening to violate any provision of this chapter, or any rule or order made under this chapter, the division may file suit in the name of the state to restrain that person from continuing the violation or from carrying out the threat of violation.
(b) Venue for the action is in the district court in the county where any defendant resides or in the county where the violation is alleged to have occurred.
(6) (a) Nothing in this chapter, no suit by or against the division, and no violation charged or asserted against any person under this chapter, or any rule or order issued under it, shall impair, abridge, or delay any cause of action for damages that any person may have or assert against any person violating this chapter, or any rule or order issued under it.
(b) Any person so damaged by the violation may sue for and recover whatever damages that he is otherwise entitled to receive.
Section 2189. Section 73-23-3 is amended to read:
73-23-3
. Duties and powers of Division of Water Resources.For purposes of this chapter, the Division of Water Resources:
(1) shall provide for the construction, operation, and maintenance of the West Desert Pumping Project;
(2) may enter into agreements as necessary to provide for all or any portion of the West Desert Pumping Project, including any indemnification agreements required by the federal government;
(3) may acquire land or any other property right by any lawful means, including eminent domain;
(4) is exempt from [Title 63, Chapter 56] Title 63G, Chapter 6, the Utah Procurement Code; and
(5) may proceed without obtaining water right approval from the state engineer.
Section 2190. Section 73-26-402 is amended to read:
73-26-402
. Rulemaking power of the board.In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board may make rules to:
(1) determine water charges as provided in Section 73-26-506;
(2) administer and operate the reservoirs and associated facilities constructed in accordance with Section 73-26-301;
(3) establish procedures for reviewing offers to contract for the sale or lease of developed water; and
(4) set the interest rate for repayment of construction and environmental mitigation costs.
Section 2191. Section 73-26-403 is amended to read:
73-26-403
. Immunity from suit -- Exception.Activities engaged in under authority of this chapter are governmental functions. The state and its officers and employees are immune from suit for any injury or damage resulting from those activities, except as provided in Section [63-30d-301] 63G-7-301.
Section 2192. Section 73-28-104 is amended to read:
73-28-104
. Powers of the board.(1) The board may contract with:
(a) a district for the sale of developed water;
(b) a qualified entity for the development or construction of the project; or
(c) a district or other qualified entity for the operation, maintenance, repair, or replacement of the project.
(2) By following the procedures and requirements of [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board may make rules to:
(a) establish prices, in consultation with the committee and in accordance with Section 73-28-403, for:
(i) developed water sold to the districts; and
(ii) electricity made available by the project;
(b) establish procedures for reviewing offers to contract for the sale of developed water and electricity;
(c) establish the interest rate for repayment of preconstruction and construction costs;
(d) establish a reasonable time period for the districts to offer to purchase water; and
(e) administer and operate the project.
(3) The board may exercise eminent domain, as provided in Title 78, Chapter 34, Eminent Domain, to construct the project.
Section 2193. Section 73-28-404 is amended to read:
73-28-404
. Repayments returned to Water Resources Conservation and Development Fund -- Establishment of an enterprise fund.(1) The board shall deposit, in accordance with Section 51-4-1, into the Water Resources Conservation and Development Fund:
(a) repayments of preconstruction and construction costs; and
(b) the interest charged.
(2) (a) There is created an enterprise fund, as defined in Subsection 51-5-4(8), entitled the "Lake Powell Pipeline Project Operation and Maintenance Fund."
(b) The fund consists of:
(i) revenues received from the sale of developed water that is designated for project operation, maintenance, repair, and replacement costs;
(ii) revenues received from the sale of electricity that are deposited in the fund in accordance with Subsection 73-28-203(3); and
(iii) all interest earned by the fund.
(3) (a) Any unexpended monies remaining in the fund at the end of the fiscal year are nonlapsing.
(b) Notwithstanding Section [63-38-3.6] 63J-1-307, the Legislature may not appropriate any monies from the Lake Powell Pipeline Project Operation and Maintenance Fund.
(4) The state treasurer shall:
(a) invest the monies in the enterprise fund by following the procedures and requirements of Title 51, Chapter 7, State Money Management Act; and
(b) deposit all interest or other earnings derived from those investments into the Lake Powell Pipeline Operation and Maintenance Fund.
(5) The committee shall approve the expenditure of fund monies to cover the project operation, maintenance, repair, and replacement costs, subject to:
(a) monies available in the fund; and
(b) rules established by the board under Subsection 73-28-104(2).
(6) If title to the project is transferred under Section 73-28-405, the agreement shall direct the disposition of the monies remaining in the fund.
Section 2194. Section 75-2a-106 (Effective 01/01/08) is amended to read:
75-2a-106 (Effective 01/01/08)
. Emergency medical services -- Physician order to withhold life sustaining procedures.(1) (a) The following persons may direct an emergency medical service provider licensed or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System Act, who responds to a call to provide emergency medical services as defined in Section 26-8a-102, to withhold all life sustaining procedures:
(i) an individual over the age of 18;
(ii) an emancipated minor; or
(iii) the following person, if the person has a physician's order to withhold life sustaining procedures that is issued in compliance with this section:
(A) a parent or legal guardian of a minor;
(B) a legal guardian appointed for an individual; or
(C) a surrogate.
(b) A person described in Subsection (1)(a)(iii) may direct an emergency service provider to withhold life sustaining procedures if the person has a physician's order:
(i) made in compliance with Subsection (4); and
(ii) if the physician's order applies to a minor, it must include a certification by two physicians that in their clinical judgment an order to withhold life sustaining treatment is in the best interest of the individual.
(c) The physician order is binding upon emergency medical services providers only if the physician order is in compliance with Subsections (2) and (4).
(2) (a) The Department of Health shall by administrative rule establish a uniform system to allow emergency medical service providers to readily identify persons who have obtained a physician order under this section.
(b) The system may provide for:
(i) personal, tamper-proof identifying bracelets;
(ii) forms;
(iii) the presence of the physician's orders on a form in compliance with Subsection (4) and approved by the Department of Health; or
(iv) some other system approved by the Department of Health which clearly identifies the individual as one who has a continued intent to be readily identified as a person with a physician's order to withhold life sustaining procedures.
(3) An emergency medical services provider is not bound to act in accordance with a physician order issued under this section unless the physician order complies with the administrative rules adopted by the Department of Health in accordance with this section.
(4) A physician order made under this section shall be:
(a) in writing and on a form approved by the Department of Health;
(b) signed by:
(i) the declarant;
(ii) a person in the declarant's presence and by the declarant's expressed direction;
(iii) the parent or legal guardian of a minor; or
(iv) if the declarant does not have the ability to give current directions concerning the declarant's care and treatment, the surrogate or class of surrogates with the highest priority under Section 75-2a-111;
(c) dated;
(d) signed, completed, and certified by the declarant's licensed health care professional, acting within the scope of practice; and
(e) if for a minor, in compliance with Subsection (1)(b).
(5) A physician order made under this section takes precedence over a directive made under Section 75-2a-107, but only to the extent of a conflict.
(6) An individual who wishes to revoke a physician order made under this section may do so by:
(a) orally informing emergency service personnel;
(b) writing "void" across the form, or burning, tearing, or otherwise destroying or defacing the document, bracelet, or other evidence of the physician order, or by asking another person to do the same on the individual's behalf;
(c) signing or directing another person to sign a written revocation on the individual's behalf;
(d) stating that the individual wishes to revoke the order in the presence of a witness who is age 18 or older; or
(e) signing a new physician order.
(7) (a) The Department of Health shall adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to:
(i) create the forms and systems required by Subsections (2) and (4); and
(ii) develop uniform instructions for the form established in Section 75-2a-117.
(b) The Department of Health may assist others with training of health care professionals regarding this chapter.
Section 2195. Section 76-6-513 is amended to read:
76-6-513
. Definitions -- Unlawful dealing of property by a fiduciary -- Penalties.(1) As used in this section:
(a) "Fiduciary" is as defined in Section 22-1-1.
(b) "Financial institution" means "depository institution" and "trust company" as defined in Section 7-1-103.
(c) "Governmental entity" is as defined in Section [63-30d-102] 63G-7-102.
(d) "Person" does not include a financial institution whose fiduciary functions are supervised by the Department of Financial Institutions or a federal regulatory agency.
(e) "Property" is as defined in Section 76-6-401.
(f) "Public monies" is as defined in Section 76-8-401.
(2) A person is guilty of unlawfully dealing with property by a fiduciary if he deals with property that has been entrusted to him as a fiduciary, or property of a governmental entity, public monies, or of a financial institution, in a manner which he knows is a violation of his duty and which involves substantial risk of loss or detriment to the owner or to a person for whose benefit the property was entrusted. A violation of this Subsection (2) is punishable under Section 76-6-412.
(3) (a) A person acting as a fiduciary is guilty of a violation of this subsection if, without permission of the owner of the property or some other person with authority to give permission, he pledges as collateral for a personal loan, or as collateral for the benefit of some party, other than the owner or the person for whose benefit the property was entrusted, the property that has been entrusted to the fiduciary.
(b) An offense under Subsection (3)(a) is punishable as:
(i) a felony of the second degree if the value of the property wrongfully pledged is or exceeds $5,000;
(ii) a felony of the third degree if the value of the property wrongfully pledged is or exceeds $1,000 but is less than $5,000;
(iii) a class A misdemeanor if the value of the property is or exceeds $300, but is less than $1,000 or the actor has been twice before convicted of theft, robbery, burglary with intent to commit theft, or unlawful dealing with property by a fiduciary; or
(iv) a class B misdemeanor if the value of the property is less than $300.
Section 2196. Section 76-7-317.1 is amended to read:
76-7-317.1
. Creation of Abortion Litigation Trust Account.(1) (a) There is created in the General Fund a restricted account known as the Abortion Litigation Trust Account. All money received by the state from private sources for litigation expenses connected with the defense of Senate Bill 23, passed in the 1991 Annual General Session, shall be deposited in that account.
(b) On behalf of the Abortion Litigation Trust Account, the Division of Finance may accept grants, gifts, bequests, or any money made available from any private sources to implement this section.
(2) Money shall be appropriated by the Legislature from the account to the Office of the Attorney General under [Title 63, Chapter 38] Title 63J, Chapter 1, Budgetary Procedures Act.
(3) The Abortion Litigation Trust Account may be used only for costs, expenses, and attorneys fees connected with the defense of the abortion law identified in Subsection (1).
(4) Any funds remaining in the abortion litigation trust account after final appellate procedures shall revert to the General Fund, to be first used to offset the monies expended by the state in connection with litigation regarding Senate Bill 23.
Section 2197. Section 76-8-311.3 is amended to read:
76-8-311.3
. Items prohibited in correctional and mental health facilities -- Penalties.(1) As used in this section:
(a) "Contraband" means any item not specifically prohibited for possession by offenders under this section or Title 58, Chapter 37, Utah Controlled Substances Act.
(b) "Controlled substance" means any substance defined as a controlled substance under Title 58, Chapter 37, Utah Controlled Substances Act.
(c) "Correctional facility" means:
(i) any facility operated by or contracting with the Department of Corrections to house offenders in either a secure or nonsecure setting;
(ii) any facility operated by a municipality or a county to house or detain criminal offenders;
(iii) any juvenile detention facility; and
(iv) any building or grounds appurtenant to the facility or lands granted to the state, municipality, or county for use as a correctional facility.
(d) "Medicine" means any prescription drug as defined in Title 58, Chapter 17b, Pharmacy Practice Act, but does not include any controlled substances as defined in Title 58, Chapter 37, Utah Controlled Substances Act.
(e) "Mental health facility" has the same meaning as defined in Section 62A-15-602.
(f) "Offender" means a person in custody at a correctional facility.
(g) "Secure area" has the same meaning as provided in Section 76-8-311.1.
(2) Notwithstanding Section 76-10-500, a correctional or mental health facility may provide by rule that no firearm, ammunition, dangerous weapon, implement of escape, explosive, controlled substance, spirituous or fermented liquor, medicine, or poison in any quantity may be:
(a) transported to or upon a correctional or mental health facility;
(b) sold or given away at any correctional or mental health facility;
(c) given to or used by any offender at a correctional or mental health facility; or
(d) knowingly or intentionally possessed at a correctional or mental health facility.
(3) It is a defense to any prosecution under this section if the accused in committing the act made criminal by this section:
(a) with respect to a correctional facility operated by the Department of Corrections, acted in conformity with departmental rule or policy;
(b) with respect to a correctional facility operated by a municipality, acted in conformity with the policy of the municipality;
(c) with respect to a correctional facility operated by a county, acted in conformity with the policy of the county; or
(d) with respect to a mental health facility, acted in conformity with the policy of the mental health facility.
(4) (a) Any person who transports to or upon a correctional facility, or into a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, or implement of escape with intent to provide or sell it to any offender, is guilty of a second degree felony.
(b) Any person who provides or sells to any offender at a correctional facility, or any detainee at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, or implement of escape is guilty of a second degree felony.
(c) Any offender who possesses at a correctional facility, or any detainee who possesses at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, or implement of escape is guilty of a second degree felony.
(d) Any person who, without the permission of the authority operating the correctional facility or the secure area of a mental health facility, knowingly possesses at a correctional facility or a secure area of a mental health facility any firearm, ammunition, dangerous weapon, or implement of escape is guilty of a third degree felony.
(e) Any person violates Section 76-10-306 who knowingly or intentionally transports, possesses, distributes, or sells any explosive in a correctional facility or mental health facility.
(5) (a) A person is guilty of a third degree felony who, without the permission of the authority operating the correctional facility or secure area of a mental health facility, knowingly transports to or upon a correctional facility or into a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, whether or not lawfully prescribed for the offender; or
(iii) poison in any quantity.
(b) A person is guilty of a third degree felony who knowingly violates correctional or mental health facility policy or rule by providing or selling to any offender at a correctional facility or detainee within a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, whether or not lawfully prescribed for the offender; or
(iii) poison in any quantity.
(c) An inmate is guilty of a third degree felony who, in violation of correctional or mental health facility policy or rule, possesses at a correctional facility or in a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, other than medicine provided by the facility's health care providers in compliance with facility policy; or
(iii) poison in any quantity.
(d) A person is guilty of a class A misdemeanor who, with the intent to directly or indirectly provide or sell any tobacco product to an offender, directly or indirectly:
(i) transports, delivers, or distributes any tobacco product to an offender or on the grounds of any correctional facility;
(ii) solicits, requests, commands, coerces, encourages, or intentionally aids another person to transport any tobacco product to an offender or on any correctional facility, if the person is acting with the mental state required for the commission of an offense; or
(iii) facilitates, arranges, or causes the transport of any tobacco product in violation of this section to an offender or on the grounds of any correctional facility.
(e) A person is guilty of a class A misdemeanor who, without the permission of the authority operating the correctional or mental health facility, fails to declare or knowingly possesses at a correctional facility or in a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine; or
(iii) poison in any quantity.
(f) A person is guilty of a class B misdemeanor who, without the permission of the authority operating the correctional facility, knowingly engages in any activity that would facilitate the possession of any contraband by an offender in a correctional facility. The provisions of Subsection (5)(d) regarding any tobacco product take precedence over this Subsection (5)(f).
(g) Exemptions may be granted for worship for Native American inmates pursuant to Section 64-13-40.
(6) The possession, distribution, or use of a controlled substance at a correctional facility or in a secure area of a mental health facility shall be prosecuted in accordance with Title 58, Chapter 37, Utah Controlled Substances Act.
(7) The department shall make rules under [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish guidelines for providing written notice to visitors that providing any tobacco product to offenders is a class A misdemeanor.
Section 2198. Section 76-8-317 is amended to read:
76-8-317
. Refusal to comply with order to evacuate or other orders issued in a local or state emergency -- Penalties.(1) A person may not refuse to comply with an order to evacuate issued under this chapter or refuse to comply with any other order issued by the governor in a state of an emergency or by a chief executive officer in a local emergency under Sections [63-5a-3] 63K-4-201 or [63-5a-4] 63K-4-202, if notice of the order has been given to that person.
(2) A person who violates this section is guilty of a class B misdemeanor.
Section 2199. Section 76-8-1101 is amended to read:
76-8-1101
. Criminal offenses and penalties relating to revenue and taxation -- Rulemaking authority -- Statute of limitations.(1) (a) As provided in Section 59-1-401, criminal offenses and penalties are as provided in Subsections (1)(b) through (e).
(b) (i) Any person who is required by Title 59, Revenue and Taxation, or any laws the State Tax Commission administers or regulates to register with or obtain a license or permit from the State Tax Commission, who operates without having registered or secured a license or permit, or who operates when the registration, license, or permit is expired or not current, is guilty of a class B misdemeanor.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (1)(b)(i), the penalty may not:
(A) be less than $500; or
(B) exceed $1,000.
(c) (i) Any person who, with intent to evade any tax or requirement of Title 59, Revenue and Taxation, or any lawful requirement of the State Tax Commission, fails to make, render, sign, or verify any return or to supply any information within the time required by law, or who makes, renders, signs, or verifies any false or fraudulent return or statement, or who supplies any false or fraudulent information, is guilty of a third degree felony.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (1)(c)(i), the penalty may not:
(A) be less than $1,000; or
(B) exceed $5,000.
(d) (i) Any person who intentionally or willfully attempts to evade or defeat any tax or the payment of a tax is, in addition to other penalties provided by law, guilty of a second degree felony.
(ii) Notwithstanding Section 76-3-301, for purposes of Subsection (1)(d)(i), the penalty may not:
(A) be less than $1,500; or
(B) exceed $25,000.
(e) (i) A person is guilty of a second degree felony if that person commits an act:
(A) described in Subsection (1)(e)(ii) with respect to one or more of the following documents:
(I) a return;
(II) an affidavit;
(III) a claim; or
(IV) a document similar to Subsections (1)(e)(i)(A)(I) through (III); and
(B) subject to Subsection (1)(e)(iii), with knowledge that the document described in Subsection (1)(e)(i)(A):
(I) is false or fraudulent as to any material matter; and
(II) could be used in connection with any material matter administered by the State Tax Commission.
(ii) The following acts apply to Subsection (1)(e)(i):
(A) preparing any portion of a document described in Subsection (1)(e)(i)(A);
(B) presenting any portion of a document described in Subsection (1)(e)(i)(A);
(C) procuring any portion of a document described in Subsection (1)(e)(i)(A);
(D) advising in the preparation or presentation of any portion of a document described in Subsection (1)(e)(i)(A);
(E) aiding in the preparation or presentation of any portion of a document described in Subsection (1)(e)(i)(A);
(F) assisting in the preparation or presentation of any portion of a document described in Subsection (1)(e)(i)(A); or
(G) counseling in the preparation or presentation of any portion of a document described in Subsection (1)(e)(i)(A).
(iii) This Subsection (1)(e) applies:
(A) regardless of whether the person for which the document described in Subsection (1)(e)(i)(A) is prepared or presented:
(I) knew of the falsity of the document described in Subsection (1)(e)(i)(A); or
(II) consented to the falsity of the document described in Subsection (1)(e)(i)(A); and
(B) in addition to any other penalty provided by law.
(iv) Notwithstanding Section 76-3-301, for purposes of this Subsection (1)(e), the penalty may not:
(A) be less than $1,500; or
(B) exceed $25,000.
(v) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Tax Commission may make rules prescribing the documents that are similar to Subsections (1)(e)(i)(A)(I) through (III).
(2) The statute of limitations for prosecution for a violation of this section is the later of six years:
(a) from the date the tax should have been remitted; or
(b) after the day on which the person commits the criminal offense.
Section 2200. Section 76-10-526 is amended to read:
76-10-526
. Criminal background check prior to purchase of a firearm -- Fee -- Exemption for concealed firearm permit holders.(1) For purposes of this section, "valid permit to carry a concealed firearm" does not include a temporary permit issued pursuant to Section 53-5-705.
(2) To establish personal identification and residence in this state for purposes of this part, a dealer shall require an individual receiving a firearm to present one photo identification on a form issued by a governmental agency of the state.
(3) A criminal history background check is required for the sale of a firearm by a licensed firearm dealer in the state.
(4) (a) An individual, except a dealer, purchasing a firearm from a dealer shall consent in writing to a criminal background check, on a form provided by the division.
(b) The form shall contain the following information:
(i) the dealer identification number;
(ii) the name and address of the individual receiving the firearm;
(iii) the date of birth, height, weight, eye color, and hair color of the individual receiving the firearm; and
(iv) the Social Security number or any other identification number of the individual receiving the firearm.
(5) (a) The dealer shall send the form required by Subsection (4) to the division immediately upon its completion.
(b) No dealer shall sell or transfer any firearm to an individual until the dealer has provided the division with the information in Subsection (4) and has received approval from the division under Subsection (7).
(6) The dealer shall make a request for criminal history background information by telephone or other electronic means to the division and shall receive approval or denial of the inquiry by telephone or other electronic means.
(7) When the dealer calls for or requests a criminal history background check, the division shall:
(a) review the criminal history files, including juvenile court records, to determine if the individual is prohibited from purchasing, possessing, or transferring a firearm by state or federal law;
(b) inform the dealer that:
(i) the records indicate the individual is so prohibited; or
(ii) the individual is approved for purchasing, possessing, or transferring a firearm;
(c) provide the dealer with a unique transaction number for that inquiry; and
(d) provide a response to the requesting dealer during the call for a criminal background, or by return call, or other electronic means, without delay, except in case of electronic failure or other circumstances beyond the control of the division, the division shall advise the dealer of the reason for the delay and give the dealer an estimate of the length of the delay.
(8) (a) The division shall not maintain any records of the criminal history background check longer than 20 days from the date of the dealer's request if the division determines that the individual receiving the gun is not prohibited from purchasing, possessing, or transferring the firearm under state or federal law.
(b) However, the division shall maintain a log of requests containing the dealer's federal firearms number, the transaction number, and the transaction date for a period of 12 months.
(9) If the criminal history background check discloses information indicating that the individual attempting to purchase the firearm is prohibited from purchasing, possessing, or transferring a firearm, the division shall inform the law enforcement agency in the jurisdiction where the person resides.
(10) If an individual is denied the right to purchase a firearm under this section, the individual may review his criminal history information and may challenge or amend the information as provided in Section 53-10-108.
(11) The division shall make rules as provided in [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to ensure the identity, confidentiality, and security of all records provided by the division pursuant to this part are in conformance with the requirements of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993).
(12) (a) (i) All dealers shall collect a criminal history background check fee which is $7.50.
(ii) This fee remains in effect until changed by the division through the process under Section [63-38-3.2] 63J-1-303.
(b) (i) The dealer shall forward at one time all fees collected for criminal history background checks performed during the month to the division by the last day of the month following the sale of a firearm.
(ii) The division shall deposit the fees in the General Fund as dedicated credits to cover the cost of administering and conducting the criminal history background check program.
(13) An individual with a concealed firearm permit issued pursuant to Title 53, Chapter 5, Part 7, Concealed Weapon Act, shall be exempt from the background check and corresponding fee required in this section for the purchase of a firearm if:
(a) the individual presents his concealed firearm permit to the dealer prior to purchase of the firearm; and
(b) the dealer verifies with the division that the individual's concealed firearm permit is valid.
Section 2201. Section 76-10-1209 is amended to read:
76-10-1209
. Injunctive relief -- Jurisdiction -- Consent to be sued -- Service of process.(1) The district courts of this state shall have full power, authority, and jurisdiction, upon application by any county attorney or city attorney within their respective jurisdictions or the attorney general, to issue any and all proper restraining orders, preliminary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this part. No restraining order or injunction, however, shall issue except upon notice to the person sought to be enjoined. That person shall be entitled to a trial of the issues commencing within three days after filing of an answer to the complaint and a decision shall be rendered by the court within two days after the conclusion of the trial. If a final order or judgment of injunction is entered against the person sought to be enjoined, this final order or judgment shall contain a provision directing the person to surrender to the sheriff of the county in which the action was brought any pornographic material in his possession which is subject to the injunction; and the sheriff shall be directed to seize and destroy this material.
(2) Any person not qualified to do business in the state who sends or brings any pornographic material into the state with the intent to distribute or exhibit it to others in this state thereby consents that he may be sued in any proceedings commenced under this section and therefor appoints the director of the Division of Corporations and Commercial Code to be the agent upon whom may be served all legal process against that person. Service of process shall be made by serving a copy of same upon the director of the Division of Corporations and Commercial Code or by filing the copy in that office, together with payment of a fee determined by the division pursuant to Section [63-38-3.2] 63J-1-303. This service shall be sufficient service upon the defendant if:
(a) notice of the service and a copy of the process are within ten days thereafter sent by mail by the prosecuting attorney to the defendant at the address of the defendant that appears on any material exhibited or distributed, and if no address appears, then the last known address of the defendant; and
(b) the prosecuting attorney's affidavit of compliance with the provisions of this subsection are attached to the summons. The Division of Corporations and Commercial Code shall keep a record of all the process served upon it under this section, showing the day and hour of the service. Nothing in this subsection shall be construed to limit the operation of Rule 17(e) of the Utah Rules of Civil Procedure.
(3) This section shall not be construed in any way to limit the district courts in the exercise of their jurisdiction under any other provision of law.
Section 2202. Section 76-10-1231 is amended to read:
76-10-1231
. Data service providers -- Internet content harmful to minors.(1) (a) Upon request by a consumer, a service provider shall filter content to prevent the transmission of material harmful to minors to the consumer.
(b) A service provider complies with Subsection (1)(a) if it uses a generally accepted and commercially reasonable method of filtering.
(2) At the time of a consumer's subscription to a service provider's service, or at the time this section takes effect if the consumer subscribes to the service provider's service at the time this section takes effect, the service provider shall notify the consumer in a conspicuous manner that the consumer may request to have material harmful to minors blocked under Subsection (1).
(3) (a) A service provider may comply with Subsection (1) by:
(i) providing in-network filtering to prevent receipt of material harmful to minors, provided that the filtering does not affect or interfere with access to Internet content for consumers who do not request filtering under Subsection (1); or
(ii) providing software, or engaging a third party to provide software, for contemporaneous installation on the consumer's computer that blocks, in an easy-to-enable and commercially reasonable manner, receipt of material harmful to minors.
(b) A service provider may charge a consumer for providing filtering under Subsection (3)(a).
(4) If the attorney general determines that a service provider violates Subsection (1) or (2), the attorney general shall:
(a) notify the service provider that the service provider is in violation of Subsection (1) or (2); and
(b) notify the service provider that the service provider has 30 days to comply with the provision being violated or be subject to Subsection (5).
(5) A service provider that violates Subsection (1) or (2) is:
(a) subject to a civil fine of $2,500 for each separate violation of Subsection (1) or (2), up to $10,000 per day; and
(b) guilty of a class A misdemeanor if:
(i) the service provider knowingly or intentionally fails to comply with Subsection (1); or
(ii) the service provider fails to provide the notice required by Subsection (2).
(6) A proceeding to impose a civil fine under Subsection (5)(a) may only be brought by the attorney general in a court of competent jurisdiction.
(7) (a) The Division of Consumer Protection within the Department of Commerce shall, in consultation with other entities as the Division of Consumer Protection considers appropriate, test the effectiveness of a service provider's system for blocking material harmful to minors under Subsection (1) at least annually.
(b) The results of testing by the Division of Consumer Protection under Subsection (7)(a) shall be made available to:
(i) the service provider that is the subject of the test; and
(ii) the public.
(c) The Division of Consumer Protection shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to fulfil its duties under this section.
Section 2203. Section 76-10-1234 is amended to read:
76-10-1234
. Rulemaking authority.The Division of Consumer Protection shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish acceptable rating methods to be implemented by a content provider under Subsection 76-10-1233(1).
Section 2204. Section 76-10-1311 is amended to read:
76-10-1311
. Mandatory testing -- Retention of offender medical file -- Civil liability.(1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty and mentally ill, or been found guilty for violation of Section 76-10-1302, 76-10-1303, or 76-10-1313 shall be required to submit to a mandatory test to determine if the offender is an HIV positive individual. The mandatory test shall be required and conducted prior to sentencing.
(2) If the mandatory test has not been conducted prior to sentencing, and the convicted offender is already confined in a county jail or state prison, such person shall be tested while in confinement.
(3) The local law enforcement agency shall cause the blood specimen of the offender as defined in Subsection (1) confined in county jail to be taken and tested.
(4) The Department of Corrections shall cause the blood specimen of the offender defined in Subsection (1) confined in any state prison to be taken and tested.
(5) The local law enforcement agency shall collect and retain in the offender's medical file the following data:
(a) the HIV infection test results;
(b) a copy of the written notice as provided in Section 76-10-1312;
(c) photographic identification; and
(d) fingerprint identification.
(6) The local law enforcement agency shall classify the medical file as a private record pursuant to Subsection [63-2-302] 63G-2-302(1)(b) or a controlled record pursuant to Section [63-2-303] 63G-2-304.
(7) The person tested shall be responsible for the costs of testing, unless the person is indigent. The costs will then be paid by the local law enforcement agency or the Department of Corrections from the General Fund.
(8) (a) The laboratory performing testing shall report test results to only designated officials in the Department of Corrections, the Department of Health, and the local law enforcement agency submitting the blood specimen.
(b) Each department or agency shall designate those officials by written policy.
(c) Designated officials may release information identifying an offender under Section 76-10-1302, 76-10-1303, or 76-10-1313 who has tested HIV positive as provided under Subsection [63-2-202] 63G-2-202(1) and for purposes of prosecution pursuant to Section 76-10-1309.
(9) (a) An employee of the local law enforcement agency, the Department of Corrections, or the Department of Health who discloses the HIV test results under this section is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided in Section [63-30d-202] 63G-7-202.
(b) An employee of the local law enforcement agency, the Department of Corrections, or the Department of Health who discloses the HIV test results under this section is not civilly or criminally liable, except when disclosure constitutes a knowing violation of Section [63-2-801] 63G-2-801.
(10) When the medical file is released as provided in Section [63-2-803] 63G-2-803, the local law enforcement agency, the Department of Corrections, or the Department of Health or its officers or employees are not liable for damages for release of the medical file.
Section 2205. Section 76-10-1602 is amended to read:
76-10-1602
. Definitions.As used in this part:
(1) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, and includes illicit as well as licit entities.
(2) "Pattern of unlawful activity" means engaging in conduct which constitutes the commission of at least three episodes of unlawful activity, which episodes are not isolated, but have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate continuing unlawful conduct and be related either to each other or to the enterprise. At least one of the episodes comprising a pattern of unlawful activity shall have occurred after July 31, 1981. The most recent act constituting part of a pattern of unlawful activity as defined by this part shall have occurred within five years of the commission of the next preceding act alleged as part of the pattern.
(3) "Person" includes any individual or entity capable of holding a legal or beneficial interest in property, including state, county, and local governmental entities.
(4) "Unlawful activity" means to directly engage in conduct or to solicit, request, command, encourage, or intentionally aid another person to engage in conduct which would constitute any offense described by the following crimes or categories of crimes, or to attempt or conspire to engage in an act which would constitute any of those offenses, regardless of whether the act is in fact charged or indicted by any authority or is classified as a misdemeanor or a felony:
(a) any act prohibited by the criminal provisions of Title 13, Chapter 10, Unauthorized Recording Practices Act;
(b) any act prohibited by the criminal provisions of Title 19, Environmental Quality Code, Sections 19-1-101 through 19-7-109;
(c) taking, destroying, or possessing wildlife or parts of wildlife for the primary purpose of sale, trade, or other pecuniary gain, in violation of Title 23, Chapter 13, Wildlife Resources Code of Utah, or Section 23-20-4;
(d) false claims for medical benefits, kickbacks, and any other act prohibited by False Claims Act, Sections 26-20-1 through 26-20-12;
(e) any act prohibited by the criminal provisions of Title 32A, Chapter 12, Criminal Offenses;
(f) any act prohibited by the criminal provisions of Title 57, Chapter 11, Utah Uniform Land Sales Practices Act;
(g) any act prohibited by the criminal provisions of Title 58, Chapter 37, Utah Controlled Substances Act, or Title 58, Chapter 37b, Imitation Controlled Substances Act, Title 58, Chapter 37c, Utah Controlled Substance Precursor Act, or Title 58, Chapter 37d, Clandestine Drug Lab Act;
(h) any act prohibited by the criminal provisions of Title 61, Chapter 1, Utah Uniform Securities Act;
(i) any act prohibited by the criminal provisions of [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code;
(j) assault or aggravated assault, Sections 76-5-102 and 76-5-103;
(k) a terroristic threat, Section 76-5-107;
(l) criminal homicide, Sections 76-5-201, 76-5-202, and 76-5-203;
(m) kidnapping or aggravated kidnapping, Sections 76-5-301 and 76-5-302;
(n) sexual exploitation of a minor, Section 76-5a-3;
(o) arson or aggravated arson, Sections 76-6-102 and 76-6-103;
(p) causing a catastrophe, Section 76-6-105;
(q) burglary or aggravated burglary, Sections 76-6-202 and 76-6-203;
(r) burglary of a vehicle, Section 76-6-204;
(s) manufacture or possession of an instrument for burglary or theft, Section 76-6-205;
(t) robbery or aggravated robbery, Sections 76-6-301 and 76-6-302;
(u) theft, Section 76-6-404;
(v) theft by deception, Section 76-6-405;
(w) theft by extortion, Section 76-6-406;
(x) receiving stolen property, Section 76-6-408;
(y) theft of services, Section 76-6-409;
(z) forgery, Section 76-6-501;
(aa) fraudulent use of a credit card, Sections 76-6-506.1, 76-6-506.2, and 76-6-506.4;
(bb) deceptive business practices, Section 76-6-507;
(cc) bribery or receiving bribe by person in the business of selection, appraisal, or criticism of goods, Section 76-6-508;
(dd) bribery of a labor official, Section 76-6-509;
(ee) defrauding creditors, Section 76-6-511;
(ff) acceptance of deposit by insolvent financial institution, Section 76-6-512;
(gg) unlawful dealing with property by fiduciary, Section 76-6-513;
(hh) bribery or threat to influence contest, Section 76-6-514;
(ii) making a false credit report, Section 76-6-517;
(jj) criminal simulation, Section 76-6-518;
(kk) criminal usury, Section 76-6-520;
(ll) fraudulent insurance act, Section 76-6-521;
(mm) retail theft, Section 76-6-602;
(nn) computer crimes, Section 76-6-703;
(oo) identity fraud, Section 76-6-1102;
(pp) sale of a child, Section 76-7-203;
(qq) bribery to influence official or political actions, Section 76-8-103;
(rr) threats to influence official or political action, Section 76-8-104;
(ss) receiving bribe or bribery by public servant, Section 76-8-105;
(tt) receiving bribe or bribery for endorsement of person as public servant, Section 76-8-106;
(uu) official misconduct, Sections 76-8-201 and 76-8-202;
(vv) obstruction of justice, Section 76-8-306;
(ww) acceptance of bribe or bribery to prevent criminal prosecution, Section 76-8-308;
(xx) false or inconsistent material statements, Section 76-8-502;
(yy) false or inconsistent statements, Section 76-8-503;
(zz) written false statements, Section 76-8-504;
(aaa) tampering with a witness or soliciting or receiving a bribe, Section 76-8-508;
(bbb) retaliation against a witness, victim, or informant, Section 76-8-508.3;
(ccc) extortion or bribery to dismiss criminal proceeding, Section 76-8-509;
(ddd) public assistance fraud in violation of Section 76-8-1203, 76-8-1204, or 76-8-1205;
(eee) unemployment insurance fraud, Section 76-8-1301;
(fff) intentionally or knowingly causing one animal to fight with another, Subsection 76-9-301(1)(f);
(ggg) possession, use, or removal of explosives, chemical, or incendiary devices or parts, Section 76-10-306;
(hhh) delivery to common carrier, mailing, or placement on premises of an incendiary device, Section 76-10-307;
(iii) possession of a deadly weapon with intent to assault, Section 76-10-507;
(jjj) unlawful marking of pistol or revolver, Section 76-10-521;
(kkk) alteration of number or mark on pistol or revolver, Section 76-10-522;
(lll) forging or counterfeiting trademarks, trade name, or trade device, Section 76-10-1002;
(mmm) selling goods under counterfeited trademark, trade name, or trade devices, Section 76-10-1003;
(nnn) sales in containers bearing registered trademark of substituted articles, Section 76-10-1004;
(ooo) selling or dealing with article bearing registered trademark or service mark with intent to defraud, Section 76-10-1006;
(ppp) gambling, Section 76-10-1102;
(qqq) gambling fraud, Section 76-10-1103;
(rrr) gambling promotion, Section 76-10-1104;
(sss) possessing a gambling device or record, Section 76-10-1105;
(ttt) confidence game, Section 76-10-1109;
(uuu) distributing pornographic material, Section 76-10-1204;
(vvv) inducing acceptance of pornographic material, Section 76-10-1205;
(www) dealing in harmful material to a minor, Section 76-10-1206;
(xxx) distribution of pornographic films, Section 76-10-1222;
(yyy) indecent public displays, Section 76-10-1228;
(zzz) prostitution, Section 76-10-1302;
(aaaa) aiding prostitution, Section 76-10-1304;
(bbbb) exploiting prostitution, Section 76-10-1305;
(cccc) aggravated exploitation of prostitution, Section 76-10-1306;
(dddd) communications fraud, Section 76-10-1801;
(eeee) any act prohibited by the criminal provisions of Title 76, Chapter 10, Part 19, Money Laundering and Currency Transaction Reporting Act;
(ffff) any act prohibited by the criminal provisions of the laws governing taxation in this state; and
(gggg) any act illegal under the laws of the United States and enumerated in Title 18, Section 1961 (1)(B), (C), and (D) of the United States Code.
Section 2206. Section 77-2-4.2 is amended to read:
77-2-4.2
. Compromise of traffic charges -- Limitations.(1) As used in this section:
(a) "Compromise" means referral of a person charged with a traffic violation to traffic school or other school, class, or remedial or rehabilitative program.
(b) "Traffic violation" means any charge for which bail may be forfeited in lieu of appearance, by citation or information, of a violation of:
(i) Title 41, Chapter 6a, Traffic Code, amounting to:
(A) a class B misdemeanor;
(B) a class C misdemeanor; or
(C) an infraction; or
(ii) any local traffic ordinance.
(2) Any compromise of a traffic violation shall be done pursuant to a plea in abeyance agreement as provided in Title 77, Chapter 2a, Pleas in Abeyance, except:
(a) when the criminal prosecution is dismissed pursuant to Section 77-2-4; or
(b) when there is a plea by the defendant to and entry of a judgment by a court for the offense originally charged or for an amended charge.
(3) In all cases which are compromised pursuant to the provisions of Subsection (2):
(a) the court, taking into consideration the offense charged, shall collect a plea in abeyance fee which shall:
(i) be subject to the same surcharge as if imposed on a criminal fine;
(ii) be allocated subject to the surcharge as if paid as a criminal fine under Section 78-3-14.5 and a surcharge under [Title 63, Chapter 63a] Title 51, Chapter 9, Part 4, Crime Victim Reparation Trust, Public Safety Support Funds, Substance Abuse Prevention Account, and Services for Victims of Domestic Violence Account; and
(iii) be not more than $25 greater than the bail designated in the Uniform Bail Schedule; or
(b) if no plea in abeyance fee is collected, a surcharge on the fee charged for the traffic school or other school, class, or rehabilitative program shall be collected, which surcharge shall:
(i) be computed, assessed, collected, and remitted in the same manner as if the traffic school fee and surcharge had been imposed as a criminal fine and surcharge; and
(ii) be subject to the financial requirements contained in [Title 63, Chapter 63a] Title 51, Chapter 9, Part 4, Crime Victim Reparation Trust, Public Safety Support Funds, Substance Abuse Prevention Account, and Services for Victims of Domestic Violence Account.
(4) If a written plea in abeyance agreement is provided, or the defendant requests a written accounting, an itemized statement of all amounts assessed by the court shall be provided, including:
(a) the Uniform Bail Schedule amount;
(b) the amount of any surcharges being assessed; and
(c) the amount of the plea in abeyance fee.
Section 2207. Section 77-2a-3 is amended to read:
77-2a-3
. Manner of entry of plea -- Powers of court.(1) (a) Acceptance of any plea in anticipation of a plea in abeyance agreement shall be done in full compliance with the provisions of Rule 11, Utah Rules of Criminal Procedure.
(b) In cases charging offenses for which bail may be forfeited, a plea in abeyance agreement may be entered into without a personal appearance before a magistrate.
(2) A plea in abeyance agreement may provide that the court may, upon finding that the defendant has successfully completed the terms of the agreement:
(a) reduce the degree of the offense and enter judgment of conviction and impose sentence for a lower degree of offense; or
(b) allow withdrawal of defendant's plea and order the dismissal of the case.
(3) Upon finding that a defendant has successfully completed the terms of a plea in abeyance agreement, the court may reduce the degree of the offense or dismiss the case only as provided in the plea in abeyance agreement or as agreed to by all parties. Upon sentencing a defendant for any lesser offense pursuant to a plea in abeyance agreement, the court may not invoke Section 76-3-402 to further reduce the degree of the offense.
(4) The court may require the Department of Corrections to assist in the administration of the plea in abeyance agreement as if the defendant were on probation to the court under Section 77-18-1.
(5) The terms of a plea in abeyance agreement may include:
(a) an order that the defendant pay a nonrefundable plea in abeyance fee, with a surcharge based on the amount of the plea in abeyance fee, both of which shall be allocated in the same manner as if paid as a fine for a criminal conviction under Section 78-3-14.5 and a surcharge under [Title 63, Chapter 63a] Title 51, Chapter 9, Part 4, Crime Victim Reparation Trust, Public Safety Support Funds, Substance Abuse Prevention Account, and Services for Victims of Domestic Violence Account, and which may not exceed in amount the maximum fine and surcharge which could have been imposed upon conviction and sentencing for the same offense;
(b) an order that the defendant pay restitution to the victims of his actions as provided in Title 77, Chapter 38a, Crime Victims Restitution Act;
(c) an order that the defendant pay the costs of any remedial or rehabilitative program required by the terms of the agreement; and
(d) an order that the defendant comply with any other conditions which could have been imposed as conditions of probation upon conviction and sentencing for the same offense.
(6) A court may not hold a plea in abeyance without the consent of both the prosecuting attorney and the defendant. A decision by a prosecuting attorney not to agree to a plea in abeyance is final.
(7) No plea may be held in abeyance in any case involving a sexual offense against a victim who is under the age of 14.
(8) Beginning on July 1, 2008, no plea may be held in abeyance in any case involving a driving under the influence violation under Section 41-6a-502.
Section 2208. Section 77-10a-5 is amended to read:
77-10a-5
. Grand jurors -- Qualification and selection -- Limits on disclosure.(1) Grand jurors shall meet the qualifications provided for jurors generally in Title 78, Chapter 46, Jury Selection and Service Act. Grand jurors shall be selected from the qualified jury list as provided in Section 78-46-12.
(2) The names of grand jurors are classified as protected records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records and Access Management Act.
Section 2209. Section 77-18-1 is amended to read:
77-18-1
. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions -- Termination, revocation, modification, or extension -- Hearings -- Electronic monitoring.(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a, Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
(2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime or offense, the court may, after imposing sentence, suspend the execution of the sentence and place the defendant on probation. The court may place the defendant:
(i) on probation under the supervision of the Department of Corrections except in cases of class C misdemeanors or infractions;
(ii) on probation with an agency of local government or with a private organization; or
(iii) on bench probation under the jurisdiction of the sentencing court.
(b) (i) The legal custody of all probationers under the supervision of the department is with the department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court is vested as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(3) (a) The department shall establish supervision and presentence investigation standards for all individuals referred to the department. These standards shall be based on:
(i) the type of offense;
(ii) the demand for services;
(iii) the availability of agency resources;
(iv) the public safety; and
(v) other criteria established by the department to determine what level of services shall be provided.
(b) Proposed supervision and investigation standards shall be submitted to the Judicial Council and the Board of Pardons and Parole on an annual basis for review and comment prior to adoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement the supervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to the standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
(e) The Judicial Council and the department shall annually prepare an impact report and submit it to the appropriate legislative appropriations subcommittee.
(4) Notwithstanding other provisions of law, the department is not required to supervise the probation of persons convicted of class B or C misdemeanors or infractions or to conduct presentence investigation reports on class C misdemeanors or infractions. However, the department may supervise the probation of class B misdemeanants in accordance with department standards.
(5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the department or information from other sources about the defendant.
(b) The presentence investigation report shall include a victim impact statement according to guidelines set in Section 77-38a-203 describing the effect of the crime on the victim and the victim's family.
(c) The presentence investigation report shall include a specific statement of pecuniary damages, accompanied by a recommendation from the department regarding the payment of restitution with interest by the defendant in accordance with Title 77, Chapter 38a, Crime Victims Restitution Act.
(d) The presentence investigation report shall include:
(i) findings from any screening and any assessment of the offender conducted under Section 77-18-1.1; and
(ii) recommendations for treatment of the offender.
(e) The contents of the presentence investigation report, including any diagnostic evaluation report ordered by the court under Section 76-3-404, are protected and are not available except by court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the department.
(6) (a) The department shall provide the presentence investigation report to the defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review, three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at the time of sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, or information the defendant or the prosecuting attorney desires to present concerning the appropriate sentence. This testimony, evidence, or information shall be presented in open court on record and in the presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that the defendant:
(a) perform any or all of the following:
(i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
(ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
(iii) provide for the support of others for whose support he is legally liable;
(iv) participate in available treatment programs, including any treatment program in which the defendant is currently participating, if the program is acceptable to the court;
(v) serve a period of time, not to exceed one year, in a county jail designated by the department, after considering any recommendation by the court as to which jail the court finds most appropriate;
(vi) serve a term of home confinement, which may include the use of electronic monitoring;
(vii) participate in compensatory service restitution programs, including the compensatory service program provided in Section 78-11-20.7;
(viii) pay for the costs of investigation, probation, and treatment services;
(ix) make restitution or reparation to the victim or victims with interest in accordance with Title 77, Chapter 38a, Crime Victims Restitution Act; and
(x) comply with other terms and conditions the court considers appropriate; and
(b) if convicted on or after May 5, 1997:
(i) complete high school classwork and obtain a high school graduation diploma, a GED certificate, or a vocational certificate at the defendant's own expense if the defendant has not received the diploma, GED certificate, or vocational certificate prior to being placed on probation; or
(ii) provide documentation of the inability to obtain one of the items listed in Subsection (8)(b)(i) because of:
(A) a diagnosed learning disability; or
(B) other justified cause.
(9) The department shall collect and disburse the account receivable as defined by Section 76-3-201.1, with interest and any other costs assessed under Section 64-13-21 during:
(a) the parole period and any extension of that period in accordance with Subsection 77-27-6(4); and
(b) the probation period in cases for which the court orders supervised probation and any extension of that period by the department in accordance with Subsection (10).
(10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon completion without violation of 36 months probation in felony or class A misdemeanor cases, or 12 months in cases of class B or C misdemeanors or infractions.
(ii) (A) If, upon expiration or termination of the probation period under Subsection (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section 76-3-201.1, the court may retain jurisdiction of the case and continue the defendant on bench probation for the limited purpose of enforcing the payment of the account receivable.
(B) In accordance with Section 77-18-6, the court shall record in the registry of civil judgments any unpaid balance not already recorded and immediately transfer responsibility to collect the account to the Office of State Debt Collection.
(iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its own motion, the court may require the defendant to show cause why his failure to pay should not be treated as contempt of court.
(b) (i) The department shall notify the sentencing court, the Office of State Debt Collection, and the prosecuting attorney in writing in advance in all cases when termination of supervised probation will occur by law.
(ii) The notification shall include a probation progress report and complete report of details on outstanding accounts receivable.
(11) (a) (i) Any time served by a probationer outside of confinement after having been charged with a probation violation and prior to a hearing to revoke probation does not constitute service of time toward the total probation term unless the probationer is exonerated at a hearing to revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocation of probation does not constitute service of time toward the total probation term unless the probationer is exonerated at the hearing.
(b) The running of the probation period is tolled upon the filing of a violation report with the court alleging a violation of the terms and conditions of probation or upon the issuance of an order to show cause or warrant by the court.
(12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing by the probationer or upon a hearing and a finding in court that the probationer has violated the conditions of probation.
(ii) Probation may not be revoked except upon a hearing in court and a finding that the conditions of probation have been violated.
(b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute violation of the conditions of probation, the court that authorized probation shall determine if the affidavit establishes probable cause to believe that revocation, modification, or extension of probation is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on the defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his probation should not be revoked, modified, or extended.
(c) (i) The order to show cause shall specify a time and place for the hearing and shall be served upon the defendant at least five days prior to the hearing.
(ii) The defendant shall show good cause for a continuance.
(iii) The order to show cause shall inform the defendant of a right to be represented by counsel at the hearing and to have counsel appointed for him if he is indigent.
(iv) The order shall also inform the defendant of a right to present evidence.
(d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
(ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall present evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are based shall be presented as witnesses subject to questioning by the defendant unless the court for good cause otherwise orders.
(iv) The defendant may call witnesses, appear and speak in his own behalf, and present evidence.
(e) (i) After the hearing the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the conditions of probation, the court may order the probation revoked, modified, continued, or that the entire probation term commence anew.
(iii) If probation is revoked, the defendant shall be sentenced or the sentence previously imposed shall be executed.
(13) The court may order the defendant to commit himself to the custody of the Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of sentence, only after the superintendent of the Utah State Hospital or his designee has certified to the court that:
(a) the defendant is appropriate for and can benefit from treatment at the state hospital;
(b) treatment space at the hospital is available for the defendant; and
(c) persons described in Subsection 62A-15-610(2)(g) are receiving priority for treatment over the defendants described in this Subsection (13).
(14) Presentence investigation reports, including presentence diagnostic evaluations, are classified protected in accordance with [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections [63-2-403] 63G-2-403 and [63-2-404] 63G-2-404, the State Records Committee may not order the disclosure of a presentence investigation report. Except for disclosure at the time of sentencing pursuant to this section, the department may disclose the presentence investigation only when:
(a) ordered by the court pursuant to Subsection [63-2-202] 63G-2-202(7);
(b) requested by a law enforcement agency or other agency approved by the department for purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or the subject's authorized representative; or
(e) requested by the victim of the crime discussed in the presentence investigation report or the victim's authorized representative, provided that the disclosure to the victim shall include only information relating to statements or materials provided by the victim, to the circumstances of the crime including statements by the defendant, or to the impact of the crime on the victim or the victim's household.
(15) (a) The court shall consider home confinement as a condition of probation under the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
(b) The department shall establish procedures and standards for home confinement, including electronic monitoring, for all individuals referred to the department in accordance with Subsection (16).
(16) (a) If the court places the defendant on probation under this section, it may order the defendant to participate in home confinement through the use of electronic monitoring as described in this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate law enforcement unit of the defendant's whereabouts.
(c) The electronic monitoring device shall be used under conditions which require:
(i) the defendant to wear an electronic monitoring device at all times; and
(ii) that a device be placed in the home of the defendant, so that the defendant's compliance with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronic monitoring as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department of Corrections;
(ii) order the department to place an electronic monitoring device on the defendant and install electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to the department or the program provider.
(e) The department shall pay the costs of home confinement through electronic monitoring only for those persons who have been determined to be indigent by the court.
(f) The department may provide the electronic monitoring described in this section either directly or by contract with a private provider.
Section 2210. Section 77-18-11 is amended to read:
77-18-11
. Petition -- Expungement of conviction -- Certificate of eligibility -- Fee -- Notice -- Written evaluation -- Objections -- Hearing.(1) A person convicted of a crime may petition the convicting court for an expungement of the record of conviction.
(2) (a) The court shall require receipt of a certificate of eligibility issued by the division under Section 77-18-12.
(b) The fee for each certificate of eligibility is $25. This fee remains in effect until changed by the division through the process under Section [63-38-3.2] 63J-1-303.
(c) Funds generated under Subsection (2)(b) shall be deposited in the General Fund as a dedicated credit by the department to cover the costs incurred in providing the information.
(3) The petition and certificate of eligibility shall be filed with the court and served upon the prosecuting attorney and the Department of Corrections.
(4) A victim shall receive notice of a petition for expungement if, prior to the entry of an expungement order, the victim or, in the case of a minor or a person who is incapacitated or deceased, the victim's next of kin or authorized representative, submits a written and signed request for notice to the office of the Department of Corrections in the judicial district in which the crime occurred or judgment was entered.
(5) The Department of Corrections shall serve notice of the expungement request by first-class mail to the victim at the most recent address of record on file with the department. The notice shall include a copy of the petition, certificate of eligibility, and statutes and rules applicable to the petition.
(6) The court in its discretion may request a written evaluation by Adult Parole and Probation of the Department of Corrections.
(a) The evaluation shall include a recommendation concerning the petition for expungement.
(b) If expungement is recommended, the evaluation shall include certification that the petitioner has completed all requirements of sentencing and probation or parole and state any rationale that would support or refute consideration for expungement.
(c) The conclusions and recommendations contained in the evaluation shall be provided to the petitioner and the prosecuting attorney.
(7) If the prosecuting attorney or a victim submits a written objection to the court concerning the petition within 30 days after service of the notice, or if the petitioner objects to the conclusions and recommendations in the evaluation within 15 days after receipt of the conclusions and recommendations, the court shall set a date for a hearing and notify the prosecuting attorney for the jurisdiction, the petitioner, and the victim of the date set for the hearing.
(8) Any person who has relevant information about the petitioner may testify at the hearing.
(9) The prosecuting attorney may respond to the court with a recommendation or objection within 30 days.
(10) If an objection is not received under Subsection (7), the expungement may be granted without a hearing.
(11) A court may not expunge a conviction of:
(a) a capital felony;
(b) a first degree felony;
(c) a second degree forcible felony;
(d) any sexual act against a minor; or
(e) an offense for which a certificate of eligibility may not be issued under Section 77-18-12.
Section 2211. Section 77-18-15 is amended to read:
77-18-15
. Retention of expunged records -- Agencies.(1) The division shall keep, index, and maintain all expunged records of arrests and convictions.
(2) Employees of the division may not divulge any information contained in its index to any person or agency without a court order, except to the following:
(a) the Board of Pardons and Parole;
(b) the Peace Officer Standards and Training;
(c) federal authorities, unless prohibited by federal law;
(d) the Division of Occupational and Professional Licensing; and
(e) the State Office of Education.
(3) The division may also use the information in its index for the purpose of establishing good character for issuance of a concealed firearm permit as provided in Section 53-5-704.
(4) A person whose records are released under Subsection (2) shall be given a reasonable opportunity by the recipient agency to challenge and explain any information in the records and to challenge the relevancy of that information before a final determination is made by the agency.
(5) A court may permit inspection or release of an expunged record only upon petition by the person who is the subject of the record and only to the persons named in the petition.
(6) (a) For judicial sentencing, a court may order any records sealed under this section to be opened and admitted into evidence.
(b) The records are confidential and are available for inspection only by the court, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.
(c) At the end of the action or proceeding, the court shall order the records sealed again.
(7) Records released under this section are classified as protected under Section [63-2-304] 63G-2-305 and are accessible only as provided under [Title 63, Chapter 2] Title 63G, Chapter 2, Part 2, Access to Records.
Section 2212. Section 77-19-6 is amended to read:
77-19-6
. Judgment of death -- Warrant -- Delivery of warrant -- Determination of execution time.(1) (a) When judgment of death is rendered, a warrant, signed by the judge and attested by the clerk under the seal of the court, shall be drawn and delivered to the sheriff of the county where the conviction is had.
(b) The sheriff shall deliver the warrant and a certified copy of the judgment to the executive director of the Department of Corrections or his designee at the time of delivering the defendant to the custody of the Department of Corrections.
(2) The warrant shall state the conviction, the judgment, the method of execution, and the appointed day the judgment is to be executed, which may not be fewer than 30 days nor more than 60 days from the date of issuance of the warrant, and may not be a Sunday, Monday, or a legal holiday, as defined in Section [63-13-2] 63G-1-301.
(3) The Department of Corrections shall determine the hour, within the appointed day, at which the judgment is to be executed.
Section 2213. Section 77-19-9 is amended to read:
77-19-9
. Judgment of death not executed -- Order for execution.(1) If for any reason a judgment of death has not been executed and remains in force, the court where the conviction was had, on application of the prosecuting attorney, shall order the defendant to be brought before it or, if he is at large, issue a warrant for his apprehension.
(2) When the defendant is brought before the court, it shall inquire into the facts and, if no legal reason exists against the execution of judgment, the court shall make an order requiring the executive director of the Department of Corrections or his designee to ensure that the judgment is executed on a specified day, which may not be fewer than 30 nor more than 60 days after the court's order, and may not be a Sunday, Monday, or a legal holiday, as defined in Section [63-13-2] 63G-1-301. The court shall also draw and have delivered another warrant under Section 77-19-6.
(3) The Department of Corrections shall determine the hour, within the appointed day, at which the judgment is to be executed.
Section 2214. Section 77-19-202 is amended to read:
77-19-202
. Incompetency or pregnancy of person sentenced to death -- Procedures.(1) If, after judgment of death, the executive director of the Department of Corrections has good reason to believe that an inmate sentenced to death is pregnant, or has good reason to believe that an inmate's competency to be executed under this chapter should be addressed by a court, the executive director of the Department of Corrections or his designee shall immediately give written notice to the court in which the judgment of death was rendered, to the prosecuting attorney, and counsel for the inmate. The judgment shall be stayed pending further order of the court.
(2) (a) On receipt of the notice under Subsection (1) of good reason for the court to address an inmate's competency to be executed, the court shall order that the mental condition of the inmate shall be examined under the provisions of Section 77-19-204.
(b) If the inmate is found incompetent, the court shall immediately transmit a certificate of the findings to the Board of Pardons and Parole and continue the stay of execution pending further order of the court.
(c) If the inmate is subsequently found competent at any time, the judge shall immediately transmit a certificate of the findings to the Board of Pardons and Parole, and shall draw and have delivered another warrant under Section 77-19-6, together with a copy of the certificate of the findings. The warrant shall state an appointed day on which the judgment is to be executed, which may not be fewer than 30 nor more than 60 days from the date of the drawing of the warrant, and which may not be a Sunday, Monday, or a legal holiday, as defined in Section [63-13-2] 63G-1-301.
(3) (a) If the court finds the inmate is pregnant, it shall immediately transmit a certificate of the finding to the Board of Pardons and Parole and to the executive director of the Department of Corrections or his designee, and the court shall issue an order staying the execution of the judgment of death during the pregnancy.
(b) When the court determines the inmate is no longer pregnant, it shall immediately transmit a certificate of the finding to the Board of Pardons and Parole and draw and have delivered another warrant under Section 77-19-6, with a copy of the certificate of the finding. The warrant shall state an appointed day on which the judgment is to be executed, which may not be fewer than 30 nor more than 60 days from the date of the drawing of the warrant, and which may not be a Sunday, Monday, or a legal holiday, as defined in Section [63-13-2] 63G-1-301.
(4) The Department of Corrections shall determine the hour, within the appointed day, at which the judgment is to be executed.
Section 2215. Section 77-22-2 is amended to read:
77-22-2
. Investigations -- Right to subpoena witnesses and require production of evidence -- Contents of subpoena -- Rights of witnesses -- Interrogation before closed court -- Disclosure of information.(1) As used in this section, "prosecutor" means the attorney general, county attorney, or district attorney.
(2) (a) In any matter involving the investigation of a crime or malfeasance in office, or any criminal conspiracy or activity, the prosecutor may, upon application and approval of the district court and for good cause shown, conduct a criminal investigation.
(b) The application and statement of good cause shall state whether or not any other investigative order related to the investigation at issue has been filed in another court.
(3) (a) Subject to the conditions established in Subsection (3)(b), the prosecutor may:
(i) subpoena witnesses;
(ii) compel their attendance and testimony under oath to be recorded by a suitable electronic recording device or to be given before any certified court reporter; and
(iii) require the production of books, papers, documents, recordings, and any other items that constitute evidence or may be relevant to the investigation.
(b) The prosecutor shall:
(i) apply to the district court for each subpoena; and
(ii) show that the requested information is reasonably related to the criminal investigation authorized by the court.
(4) (a) The prosecutor shall state in each subpoena:
(i) the time and place of the examination;
(ii) that the subpoena is issued in aid of a criminal investigation; and
(iii) the right of the person subpoenaed to have counsel present.
(b) The examination may be conducted anywhere within the jurisdiction of the prosecutor issuing the subpoena.
(c) The subpoena need not disclose the names of possible defendants.
(d) Witness fees and expenses shall be paid as in a civil action.
(5) (a) At the beginning of each compelled interrogation, the prosecutor shall personally inform each witness:
(i) of the general subject matter of the investigation;
(ii) of the privilege to, at any time during the proceeding, refuse to answer any question or produce any evidence of a communicative nature that may result in self-incrimination;
(iii) that any information provided may be used against the witness in a subsequent criminal proceeding; and
(iv) of the right to have counsel present.
(b) If the prosecutor has substantial evidence that the subpoenaed witness has committed a crime that is under investigation, the prosecutor shall:
(i) inform the witness in person before interrogation of that witness's target status; and
(ii) inform the witness of the nature of the charges under consideration against the witness.
(6) (a) (i) The prosecutor may make written application to any district court showing a reasonable likelihood that publicly releasing information about the identity of a witness or the substance of the evidence resulting from a subpoena or interrogation would pose a threat of harm to a person or otherwise impede the investigation.
(ii) Upon a finding of reasonable likelihood, the court may order the:
(A) interrogation of a witness be held in secret;
(B) occurrence of the interrogation and other subpoenaing of evidence, the identity of the person subpoenaed, and the substance of the evidence obtained be kept secret; and
(C) record of testimony and other subpoenaed evidence be kept secret unless the court for good cause otherwise orders.
(b) After application, the court may by order exclude from any investigative hearing or proceeding any persons except:
(i) the attorneys representing the state and members of their staffs;
(ii) persons who, in the judgment of the attorneys representing the state, are reasonably necessary to assist in the investigative process;
(iii) the court reporter or operator of the electronic recording device; and
(iv) the attorney for the witness.
(c) This chapter does not prevent attorneys representing the state or members of their staff from disclosing information obtained pursuant to this chapter for the purpose of furthering any official governmental investigation.
(d) (i) If a secrecy order has been granted by the court regarding the interrogation or disclosure of evidence by a witness under this subsection, and if the court finds a further restriction on the witness is appropriate, the court may order the witness not to disclose the substance of the witness's testimony or evidence given by the witness to others.
(ii) Any order to not disclose made under this subsection shall be served with the subpoena.
(iii) In an appropriate circumstance the court may order that the witness not disclose the existence of the investigation to others.
(iv) Any order under this Subsection (6)(d) must be based upon a finding by the court that one or more of the following risks exist:
(A) disclosure by the witness would cause destruction of evidence;
(B) disclosure by the witness would taint the evidence provided by other witnesses;
(C) disclosure by the witness to a target of the investigation would result in flight or other conduct to avoid prosecution;
(D) disclosure by the witness would damage a person's reputation; or
(E) disclosure by the witness would cause a threat of harm to any person.
(e) (i) If the court imposes an order under Subsection (6)(d) authorizing an instruction to a witness not to disclose the substance of testimony or evidence provided and the prosecuting agency proves by a preponderance of the evidence that a witness has violated that order, the court may hold the witness in contempt.
(ii) An order of secrecy imposed on a witness under this Subsection (6)(e) may not infringe on the attorney-client relationship between the witness and his attorney or on any other legally recognized privileged relationship.
(7) (a) (i) The prosecutor may submit to any district court a separate written request that the application, statement of good cause, and the court's order authorizing the investigation be kept secret.
(ii) The request for secrecy is a public record under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, but need not contain any information that would compromise any of the interest listed in Subsection (7)(c).
(b) With the court's permission, the prosecutor may submit to the court, in camera, any additional information to support the request for secrecy if necessary to avoid compromising the interests listed in Subsection (7)(c).
(c) The court shall consider all information in the application and order authorizing the investigation and any information received in camera and shall order that all information be placed in the public file except information that, if disclosed, would pose:
(i) a substantial risk of harm to a person's safety;
(ii) a clearly unwarranted invasion of or harm to a person's reputation or privacy; or
(iii) a serious impediment to the investigation.
(d) Before granting an order keeping secret documents and other information received under this section, the court shall narrow the secrecy order as much as reasonably possible in order to preserve the openness of court records while protecting the interests listed in Subsection (7)(c).
Section 2216. Section 77-27-7 is amended to read:
77-27-7
. Parole or hearing dates -- Interview -- Hearings -- Report of alienists -- Mental competency.(1) The Board of Pardons and Parole shall determine within six months after the date of an offender's commitment to the custody of the Department of Corrections, for serving a sentence upon conviction of a felony or class A misdemeanor offense, a date upon which the offender shall be afforded a hearing to establish a date of release or a date for a rehearing, and shall promptly notify the offender of the date.
(2) Before reaching a final decision to release any offender under this chapter, the chair shall cause the offender to appear before the board, its panel, or any appointed hearing officer, who shall personally interview the offender to consider his fitness for release and verify as far as possible information furnished from other sources. Any offender may waive a personal appearance before the board. Any offender outside of the state shall, if ordered by the board, submit to a courtesy hearing to be held by the appropriate authority in the jurisdiction in which the offender is housed in lieu of an appearance before the board. The offender shall be promptly notified in writing of the board's decision.
(3) (a) In the case of an offender convicted of violating or attempting to violate any of the provisions of Section 76-5-301.1, Subsection 76-5-302(1)(b)(vi), Section 76-5-402, 76-5-402.1, 76-5-402.2, 76-5-402.3, 76-5-403, 76-5-403.1, 76-5-404, 76-5-404.1, or 76-5-405, the chair may appoint one or more alienists who shall examine the offender within six months prior to a hearing at which an original parole date is granted on any offense listed in this Subsection (3).
(b) The alienists shall report in writing the results of the examination to the board prior to the hearing. The report of the appointed alienists shall specifically address the question of the offender's current mental condition and attitudes as they relate to any danger the offender may pose to children or others if the offender is released on parole.
(4) The parolee may petition the board for termination of lifetime parole as provided in Section 76-3-202 in the case of a person convicted of a first degree felony violation or convicted of attempting to violate Section 76-5-301.1, Subsection 76-5-302(1)(b)(vi), Section 76-5-402, 76-5-402.1, 76-5-402.2, 76-5-402.3, 76-5-403, 76-5-403.1, 76-5-404.1, or 76-5-405.
(5) In any case where an offender's mental competency is questioned by the board, the chair may appoint one or more alienists to examine the offender and report in writing to the board, specifically addressing the issue of competency.
(6) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board shall make rules governing:
(a) the hearing process;
(b) alienist examination; and
(c) parolee petitions for termination of parole.
Section 2217. Section 77-27-9 is amended to read:
77-27-9
. Parole proceedings.(1) (a) The Board of Pardons and Parole may pardon or parole any offender or commute or terminate the sentence of any offender committed to a penal or correctional facility under the jurisdiction of the Department of Corrections for a felony or class A misdemeanor except as provided in Subsection (2).
(b) The board may not release any offender before the minimum term has been served unless the board finds mitigating circumstances which justify the release and unless the board has granted a full hearing, in open session, after previous notice of the time and place of the hearing, and recorded the proceedings and decisions of the board.
(c) The board may not pardon or parole any offender or commute or terminate the sentence of any offender unless the board has granted a full hearing, in open session, after previous notice of the time and place of the hearing, and recorded the proceedings and decisions of the board.
(d) The release of an offender shall be at the initiative of the board, which shall consider each case as the offender becomes eligible. However, a prisoner may submit his own application, subject to the rules of the board promulgated in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(2) (a) A person sentenced to prison prior to April 29, 1996, for a first degree felony involving child kidnapping, a violation of Section 76-5-301.1; aggravated kidnapping, a violation of Section 76-5-302; rape of a child, a violation of Section 76-5-402.1; object rape of a child, a violation of Section 76-5-402.3; sodomy upon a child, a violation of Section 76-5-403.1; aggravated sexual abuse of a child, a violation of Subsection 76-5-404.1(4); aggravated sexual assault, a violation of Section 76-5-405; or a prior offense as described in Section 76-3-407, may not be eligible for release on parole by the Board of Pardons and Parole until the offender has fully completed serving the minimum mandatory sentence imposed by the court. This Subsection (2)(a) supersedes any other provision of law.
(b) The board may not parole any offender or commute or terminate the sentence of any offender before the offender has served the minimum term for the offense, if the offender was sentenced prior to April 29, 1996, and if:
(i) the offender was convicted of forcible sexual abuse, forcible sodomy, rape, aggravated assault, kidnapping, aggravated kidnapping, or aggravated sexual assault as defined in Title 76, Chapter 5, Offenses Against the Person; and
(ii) the victim of the offense was under 18 years of age at the time the offense was committed.
(c) For a crime committed on or after April 29, 1996, the board may parole any offender under Subsections (2)(b)(i) and (ii) for lifetime parole as provided in this section.
(d) The board may not pardon or parole any offender or commute or terminate the sentence of any offender who is sentenced to life in prison without parole except as provided in Subsection (6).
(e) On or after April 27, 1992, the board may commute a sentence of death only to a sentence of life in prison without parole.
(f) The restrictions imposed in Subsections(2)(d) and (e) apply to all cases that come before the Board of Pardons and Parole on or after April 27, 1992.
(g) (i) As used in this Subsection (2)(g):
(A) "Assessment" has the same meaning as in Section 41-6a-501.
(B) "Screening" has the same meaning as in Section 41-6a-501.
(C) "Substance abuse treatment" has the same meaning as in Section 77-18-1.1.
(ii) Except as provided in Subsection (2)(g)(iii), the board may not parole any offender who has not:
(A) participated in a screening within six months prior to the parole date; and
(B) participated in an assessment within six months prior to the parole date, if an assessment is indicated to be appropriate by the screening.
(iii) The board may parole an offender who has not met the requirements of Subsection (2)(g)(ii) upon the condition that the offender, within 45 days of being paroled:
(A) participates in a screening; and
(B) participates in an assessment if it is indicated to be appropriate by the screening.
(iv) When the board grants an offender parole, it shall order as a condition of parole that the offender participate in substance abuse treatment if:
(A) the assessment conducted under this Subsection (2)(g) indicates substance abuse treatment is appropriate; and
(B) the board finds the offender to be an appropriate candidate for community-based supervision.
(v) Moneys appropriated by the Legislature for the funding of the screening, assessment, and substance abuse treatment provided under this section are not subject to any requirement regarding matching funds from a state or local governmental entity.
(3) (a) The board may issue subpoenas to compel the attendance of witnesses and the production of evidence, to administer oaths, and to take testimony for the purpose of any investigation by the board or any of its members or by a designated hearing examiner in the performance of its duties.
(b) A person who willfully disobeys a properly served subpoena issued by the board is guilty of a class B misdemeanor.
(4) (a) The board may adopt rules consistent with law for its government, meetings and hearings, the conduct of proceedings before it, the parole and pardon of offenders, the commutation and termination of sentences, and the general conditions under which parole may be granted and revoked.
(b) The rules shall ensure an adequate opportunity for victims to participate at hearings held under this chapter, as provided in Section 77-27-9.5.
(c) The rules may allow the board to establish reasonable and equitable time limits on the presentations by all participants in hearings held under this chapter.
(5) The board does not provide counseling or therapy for victims as a part of their participation in any hearing under this chapter.
(6) The board may parole a person sentenced to life in prison without parole if the board finds by clear and convincing evidence that the person is permanently incapable of being a threat to the safety of society.
Section 2218. Section 77-27-10 is amended to read:
77-27-10
. Conditions of parole -- Rulemaking -- Intensive early release parole program.(1) (a) When the Board of Pardons and Parole releases an offender on parole, it shall issue to the parolee a certificate setting forth the conditions of parole which he shall accept and agree to as evidenced by his signature affixed to the agreement.
(b) A copy of the agreement shall be delivered to the Department of Corrections and a copy shall be given to the parolee. The original shall remain with the board's file.
(2) If an offender convicted of violating or attempting to violate Section 76-5-301.1, Subsection 76-5-302(1), Section 76-5-402, 76-5-402.1, 76-5-402.2, 76-5-402.3, 76-5-403, 76-5-403.1, 76-5-404, 76-5-404.1, or 76-5-405, is released on parole, the board shall order outpatient mental health counseling and treatment as a condition of parole. The board shall develop standards and conditions of parole under this subsection in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act. This subsection does not apply to intensive early release parole.
(3) (a) In addition to the conditions set out in Subsection (1), the board may place offenders in an intensive early release parole program. The board shall determine the conditions of parole which are reasonably necessary to protect the community as well as to protect the interests of the offender and to assist the offender to lead a law-abiding life.
(b) The offender is eligible for this program only if he:
(i) has not been convicted of a sexual offense; or
(ii) has not been sentenced pursuant to Section 76-3-406.
(c) The department shall:
(i) promulgate rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for operation of the program;
(ii) adopt and implement internal management policies for operation of the program;
(iii) determine whether or not to refer an offender into this program within 120 days from the date the offender is committed to prison by the sentencing court; and
(iv) make the final recommendation to the board regarding the placement of an offender into the program.
(d) The department shall not consider credit for time served in a county jail awaiting trial or sentencing when calculating the 120 day period.
(e) The prosecuting attorney or sentencing court may refer an offender for consideration by the department for participation in the program.
(f) The board shall determine whether or not to place an offender into this program within 30 days of receiving the department's recommendation.
(4) This program shall be implemented by the department within the existing budget.
(5) During the time the offender is on parole, the department shall collect from the offender the monthly supervision fee authorized by Section 64-13-21.
Section 2219. Section 77-27-21.5 is amended to read:
77-27-21.5
. Sex offender registration -- Information system -- Law enforcement and courts to report -- Registration -- Penalty -- Effect of expungement.(1) As used in this section:
(a) "Department" means the Department of Corrections.
(b) "Division" means the Division of Juvenile Justice Services.
(c) "Employed" or "carries on a vocation" includes employment that is full time or part time, whether financially compensated, volunteered, or for the purpose of government or educational benefit.
(d) "Notification" means a person's acquisition of information from the department about a sex offender, including his place of habitation, physical description, and other information as provided in Subsections (12) and (13).
(e) "Register" means to comply with the rules of the department made under this section.
(f) "Sex offender" means any person:
(i) convicted by this state of:
(A) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor over the Internet;
(B) Section 76-5-301.1, kidnapping of a child;
(C) a felony violation of Section 76-5-401, unlawful sexual activity with a minor;
(D) Section 76-5-401.1, sexual abuse of a minor;
(E) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
(F) Section 76-5-402, rape;
(G) Section 76-5-402.1, rape of a child;
(H) Section 76-5-402.2, object rape;
(I) Section 76-5-402.3, object rape of a child;
(J) a felony violation of Section 76-5-403, forcible sodomy;
(K) Section 76-5-403.1, sodomy on a child;
(L) Section 76-5-404, forcible sexual abuse;
(M) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child;
(N) Section 76-5-405, aggravated sexual assault;
(O) Section 76-5a-3, sexual exploitation of a minor;
(P) Section 76-7-102, incest;
(Q) Section 76-9-702.5, lewdness involving a child;
(R) Section 76-10-1306, aggravated exploitation of prostitution; or
(S) attempting, soliciting, or conspiring to commit any felony offense listed in Subsection (1)(f)(i);
(ii) who has been convicted of any crime, or an attempt, solicitation, or conspiracy to commit a crime in another state or by the United States government that is substantially equivalent to the offenses listed in Subsection (1)(f)(i) and who is:
(A) a Utah resident; or
(B) not a Utah resident, but who is in the state for ten days, regardless of whether or not the offender intends to permanently reside in this state;
(iii) who is required to register as a sex offender in any other state or United States territory, is not a Utah resident, but who is in the state for ten days, regardless of whether or not the offender intends to permanently reside in this state;
(iv) who is a nonresident regularly employed, working, or a student in this state and was convicted of one or more offenses listed in Subsection (1)(f)(i), or any substantially equivalent offense in another state or by the United States government, and as a result of the conviction, is required to register in the person's state of residence;
(v) who is found not guilty by reason of insanity in this state, any other state, or by the United States government of one or more offenses listed in Subsection (1)(f)(i); or
(vi) who is adjudicated delinquent based on one or more offenses listed in Subsection (1)(f)(i) and who has been committed to the division for secure confinement and remains in the division's custody 30 days prior to the person's 21st birthday.
(2) The department, to assist in investigating sex-related crimes and in apprehending offenders, shall:
(a) develop and operate a system to collect, analyze, maintain, and disseminate information on sex offenders and sex offenses; and
(b) make information collected and developed under this section available to the public.
(3) Any law enforcement agency shall, in the manner prescribed by the department, inform the department of:
(a) the receipt of a report or complaint of an offense listed in Subsection (1)(f), within three working days; and
(b) the arrest of a person suspected of any of the offenses listed in Subsection (1)(f), within five working days.
(4) Upon convicting a person of any of the offenses listed in Subsection (1)(f), the convicting court shall within three working days forward a copy of the judgment and sentence to the department.
(5) A sex offender in the custody of the department shall be registered by agents of the department upon:
(a) being placed on probation;
(b) commitment to a secure correctional facility operated by or under contract to the department;
(c) release from confinement to parole status, termination or expiration of sentence, or escape;
(d) entrance to and release from any community-based residential program operated by or under contract to the department; or
(e) termination of probation or parole.
(6) A sex offender not in the custody of the department and who is confined in a correctional facility not operated by or under contract to the department shall be registered with the department by the sheriff of the county in which the offender is confined upon:
(a) commitment to the correctional facility; and
(b) release from confinement.
(7) A sex offender in the custody of the division shall be registered with the department by the division prior to release from custody.
(8) A sex offender committed to a state mental hospital shall be registered with the department by the hospital upon admission and upon discharge.
(9) A sex offender convicted by any other state or by the United States government is required to register under Subsection (1)(f)(ii) and shall register with the department within ten days of entering the state, regardless of the length of stay.
(10) (a) Except as provided in Subsections (10)(b), (c), and (d), a sex offender shall, for the duration of the sentence and for ten years after termination of sentence or custody of the division, register annually during the month of the offender's birth and again within five days of every change of his place of habitation, vehicle information, or educational information required to be submitted under Subsection (12).
(b) Except as provided Subsections (10)(c) and (d), a sex offender who is convicted of an offense listed in Subsection (1)(f)(i) by another state shall register for the time period required by the state where the offender was convicted if the state's registration period for the offense that the offender was convicted of is in excess of the ten years from completion of the sentence registration period that is required under Subsection (10)(a).
(c) (i) A sex offender convicted as an adult of any of the offenses listed in Subsection (10)(c)(ii) shall, for the offender's lifetime, register annually during the month of the offender's birth and again within five days of every change of the offender's place of habitation, vehicle information, or educational information required to be submitted under Subsection (12). This registration requirement is not subject to exemptions and may not be terminated or altered during the offender's lifetime.
(ii) Offenses referred to in Subsection (10)(c)(i) are:
(A) any offense listed in Subsection (1)(f) if, at the time of the conviction, the offender has previously been convicted of an offense listed in Subsection (1)(f) or has previously been required to register as a sex offender for an offense committed as a juvenile;
(B) Section 76-4-401, enticing a minor over the Internet, if the offense is a class A or felony violation;
(C) Section 76-5-301.1, child kidnapping;
(D) Section 76-5-402, rape;
(E) Section 76-5-402.1, rape of a child;
(F) Section 76-5-402.2, object rape;
(G) Section 76-5-402.3, object rape of a child;
(H) Section 76-5-403, forcible sodomy;
(I) Section 76-5-403.1, sodomy on a child;
(J) Section 76-5-404.1, sexual abuse of a child;
(K) Subsection 76-5-404.1(4), aggravated sexual abuse of a child;
(L) Section 76-5-405, aggravated sexual assault;
(M) Section 76-5a-3, sexual exploitation of a minor; or
(N) Section 76-7-102, incest.
(d) Notwithstanding Subsections (10)(a), (b), and (c), a sex offender who is confined in a secure facility or in a state mental hospital is not required to register annually.
(e) A sex offender that is required to register annually under this Subsection (10) shall surrender the sex offender's license certificate or identification card as required under Subsection 53-3-216(3) or 53-3-807(4) and may apply for a license certificate or identification card as provided under Section 53-3-205 or 53-3-804.
(11) An agency in the state that registers a sex offender on probation, a sex offender who has been released from confinement to parole status or termination, or a sex offender whose sentence has expired shall inform the offender of the duty to comply with:
(a) the continuing registration requirements of this section during the period of registration required in Subsection (10), including:
(i) notification to the state agencies in the states where the registrant presently resides and plans to reside when moving across state lines;
(ii) verification of address at least every 60 days pursuant to a parole agreement for lifetime parolees; and
(iii) notification to the out-of-state agency where the offender is living, whether or not the offender is a resident of that state; and
(b) the driver license certificate or identification card surrender requirement under Subsection 53-3-216(3) or 53-3-807(4) and application provisions under Section 53-3-205 or 53-3-804.
(12) A sex offender shall provide the department with the following information:
(a) all names or aliases the sex offender is or has been known by;
(b) the sex offender's name and residential address;
(c) a physical description, including the sex offender's age, height, weight, eye and hair color;
(d) the type of vehicle or vehicles the sex offender drives;
(e) a current photograph of the sex offender; and
(f) each educational institution in Utah at which the sex offender is employed, carries on a vocation, or is a student, and any change of enrollment or employment status of the sex offender at any educational institution.
(13) The department shall:
(a) provide the following additional information when available:
(i) the crimes the sex offender was convicted of or adjudicated delinquent for; and
(ii) a description of the sex offender's primary and secondary targets; and
(b) ensure that the registration information collected regarding a sex offender's enrollment or employment at an educational institution is:
(i) (A) promptly made available to any law enforcement agency that has jurisdiction where the institution is located if the educational institution is an institution of higher education; or
(B) promptly made available to the district superintendent of the school district where the offender is enrolled if the educational institution is an institution of primary education; and
(ii) entered into the appropriate state records or data system.
(14) (a) A sex offender who knowingly fails to register under this section is guilty of:
(i) a third degree felony and shall be sentenced to serve a term of incarceration for not less than 90 days and also at least one year of probation if:
(A) the sex offender is required to register for a felony conviction of an offense listed in Subsection (1)(f)(i); or
(B) the sex offender is required to register for the offender's lifetime under Subsection (10)(c); or
(ii) a class A misdemeanor and shall be sentenced to serve a term of incarceration for not fewer than 90 days and also at least one year of probation if the sex offender is required to register for a misdemeanor conviction of an offense listed in Subsection (1)(f)(i).
(b) Neither the court nor the Board of Pardons and Parole may release a person who violates this section from serving the term required under Subsection (14)(a). This Subsection (14)(b) supersedes any other provision of the law contrary to this section.
(15) Notwithstanding [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, information in Subsections (12) and (13) collected and released under this section is public information.
(16) (a) If a sex offender is to be temporarily sent outside a secure facility in which he is confined on any assignment, including, without limitation, firefighting or disaster control, the official who has custody of the offender shall, within a reasonable time prior to removal from the secure facility, notify the local law enforcement agencies where the assignment is to be filled.
(b) This Subsection (16) does not apply to any person temporarily released under guard from the institution in which he is confined.
(17) Notwithstanding Sections 77-18-9 through 77-18-14 regarding expungement, a person convicted of any offense listed in Subsection (1)(f) is not relieved from the responsibility to register as required under this section.
(18) Notwithstanding Section 42-1-1, a sex offender:
(a) may not change his name:
(i) while under the jurisdiction of the department; and
(ii) until the registration requirements of this statute have expired; or
(b) may not change his name at any time, if registration is under Subsection (10)(c).
(19) The department may make rules necessary to implement this section, including:
(a) the method for dissemination of the information; and
(b) instructions to the public regarding the use of the information.
(20) Any information regarding the identity or location of a victim shall be redacted by the department from information provided under Subsections (12) and (13).
(21) Nothing in this section shall be construed to create or impose any duty on any person to request or obtain information regarding any sex offender from the department.
(22) The department shall post registry information on the Internet, and the website shall contain a disclaimer informing the public of the following:
(a) the information contained on the site is obtained from sex offenders and the department does not guarantee its accuracy;
(b) members of the public are not allowed to use the information to harass or threaten sex offenders or members of their families; and
(c) harassment, stalking, or threats against sex offenders or their families are prohibited and doing so may violate Utah criminal laws.
(23) The website shall be indexed by both the surname of the offender and by postal codes.
(24) The department shall construct the website so that users, before accessing registry information, must indicate that they have read the disclaimer, understand it, and agree to comply with its terms.
(25) The department, its personnel, and any individual or entity acting at the request or upon the direction of the department are immune from civil liability for damages for good faith compliance with this section and will be presumed to have acted in good faith by reporting information.
(26) The department shall redact information that, if disclosed, could reasonably identify a victim.
(27) (a) Each sex offender required to register under Subsection (10), who is not currently under the jurisdiction of the Department of Corrections, shall pay to the department an annual fee of $75 each year the sex offender is subject to the registration requirements.
(b) The department shall deposit fees under this Subsection (27) in the General Fund as a dedicated credit, to be used by the department for maintaining the sex offender registry under this section and monitoring sex offender registration compliance, including the costs of:
(i) data entry;
(ii) processing registration packets;
(iii) updating registry information;
(iv) ensuring sex offender compliance with registration requirements under this section; and
(v) apprehending offenders who are in violation of the sex offender registration requirements under this section.
Section 2220. Section 77-28c-104 is amended to read:
77-28c-104
. Definitions -- Compact transfer application fee.(1) As used in this section:
(a) "Department" means the Department of Corrections.
(b) "Offender" has the same meaning as provided in Section 77-28c-103, Article II(a)(9).
(2) (a) Offenders desiring a transfer of supervision to another state under the Interstate Compact for Adult Offender Supervision shall apply to the department for transfer.
(b) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules governing the transfer of supervision of an offender.
(3) The department shall collect a fee of $50 from each offender applying for transfer of supervision to another state under the Interstate Compact for Adult Offender Supervision.
Section 2221. Section 77-37-3 is amended to read:
77-37-3
. Bill of Rights.(1) The bill of rights for victims and witnesses is:
(a) Victims and witnesses have a right to be informed as to the level of protection from intimidation and harm available to them, and from what sources, as they participate in criminal justice proceedings as designated by Section 76-8-508, regarding witness tampering, and Section 76-8-509, regarding threats against a victim. Law enforcement, prosecution, and corrections personnel have the duty to timely provide this information in a form that is useful to the victim.
(b) Victims and witnesses, including children and their guardians, have a right to be informed and assisted as to their role in the criminal justice process. All criminal justice agencies have the duty to provide this information and assistance.
(c) Victims and witnesses have a right to clear explanations regarding relevant legal proceedings; these explanations shall be appropriate to the age of child victims and witnesses. All criminal justice agencies have the duty to provide these explanations.
(d) Victims and witnesses should have a secure waiting area that does not require them to be in close proximity to defendants or the family and friends of defendants. Agencies controlling facilities shall, whenever possible, provide this area.
(e) Victims are entitled to restitution or reparations, including medical costs, as provided in [Title 63, Chapter 25a] Title 63M, Chapter 7, Criminal Justice and Substance Abuse, and Sections 62A-7-109, 77-38a-302, and 77-27-6. State and local government agencies that serve victims have the duty to have a functional knowledge of the procedures established by the Utah Crime Victims' Reparations Board and to inform victims of these procedures.
(f) Victims and witnesses have a right to have any personal property returned as provided in Sections 77-24-1 through 77-24-5. Criminal justice agencies shall expeditiously return the property when it is no longer needed for court law enforcement or prosecution purposes.
(g) Victims and witnesses have the right to reasonable employer intercession services, including pursuing employer cooperation in minimizing employees' loss of pay and other benefits resulting from their participation in the criminal justice process. Officers of the court shall provide these services and shall consider victims' and witnesses' schedules so that activities which conflict can be avoided. Where conflicts cannot be avoided, the victim may request that the responsible agency intercede with employers or other parties.
(h) Victims and witnesses, particularly children, should have a speedy disposition of the entire criminal justice process. All involved public agencies shall establish policies and procedures to encourage speedy disposition of criminal cases.
(i) Victims and witnesses have the right to timely notice of judicial proceedings they are to attend and timely notice of cancellation of any proceedings. Criminal justice agencies have the duty to provide these notifications. Defense counsel and others have the duty to provide timely notice to prosecution of any continuances or other changes that may be required.
(j) Victims of sexual offenses have a right to be informed of their right to request voluntary testing for themselves for HIV infection as provided in Section 76-5-503 and to request mandatory testing of the convicted sexual offender for HIV infection as provided in Section 76-5-502. The law enforcement office where the sexual offense is reported shall have the responsibility to inform victims of this right.
(2) Informational rights of the victim under this chapter are based upon the victim providing his current address and telephone number to the criminal justice agencies involved in the case.
Section 2222. Section 77-37-5 is amended to read:
77-37-5
. Remedies -- Victims' Rights Committee.(1) In each judicial district, the presiding district court judge shall appoint a person who shall establish and chair a victims' rights committee consisting of:
(a) a county attorney or district attorney;
(b) a sheriff;
(c) a corrections field services administrator;
(d) an appointed victim advocate;
(e) a municipal attorney;
(f) a municipal chief of police; and
(g) other representatives as appropriate.
(2) The committee shall meet at least semiannually to review progress and problems related to this chapter, Title 77, Chapter 38, Rights of Crime Victims Act, and Utah Constitution Article I, Section 28. Victims and other interested parties may submit matters of concern to the victims' rights committee. The committee may hold a hearing open to the public on any appropriate matter of concern and may publish its findings. These matters shall also be considered at the meetings of the victims' rights committee. The committee shall forward minutes of all meetings to the Commission on Criminal and Juvenile Justice and the Office of Crime Victim Reparations for review and other appropriate action.
(3) If a victims' rights committee is unable to resolve a complaint, it may refer the complaint to the Utah Council on Victims of Crime, established in Section [63-25a-601] 63M-7-601, for further consideration.
(4) The Office of Crime Victim Reparations shall provide materials to local law enforcement to inform every victim of a sexual offense of the right to request testing of the convicted sexual offender and of the victim as provided in Section 76-5-502.
(5) If a person acting under color of state law willfully or wantonly fails to perform duties so that the rights in this chapter are not provided, an action for injunctive relief may be brought against the individual and the government entity that employs the individual. The failure to provide the rights in this chapter or Title 77, Chapter 38, Rights of Crime Victims Act, does not constitute cause for a judgment against the state or any government entity, or any individual employed by the state or any government entity, for monetary damages, attorney's fees, or the costs of exercising any rights under this chapter.
(6) The person accused of and subject to prosecution for the crime or the act which would be a crime if committed by a competent adult, has no standing to make a claim concerning any violation of the provisions of this chapter.
Section 2223. Section 77-38-3 is amended to read:
77-38-3
. Notification to victims -- Initial notice, election to receive subsequent notices -- Form of notice -- Protected victim information.(1) Within seven days of the filing of felony criminal charges against a defendant, the prosecuting agency shall provide an initial notice to reasonably identifiable and locatable victims of the crime contained in the charges, except as otherwise provided in this chapter.
(2) The initial notice to the victim of a crime shall provide information about electing to receive notice of subsequent important criminal justice hearings listed in Subsections 77-38-2(5)(a) through (f) and rights under this chapter.
(3) The prosecuting agency shall provide notice to a victim of a crime for the important criminal justice hearings, provided in Subsections 77-38-2(5)(a) through (f) which the victim has requested.
(4) (a) The responsible prosecuting agency may provide initial and subsequent notices in any reasonable manner, including telephonically, electronically, orally, or by means of a letter or form prepared for this purpose.
(b) In the event of an unforeseen important criminal justice hearing, listed in Subsections 77-38-2(5)(a) through (f) for which a victim has requested notice, a good faith attempt to contact the victim by telephone shall be considered sufficient notice, provided that the prosecuting agency subsequently notifies the victim of the result of the proceeding.
(5) (a) The court shall take reasonable measures to ensure that its scheduling practices for the proceedings provided in Subsections 77-38-2(5)(a) through (f) permit an opportunity for victims of crimes to be notified.
(b) The court shall also consider whether any notification system that it might use to provide notice of judicial proceedings to defendants could be used to provide notice of those same proceedings to victims of crimes.
(6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give notice to the responsible prosecuting agency of any motion for modification of any determination made at any of the important criminal justice hearings provided in Subsections 77-38-2(5)(a) through (f) in advance of any requested court hearing or action so that the prosecuting agency may comply with its notification obligation.
(7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and Parole for the important criminal justice hearing provided in Subsection 77-38-2(5)(g).
(b) The board may provide notice in any reasonable manner, including telephonically, electronically, orally, or by means of a letter or form prepared for this purpose.
(8) Prosecuting agencies and the Board of Pardons and Parole are required to give notice to a victim of a crime for the proceedings provided in Subsections 77-38-2(5)(a) through (f) only where the victim has responded to the initial notice, requested notice of subsequent proceedings, and provided a current address and telephone number if applicable.
(9) (a) Law enforcement and criminal justice agencies shall refer any requests for notice or information about crime victim rights from victims to the responsible prosecuting agency.
(b) In a case in which the Board of Pardons and Parole is involved, the responsible prosecuting agency shall forward any request for notice that it has received from a victim to the Board of Pardons and Parole.
(10) In all cases where the number of victims exceeds ten, the responsible prosecuting agency may send any notices required under this chapter in its discretion to a representative sample of the victims.
(11) (a) A victim's address, telephone number, and victim impact statement maintained by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice Services, Department of Corrections, and Board of Pardons and Parole, for purposes of providing notice under this section, is classified as protected as provided in Subsection [63-2-304] 63G-2-305(10).
(b) The victim's address, telephone number, and victim impact statement is available only to the following persons or entities in the performance of their duties:
(i) a law enforcement agency, including the prosecuting agency;
(ii) a victims' right committee as provided in Section 77-37-5;
(iii) a governmentally sponsored victim or witness program;
(iv) the Department of Corrections;
(v) Office of Crime Victims' Reparations;
(vi) Commission on Criminal and Juvenile Justice; and
(vii) the Board of Pardons and Parole.
(12) The notice provisions as provided in this section do not apply to misdemeanors as provided in Section 77-38-5 and to important juvenile justice hearings as provided in Section 77-38-2.
Section 2224. Section 77-38a-401 is amended to read:
77-38a-401
. Entry of judgment -- Interest -- Civil actions -- Lien.(1) Upon the court determining that a defendant owes restitution, the clerk of the court shall enter an order of complete restitution as defined in Section 77-38a-302 on the civil judgment docket and provide notice of the order to the parties.
(2) The order shall be considered a legal judgment, enforceable under the Utah Rules of Civil Procedure. In addition, the department may, on behalf of the person in whose favor the restitution order is entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.
(3) If the defendant fails to obey a court order for payment of restitution and the victim or department elects to pursue collection of the order by civil process, the victim shall be entitled to recover reasonable attorney's fees.
(4) A judgment ordering restitution when recorded in a registry of judgments docket shall have the same affect and is subject to the same rules as a judgment in a civil action. Interest shall accrue on the amount ordered from the time of sentencing, including prejudgment interest.
(5) The department shall make rules permitting the restitution payments to be credited to principal first and the remainder of payments credited to interest in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2225. Section 78-2-2 is amended to read:
78-2-2
. Supreme Court jurisdiction.(1) The Supreme Court has original jurisdiction to answer questions of state law certified by a court of the United States.
(2) The Supreme Court has original jurisdiction to issue all extraordinary writs and authority to issue all writs and process necessary to carry into effect its orders, judgments, and decrees or in aid of its jurisdiction.
(3) The Supreme Court has appellate jurisdiction, including jurisdiction of interlocutory appeals, over:
(a) a judgment of the Court of Appeals;
(b) cases certified to the Supreme Court by the Court of Appeals prior to final judgment by the Court of Appeals;
(c) discipline of lawyers;
(d) final orders of the Judicial Conduct Commission;
(e) final orders and decrees in formal adjudicative proceedings originating with:
(i) the Public Service Commission;
(ii) the State Tax Commission;
(iii) the School and Institutional Trust Lands Board of Trustees;
(iv) the Board of Oil, Gas, and Mining;
(v) the state engineer; or
(vi) the executive director of the Department of Natural Resources reviewing actions of the Division of Forestry, Fire and State Lands;
(f) final orders and decrees of the district court review of informal adjudicative proceedings of agencies under Subsection (3)(e);
(g) a final judgment or decree of any court of record holding a statute of the United States or this state unconstitutional on its face under the Constitution of the United States or the Utah Constitution;
(h) interlocutory appeals from any court of record involving a charge of a first degree or capital felony;
(i) appeals from the district court involving a conviction or charge of a first degree felony or capital felony;
(j) orders, judgments, and decrees of any court of record over which the Court of Appeals does not have original appellate jurisdiction; and
(k) appeals from the district court of orders, judgments, or decrees ruling on legislative subpoenas.
(4) The Supreme Court may transfer to the Court of Appeals any of the matters over which the Supreme Court has original appellate jurisdiction, except:
(a) capital felony convictions or an appeal of an interlocutory order of a court of record involving a charge of a capital felony;
(b) election and voting contests;
(c) reapportionment of election districts;
(d) retention or removal of public officers;
(e) matters involving legislative subpoenas; and
(f) those matters described in Subsections (3)(a) through (d).
(5) The Supreme Court has sole discretion in granting or denying a petition for writ of certiorari for the review of a Court of Appeals adjudication, but the Supreme Court shall review those cases certified to it by the Court of Appeals under Subsection (3)(b).
(6) The Supreme Court shall comply with the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its review of agency adjudicative proceedings.
Section 2226. Section 78-2a-3 is amended to read:
78-2a-3
. Court of Appeals jurisdiction.(1) The Court of Appeals has jurisdiction to issue all extraordinary writs and to issue all writs and process necessary:
(a) to carry into effect its judgments, orders, and decrees; or
(b) in aid of its jurisdiction.
(2) The Court of Appeals has appellate jurisdiction, including jurisdiction of interlocutory appeals, over:
(a) the final orders and decrees resulting from formal adjudicative proceedings of state agencies or appeals from the district court review of informal adjudicative proceedings of the agencies, except the Public Service Commission, State Tax Commission, School and Institutional Trust Lands Board of Trustees, Division of Forestry, Fire and State Lands actions reviewed by the executive director of the Department of Natural Resources, Board of Oil, Gas, and Mining, and the state engineer;
(b) appeals from the district court review of:
(i) adjudicative proceedings of agencies of political subdivisions of the state or other local agencies; and
(ii) a challenge to agency action under Section [63-46a-12.1] 63G-3-602;
(c) appeals from the juvenile courts;
(d) interlocutory appeals from any court of record in criminal cases, except those involving a charge of a first degree or capital felony;
(e) appeals from a court of record in criminal cases, except those involving a conviction or charge of a first degree felony or capital felony;
(f) appeals from orders on petitions for extraordinary writs sought by persons who are incarcerated or serving any other criminal sentence, except petitions constituting a challenge to a conviction of or the sentence for a first degree or capital felony;
(g) appeals from the orders on petitions for extraordinary writs challenging the decisions of the Board of Pardons and Parole except in cases involving a first degree or capital felony;
(h) appeals from district court involving domestic relations cases, including, but not limited to, divorce, annulment, property division, child custody, support, parent-time, visitation, adoption, and paternity;
(i) appeals from the Utah Military Court; and
(j) cases transferred to the Court of Appeals from the Supreme Court.
(3) The Court of Appeals upon its own motion only and by the vote of four judges of the court may certify to the Supreme Court for original appellate review and determination any matter over which the Court of Appeals has original appellate jurisdiction.
(4) The Court of Appeals shall comply with the requirements of [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in its review of agency adjudicative proceedings.
Section 2227. Section 78-2a-6 is amended to read:
78-2a-6
. Appellate Mediation Office -- Protected records and information -- Governmental immunity.(1) Unless a more restrictive rule of court is adopted pursuant to Subsection [63-2-201] 63G-2-201(3)(b), information and records relating to any matter on appeal received or generated by the Chief Appellate Mediator or other staff of the Appellate Mediation Office as a result of any party's participation or lack of participation in the settlement program shall be maintained as protected records pursuant to Subsections [63-2-304] 63G-2-305(16), (17), (18), and (33).
(2) In addition to the access restrictions on protected records provided in Section [63-2-202] 63G-2-202, the information and records may not be disclosed to judges, staff, or employees of any court of this state.
(3) The Chief Appellate Mediator may disclose statistical and other demographic information as may be necessary and useful to report on the status and to allow supervision and oversight of the Appellate Mediation Office.
(4) When acting as mediators, the Chief Appellate Mediator and other professional staff of the Appellate Mediation Office shall be immune from liability pursuant to [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(5) Pursuant to Utah Constitution, Article VIII, Section 4, the Supreme Court may exercise overall supervision of the Appellate Mediation Office as part of the appellate process.
Section 2228. Section 78-3-4 is amended to read:
78-3-4
. Jurisdiction -- Appeals.(1) The district court has original jurisdiction in all matters civil and criminal, not excepted in the Utah Constitution and not prohibited by law.
(2) The district court judges may issue all extraordinary writs and other writs necessary to carry into effect their orders, judgments, and decrees.
(3) The district court has jurisdiction over matters of lawyer discipline consistent with the rules of the Supreme Court.
(4) The district court has jurisdiction over all matters properly filed in the circuit court prior to July 1, 1996.
(5) The district court has appellate jurisdiction to adjudicate trials de novo of the judgments of the justice court and of the small claims department of the district court.
(6) Appeals from the final orders, judgments, and decrees of the district court are under Sections 78-2-2 and 78-2a-3.
(7) The district court has jurisdiction to review:
(a) agency adjudicative proceedings as set forth in [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, and shall comply with the requirements of that chapter, in its review of agency adjudicative proceedings; and
(b) municipal administrative proceedings in accordance with Section 10-3-703.7.
(8) Notwithstanding Subsection (1), the district court has subject matter jurisdiction in class B misdemeanors, class C misdemeanors, infractions, and violations of ordinances only if:
(a) there is no justice court with territorial jurisdiction;
(b) the matter was properly filed in the circuit court prior to July 1, 1996;
(c) the offense occurred within the boundaries of the municipality in which the district courthouse is located and that municipality has not formed a justice court; or
(d) they are included in an indictment or information covering a single criminal episode alleging the commission of a felony or a class A misdemeanor.
(9) The district court has jurisdiction of actions under Title 78, Chapter 3h, Child Protective Orders, if the juvenile court transfers the case to the district court.
Section 2229. Section 78-3-24.1 is amended to read:
78-3-24.1
. Grants to nonprofit legal assistance organization.Subject to legislative appropriation, the state court administrator shall, in accordance with [Title 63, Chapter 56] Title 63G, Chapter 6, Utah Procurement Code, solicit requests for proposals and award grants to nonprofit legal assistance providers to provide legal assistance throughout the state to:
(1) low to moderate income victims of domestic violence; and
(2) low to moderate income individuals in family law matters.
Section 2230. Section 78-3a-104 is amended to read:
78-3a-104
. Jurisdiction of juvenile court -- Original -- Exclusive.(1) Except as otherwise provided by law, the juvenile court has exclusive original jurisdiction in proceedings concerning:
(a) a child who has violated any federal, state, or local law or municipal ordinance or a person younger than 21 years of age who has violated any law or ordinance before becoming 18 years of age, regardless of where the violation occurred, excluding traffic laws and boating and ordinances;
(b) a person 21 years of age or older who has failed or refused to comply with an order of the juvenile court to pay a fine or restitution, if the order was imposed prior to the person's 21st birthday; however, the continuing jurisdiction is limited to causing compliance with existing orders;
(c) a child who is an abused child, neglected child, or dependent child, as those terms are defined in Section 78-3a-103;
(d) a protective order for a child pursuant to the provisions of Title 78, Chapter 3h, Child Protective Orders, which the juvenile court may transfer to the district court if the juvenile court has entered an ex parte protective order and finds that:
(i) the petitioner and the respondent are the natural parent, adoptive parent, or step parent of the child who is the object of the petition;
(ii) the district court has a petition pending or an order related to custody or parent-time entered under Title 30, Chapter 3, Divorce, Title 30, Chapter 6, Cohabitant Abuse Act, or Title 78, Chapter 45g, Utah Uniform Parentage Act, in which the petitioner and the respondent are parties; and
(iii) the best interests of the child will be better served in the district court;
(e) appointment of a guardian of the person or other guardian of a minor who comes within the court's jurisdiction under other provisions of this section;
(f) the emancipation of a minor in accordance with Part 10, Emancipation;
(g) the termination of the legal parent-child relationship in accordance with Part 4, Termination of Parental Rights Act, including termination of residual parental rights and duties;
(h) the treatment or commitment of a mentally retarded minor;
(i) a minor who is a habitual truant from school;
(j) the judicial consent to the marriage of a child under age 16 upon a determination of voluntariness or where otherwise required by law, employment, or enlistment of a child when consent is required by law;
(k) any parent or parents of a child committed to a secure youth corrections facility, to order, at the discretion of the court and on the recommendation of a secure facility, the parent or parents of a child committed to a secure facility for a custodial term, to undergo group rehabilitation therapy under the direction of a secure facility therapist, who has supervision of that parent's or parents' child, or any other therapist the court may direct, for a period directed by the court as recommended by a secure facility;
(l) a minor under Title 55, Chapter 12, Interstate Compact for Juveniles;
(m) the treatment or commitment of a mentally ill child. The court may commit a child to the physical custody of a local mental health authority in accordance with the procedures and requirements of Title 62A, Chapter 15, Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and Mental Health. The court may not commit a child directly to the Utah State Hospital;
(n) the commitment of a child in accordance with Section 62A-15-301;
(o) de novo review of final agency actions resulting from an informal adjudicative proceeding as provided in Section [63-46b-15] 63G-4-402; and
(p) adoptions conducted in accordance with the procedures described in Title 78, Chapter 30, Adoption, when the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.
(2) In addition to the provisions of Subsection (1)(a) the juvenile court has exclusive jurisdiction over any traffic or boating offense committed by a person under 16 years of age and concurrent jurisdiction over all other traffic or boating offenses committed by a person 16 years of age or older, except that the court shall have exclusive jurisdiction over the following offenses committed by a child:
(a) Section 76-5-207, automobile homicide;
(b) Section 41-6a-502, operating a vehicle while under the influence of alcohol or drugs;
(c) Section 41-6a-528, reckless driving or Section 73-18-12, reckless operation;
(d) Section 41-1a-1314, unauthorized control over a motor vehicle, trailer, or semitrailer for an extended period of time; and
(e) Section 41-6a-210 or 73-18-20, fleeing a peace officer.
(3) The court also has jurisdiction over traffic and boating offenses that are part of a single criminal episode filed in a petition that contains an offense over which the court has jurisdiction.
(4) The juvenile court has jurisdiction over an ungovernable or runaway child who is referred to it by the Division of Child and Family Services or by public or private agencies that contract with the division to provide services to that child where, despite earnest and persistent efforts by the division or agency, the child has demonstrated that the child:
(a) is beyond the control of the child's parent, guardian, lawful custodian, or school authorities to the extent that the child's behavior or condition endangers the child's own welfare or the welfare of others; or
(b) has run away from home.
(5) This section does not restrict the right of access to the juvenile court by private agencies or other persons.
(6) The juvenile court has jurisdiction of all magistrate functions relative to cases arising under Section 78-3a-602.
(7) The juvenile court has jurisdiction to make a finding of substantiated, unsubstantiated, or without merit, in accordance with Section 78-3a-320.
Section 2231. Section 78-3a-113 is amended to read:
78-3a-113
. Minor taken into custody by peace officer, private citizen, or probation officer -- Grounds -- Notice requirements -- Release or detention -- Grounds for peace officer to take adult into custody.(1) A minor may be taken into custody by a peace officer without order of the court if:
(a) in the presence of the officer the minor has violated a state law, federal law, local law, or municipal ordinance;
(b) there are reasonable grounds to believe the minor has committed an act which if committed by an adult would be a felony;
(c) the minor:
(i) (A) is seriously endangered in the minor's surroundings; or
(B) seriously endangers others; and
(ii) immediate removal appears to be necessary for the minor's protection or the protection of others;
(d) there are reasonable grounds to believe the minor has run away or escaped from the minor's parents, guardian, or custodian; or
(e) there is reason to believe that the minor is:
(i) subject to the state's compulsory education law; and
(ii) absent from school without legitimate or valid excuse, subject to Section 53A-11-105.
(2) (a) A private citizen or a probation officer may take a minor into custody if under the circumstances he could make a citizen's arrest if the minor was an adult.
(b) A probation officer may also take a minor into custody under Subsection (1) or if the minor has violated the conditions of probation, if the minor is under the continuing jurisdiction of the juvenile court or in emergency situations in which a peace officer is not immediately available.
(3) (a) (i) If an officer or other person takes a minor into temporary custody, he shall without unnecessary delay notify the parents, guardian, or custodian.
(ii) The minor shall then be released to the care of the minor's parent or other responsible adult, unless the minor's immediate welfare or the protection of the community requires the minor's detention.
(b) If the minor is taken into custody or detention for a violent felony, as defined in Section 76-3-203.5, or an offense in violation of Title 76, Chapter 10, Part 5, Weapons, the officer or other law enforcement agent taking the minor into custody shall, as soon as practicable or as established under Subsection 53A-11-1001(2), notify the school superintendent of the district in which the minor resides or attends school for the purposes of the minor's supervision and student safety.
(i) The notice shall disclose only:
(A) the name of the minor;
(B) the offense for which the minor was taken into custody or detention; and
(C) if available, the name of the victim, if the victim:
(I) resides in the same school district as the minor; or
(II) attends the same school as the minor.
(ii) The notice shall be classified as a protected record under Section [63-2-304] 63G-2-305.
(iii) All other records disclosures are governed by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act and the Federal Family Educational Rights and Privacy Act.
(c) Employees of a governmental agency are immune from any criminal liability for providing or failing to provide the information required by this section unless the person acts or fails to act due to malice, gross negligence, or deliberate indifference to the consequences.
(d) Before the minor is released, the parent or other person to whom the minor is released shall be required to sign a written promise on forms supplied by the court to bring the minor to the court at a time set or to be set by the court.
(4) (a) A child may not be held in temporary custody by law enforcement any longer than is reasonably necessary to obtain the child's name, age, residence, and other necessary information and to contact the child's parents, guardian, or custodian.
(b) If the minor is not released under Subsection (3), the minor shall be taken to a place of detention or shelter without unnecessary delay.
(5) (a) The person who takes a minor to a detention or shelter facility shall promptly file with the detention or shelter facility a written report on a form provided by the division stating the details of the presently alleged offense, the facts which bring the minor within the jurisdiction of the juvenile court, and the reason the minor was not released by law enforcement.
(b) (i) The designated youth corrections facility staff person shall immediately review the form and determine, based on the guidelines for detention admissions established by the Division of Juvenile Justice Services under Section 62A-7-202, whether to admit the minor to secure detention, admit the minor to home detention, place the minor in a placement other than detention, or return the minor home upon written promise to bring the minor to the court at a time set, or without restriction.
(ii) If the designated youth corrections facility staff person determines to admit the minor to home detention, that staff person shall notify the juvenile court of that determination. The court shall order that notice be provided to the designated persons in the local law enforcement agency and the school or transferee school, if applicable, which the minor attends of the home detention. The designated persons may receive the information for purposes of the minor's supervision and student safety.
(iii) Any employee of the local law enforcement agency and the school which the minor attends who discloses the notification of home detention is not:
(A) civilly liable except when disclosure constitutes fraud or willful misconduct as provided in Section [63-30d-202] 63G-7-202; and
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of Section [63-2-801] 63G-2-801.
(c) A minor may not be admitted to detention unless the minor is detainable based on the guidelines or the minor has been brought to detention pursuant to a judicial order or division warrant pursuant to Section 62A-7-504.
(d) If a minor taken to detention does not qualify for admission under the guidelines established by the division under Section 62A-7-104, detention staff shall arrange appropriate placement.
(e) If a minor is taken into custody and admitted to a secure detention or shelter facility, facility staff shall:
(i) immediately notify the minor's parents, guardian, or custodian; and
(ii) promptly notify the court of the placement.
(f) If the minor is admitted to a secure detention or shelter facility outside the county of the minor's residence and it is determined in the hearing held under Subsection 78-3a-114(3) that detention shall continue, the judge or commissioner shall direct the sheriff of the county of the minor's residence to transport the minor to a detention or shelter facility as provided in this section.
(6) A person may be taken into custody by a peace officer without a court order if the person is in apparent violation of a protective order or if there is reason to believe that a child is being abused by the person and any of the situations outlined in Section 77-7-2 exist.
Section 2232. Section 78-3a-114 is amended to read:
78-3a-114
. Placement of minor in detention or shelter facility -- Grounds -- Detention hearings -- Period of detention -- Notice -- Confinement for criminal proceedings -- Bail laws inapplicable, exception.(1) (a) A minor may not be placed or kept in a secure detention facility pending court proceedings unless it is unsafe for the public to leave the minor with the minor's parents, guardian, or custodian and the minor is detainable based on guidelines promulgated by the Division of Juvenile Justice Services.
(b) A child who must be taken from the child's home but who does not require physical restriction shall be given temporary care in a shelter facility and may not be placed in a detention facility.
(c) A child may not be placed or kept in a shelter facility pending court proceedings unless it is unsafe to leave the child with the child's parents, guardian, or custodian.
(2) After admission of a child to a detention facility pursuant to the guidelines established by the Division of Juvenile Justice Services and immediate investigation by an authorized officer of the court, the judge or the officer shall order the release of the child to the child's parents, guardian, or custodian if it is found the child can be safely returned to their care, either upon written promise to bring the child to the court at a time set or without restriction.
(a) If a child's parent, guardian, or custodian fails to retrieve the child from a facility within 24 hours after notification of release, the parent, guardian, or custodian is responsible for the cost of care for the time the child remains in the facility.
(b) The facility shall determine the cost of care.
(c) Any money collected under this Subsection (2) shall be retained by the Division of Juvenile Justice Services to recover the cost of care for the time the child remains in the facility.
(3) (a) When a child is detained in a detention or shelter facility, the parents or guardian shall be informed by the person in charge of the facility that they have the right to a prompt hearing in court to determine whether the child is to be further detained or released.
(b) When a minor is detained in a detention facility, the minor shall be informed by the person in charge of the facility that the minor has the right to a prompt hearing in court to determine whether the minor is to be further detained or released.
(c) Detention hearings shall be held by the judge or by a commissioner.
(d) The court may, at any time, order the release of the minor, whether a detention hearing is held or not.
(e) If a child is released, and the child remains in the facility, because the parents, guardian, or custodian fails to retrieve the child, the parents, guardian, or custodian shall be responsible for the cost of care as provided in Subsections (2)(a), (b), and (c).
(4) (a) A minor may not be held in a detention facility longer than 48 hours prior to a detention hearing, excluding weekends and holidays, unless the court has entered an order for continued detention.
(b) A child may not be held in a shelter facility longer than 48 hours prior to a shelter hearing, excluding weekends and holidays, unless a court order for extended shelter has been entered by the court after notice to all parties described in Section 78-3a-306.
(c) A hearing for detention or shelter may not be waived. Detention staff shall provide the court with all information received from the person who brought the minor to the detention facility.
(d) If the court finds at a detention hearing that it is not safe to release the minor, the judge or commissioner may order the minor to be held in the facility or be placed in another appropriate facility, subject to further order of the court.
(e) (i) After a detention hearing has been held, only the court may release a minor from detention. If a minor remains in a detention facility, periodic reviews shall be held pursuant to the Utah State Juvenile Court Rules of Practice and Procedure to ensure that continued detention is necessary.
(ii) After a detention hearing for a violent felony, as defined in Section 76-3-203.5, or an offense in violation of Title 76, Chapter 10, Part 5, Weapons, the court shall direct that notice of its decision, including any disposition, order, or no contact orders, be provided to designated persons in the appropriate local law enforcement agency and district superintendent or the school or transferee school, if applicable, that the minor attends. The designated persons may receive the information for purposes of the minor's supervision and student safety.
(iii) Any employee of the local law enforcement agency, school district, and the school that the minor attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or willful misconduct as provided in Section [63-30d-202] 63G-7-202; and
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of Section [63-2-801] 63G-2-801.
(5) A minor may not be held in a detention facility, following a dispositional order of the court for nonsecure substitute care as defined in Section 62A-4a-101, or for community-based placement under Section 62A-7-101 for longer than 72 hours, excluding weekends and holidays. The period of detention may be extended by the court for one period of seven calendar days if:
(a) the Division of Juvenile Justice Services or another agency responsible for placement files a written petition with the court requesting the extension and setting forth good cause; and
(b) the court enters a written finding that it is in the best interests of both the minor and the community to extend the period of detention.
(6) The agency requesting an extension shall promptly notify the detention facility that a written petition has been filed.
(7) The court shall promptly notify the detention facility regarding its initial disposition and any ruling on a petition for an extension, whether granted or denied.
(8) (a) A child under 16 years of age may not be held in a jail, lockup, or other place for adult detention except as provided by Section 62A-7-201 or unless certified as an adult pursuant to Section 78-3a-603. The provisions of Section 62A-7-201 regarding confinement facilities apply to this Subsection (8).
(b) A child 16 years of age or older whose conduct or condition endangers the safety or welfare of others in the detention facility for children may, by court order that specifies the reasons, be detained in another place of confinement considered appropriate by the court, including a jail or other place of confinement for adults. However, a secure youth corrections facility is not an appropriate place of confinement for detention purposes under this section.
(9) A sheriff, warden, or other official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall immediately notify the juvenile court when a person who is or appears to be under 18 years of age is received at the facility and shall make arrangements for the transfer of the person to a detention facility, unless otherwise ordered by the juvenile court.
(10) This section does not apply to a minor who is brought to the adult facility under charges pursuant to Section 78-3a-602 or by order of the juvenile court to be held for criminal proceedings in the district court under Section 78-3a-603.
(11) A minor held for criminal proceedings under Section 78-3a-602 or 78-3a-603 may be detained in a jail or other place of detention used for adults charged with crime.
(12) Provisions of law regarding bail are not applicable to minors detained or taken into custody under this chapter, except that bail may be allowed:
(a) if a minor who need not be detained lives outside this state; or
(b) when a minor who need not be detained comes within one of the classes in Subsection 78-3a-503(11).
(13) Section 76-8-418 is applicable to a child who willfully and intentionally commits an act against a jail or other place of confinement, including a Division of Juvenile Justice Services detention, shelter, or secure confinement facility which would be a third degree felony if committed by an adult.
Section 2233. Section 78-3a-116 is amended to read:
78-3a-116
. Hearings -- Record -- County attorney or district attorney responsibilities -- Attorney general responsibilities -- Disclosure -- Admissibility of evidence.(1) (a) A verbatim record of the proceedings shall be taken by an official court reporter or by means of a mechanical recording device in all cases that might result in deprivation of custody as defined in this chapter. In all other cases a verbatim record shall also be made unless dispensed with by the court.
(b) (i) Notwithstanding any other provision, including [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, a record of a proceeding made under Subsection (1)(a) shall be released by the court to any person upon a finding on the record for good cause.
(ii) Following a petition for a record of a proceeding made under Subsection (1)(a), the court shall:
(A) provide notice to all subjects of the record that a request for release of the record has been made; and
(B) allow sufficient time for the subjects of the record to respond before making a finding on the petition.
(iii) A record of a proceeding may not be released under this Subsection (1)(b) if the court's jurisdiction over the subjects of the proceeding ended more than 12 months prior to the request.
(iv) For purposes of this Subsection (1)(b):
(A) "record of a proceeding" does not include documentary materials of any type submitted to the court as part of the proceeding, including items submitted under Subsection (4)(a); and
(B) "subjects of the record" includes the child's guardian ad litem, the child's legal guardian, the Division of Child and Family Services, and any other party to the proceeding.
(v) This Subsection (1)(b) applies:
(A) to records of proceedings made on or after November 1, 2003 in districts selected by the Judicial Council as pilot districts under Subsection 78-3-21(15)(a); and
(B) to records of proceedings made on or after July 1, 2004 in all other districts.
(2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a prosecution district, the district attorney shall represent the state in any proceeding in a minor's case.
(b) The attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child and Family Services, and Title 78, Chapter 3a, Juvenile Court Act of 1996, relating to:
(i) protection or custody of an abused, neglected, or dependent child; and
(ii) petitions for termination of parental rights.
(c) The attorney general shall represent the Division of Child and Family Services in actions involving a minor who is not adjudicated as abused or neglected, but who is otherwise committed to the custody of that division by the juvenile court, and who is classified in the division's management information system as having been placed in custody primarily on the basis of delinquent behavior or a status offense. Nothing in this Subsection (2)(c) may be construed to affect the responsibility of the county attorney or district attorney to represent the state in those matters, in accordance with the provisions of Subsection (2)(a).
(3) The board may adopt special rules of procedure to govern proceedings involving violations of traffic laws or ordinances, fish and game laws, and boating laws. However, proceedings involving offenses under Section 78-3a-506 are governed by that section regarding suspension of driving privileges.
(4) (a) For the purposes of determining proper disposition of the minor in dispositional hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and in hearings upon petitions for termination of parental rights, written reports and other material relating to the minor's mental, physical, and social history and condition may be received in evidence and may be considered by the court along with other evidence. The court may require that the person who wrote the report or prepared the material appear as a witness if the person is reasonably available.
(b) For the purpose of determining proper disposition of a minor alleged to be or adjudicated as abused, neglected, or dependent, dispositional reports prepared by Foster Care Citizen Review Boards pursuant to Section 78-3g-103 may be received in evidence and may be considered by the court along with other evidence. The court may require any person who participated in preparing the dispositional report to appear as a witness, if the person is reasonably available.
(5) (a) In an abuse, neglect, or dependency proceeding occurring after the commencement of a shelter hearing under Section 78-3a-306 or the filing of a petition under Section 78-3a-305, each party to the proceeding shall provide in writing to the other parties or their counsel any information which the party:
(i) plans to report to the court at the proceeding; or
(ii) could reasonably expect would be requested of the party by the court at the proceeding.
(b) The disclosure required under Subsection (5)(a) shall be made:
(i) for dispositional hearings under Sections 78-3a-310 and 78-3a-311, no less than five days before the proceeding;
(ii) for proceedings under Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act, in accordance with Utah Rules of Civil Procedure; and
(iii) for all other proceedings, no less than five days before the proceeding.
(c) If a party to a proceeding obtains information after the deadline in Subsection (5)(b), the information is exempt from the disclosure required under Subsection (5)(a) if the party certifies to the court that the information was obtained after the deadline.
(d) Subsection (5)(a) does not apply to:
(i) pretrial hearings; and
(ii) the frequent, periodic review hearings held in a dependency drug court case to assess and promote the parent's progress in substance abuse treatment.
(6) For the purpose of establishing the fact of abuse, neglect, or dependency, the court may, in its discretion, consider evidence of statements made by a child under eight years of age to a person in a trust relationship.
Section 2234. Section 78-3a-118 is amended to read:
78-3a-118
. Adjudication of jurisdiction of juvenile court -- Disposition of cases -- Enumeration of possible court orders -- Considerations of court -- Obtaining DNA sample.(1) (a) When a minor is found to come within the provisions of Section 78-3a-104, the court shall so adjudicate. The court shall make a finding of the facts upon which it bases its jurisdiction over the minor. However, in cases within the provisions of Subsection 78-3a-104(1), findings of fact are not necessary.
(b) If the court adjudicates a minor for a crime of violence or an offense in violation of Title 76, Chapter 10, Part 5, Weapons, it shall order that notice of the adjudication be provided to the school superintendent of the district in which the minor resides or attends school. Notice shall be made to the district superintendent within three days of the adjudication and shall include:
(i) the specific offenses for which the minor was adjudicated; and
(ii) if available, if the victim:
(A) resides in the same school district as the minor; or
(B) attends the same school as the minor.
(2) Upon adjudication the court may make the following dispositions by court order:
(a) (i) The court may place the minor on probation or under protective supervision in the minor's own home and upon conditions determined by the court, including compensatory service as provided in Section 78-11-20.7.
(ii) The court may place the minor in state supervision with the probation department of the court, under the legal custody of:
(A) the minor's parent or guardian;
(B) the Division of Juvenile Justice Services; or
(C) the Division of Child and Family Services.
(iii) If the court orders probation or state supervision, the court shall direct that notice of its order be provided to designated persons in the local law enforcement agency and the school or transferee school, if applicable, that the minor attends. The designated persons may receive the information for purposes of the minor's supervision and student safety.
(iv) Any employee of the local law enforcement agency and the school that the minor attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or willful misconduct as provided in Section [63-30d-202] 63G-7-202; and
(B) civilly or criminally liable except when the disclosure constitutes a knowing violation of Section [63-2-801] 63G-2-801.
(b) The court may place the minor in the legal custody of a relative or other suitable person, with or without probation or protective supervision, but the juvenile court may not assume the function of developing foster home services.
(c) (i) The court may:
(A) vest legal custody of the minor in the Division of Child and Family Services, Division of Juvenile Justice Services, or the Division of Substance Abuse and Mental Health; and
(B) order the Department of Human Services to provide dispositional recommendations and services.
(ii) For minors who may qualify for services from two or more divisions within the Department of Human Services, the court may vest legal custody with the department.
(iii) (A) A minor who is committed to the custody of the Division of Child and Family Services on grounds other than abuse or neglect is subject to the provisions of Title 78, Chapter 3a, Part 3A, Minors in Custody on Grounds Other Than Abuse or Neglect, and Title 62A, Chapter 4a, Part 2A, Minors in Custody on Grounds Other Than Abuse or Neglect.
(B) Prior to the court entering an order to place a minor in the custody of the Division of Child and Family Services on grounds other than abuse or neglect, the court shall provide the division with notice of the hearing no later than five days before the time specified for the hearing so the division may attend the hearing.
(C) Prior to committing a child to the custody of the Division of Child and Family Services, the court shall make a finding as to what reasonable efforts have been attempted to prevent the child's removal from the child's home.
(d) (i) The court may commit a minor to the Division of Juvenile Justice Services for secure confinement.
(ii) A minor under the jurisdiction of the court solely on the ground of abuse, neglect, or dependency under Subsection 78-3a-104(1)(c) may not be committed to the Division of Juvenile Justice Services.
(e) The court may commit a minor, subject to the court retaining continuing jurisdiction over the minor, to the temporary custody of the Division of Juvenile Justice Services for observation and evaluation for a period not to exceed 45 days, which period may be extended up to 15 days at the request of the director of the Division of Juvenile Justice Services.
(f) (i) The court may commit a minor to a place of detention or an alternative to detention for a period not to exceed 30 days subject to the court retaining continuing jurisdiction over the minor. This commitment may be stayed or suspended upon conditions ordered by the court.
(ii) This Subsection (2)(f) applies only to a minor adjudicated for:
(A) an act which if committed by an adult would be a criminal offense; or
(B) contempt of court under Section 78-3a-901.
(g) The court may vest legal custody of an abused, neglected, or dependent minor in the Division of Child and Family Services or any other appropriate person in accordance with the requirements and procedures of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
(h) The court may place a minor on a ranch or forestry camp, or similar facility for care and also for work, if possible, if the person, agency, or association operating the facility has been approved or has otherwise complied with all applicable state and local laws. A minor placed in a forestry camp or similar facility may be required to work on fire prevention, forestation and reforestation, recreational works, forest roads, and on other works on or off the grounds of the facility and may be paid wages, subject to the approval of and under conditions set by the court.
(i) (i) The court may order a minor to repair, replace, or otherwise make restitution for damage or loss caused by the minor's wrongful act, including costs of treatment as stated in Section 78-3a-318 and impose fines in limited amounts.
(ii) The court may also require a minor to reimburse an individual, entity, or governmental agency who offered and paid a reward to a person or persons for providing information resulting in a court adjudication that the minor is within the jurisdiction of the juvenile court due to the commission of a criminal offense.
(iii) If a minor is returned to this state under the Interstate Compact on Juveniles, the court may order the minor to make restitution for costs expended by any governmental entity for the return.
(j) The court may issue orders necessary for the collection of restitution and fines ordered by the court, including garnishments, wage withholdings, and executions.
(k) (i) The court may through its probation department encourage the development of employment or work programs to enable minors to fulfill their obligations under Subsection (2)(i) and for other purposes considered desirable by the court.
(ii) Consistent with the order of the court, the probation officer may permit a minor found to be within the jurisdiction of the court to participate in a program of work restitution or compensatory service in lieu of paying part or all of the fine imposed by the court.
(l) (i) In violations of traffic laws within the court's jurisdiction, the court may, in addition to any other disposition authorized by this section:
(A) restrain the minor from driving for periods of time the court considers necessary; and
(B) take possession of the minor's driver license.
(ii) The court may enter any other disposition under Subsection (2)(l)(i); however, the suspension of driving privileges for an offense under Section 78-3a-506 are governed only by Section 78-3a-506.
(m) (i) When a minor is found within the jurisdiction of the juvenile court under Section 78-3a-104 because of violating Section 58-37-8, Title 58, Chapter 37a, Utah Drug Paraphernalia Act, or Title 58, Chapter 37b, Imitation Controlled Substances Act, the court shall, in addition to any fines or fees otherwise imposed, order that the minor perform a minimum of 20 hours, but no more than 100 hours, of compensatory service. Satisfactory completion of an approved substance abuse prevention or treatment program may be credited by the court as compensatory service hours.
(ii) When a minor is found within the jurisdiction of the juvenile court under Section 78-3a-104 because of a violation of Section 32A-12-209 or Subsection 76-9-701(1), the court may, upon the first adjudication, and shall, upon a second or subsequent adjudication, order that the minor perform a minimum of 20 hours, but no more than 100 hours of compensatory service, in addition to any fines or fees otherwise imposed. Satisfactory completion of an approved substance abuse prevention or treatment program may be credited by the court as compensatory service hours.
(n) (i) Subject to Subsection (2)(n)(iii), the court may order that a minor:
(A) be examined or treated by a physician, surgeon, psychiatrist, or psychologist; or
(B) receive other special care.
(ii) For purposes of receiving the examination, treatment, or care described in Subsection (2)(n)(i), the court may place the minor in a hospital or other suitable facility.
(iii) In determining whether to order the examination, treatment, or care described in Subsection (2)(n)(i), the court shall consider:
(A) the desires of the minor;
(B) if the minor is under the age of 18, the desires of the parents or guardian of the minor; and
(C) whether the potential benefits of the examination, treatment, or care outweigh the potential risks and side-effects, including behavioral disturbances, suicidal ideation, brain function impairment, or emotional or physical harm resulting from the compulsory nature of the examination, treatment, or care.
(o) (i) The court may appoint a guardian for the minor if it appears necessary in the interest of the minor, and may appoint as guardian a public or private institution or agency in which legal custody of the minor is vested.
(ii) In placing a minor under the guardianship or legal custody of an individual or of a private agency or institution, the court shall give primary consideration to the welfare of the minor. When practicable, the court may take into consideration the religious preferences of the minor and of a child's parents.
(p) (i) In support of a decree under Section 78-3a-104, the court may order reasonable conditions to be complied with by a minor's parents or guardian, a minor, a minor's custodian, or any other person who has been made a party to the proceedings. Conditions may include:
(A) parent-time by the parents or one parent;
(B) restrictions on the minor's associates;
(C) restrictions on the minor's occupation and other activities; and
(D) requirements to be observed by the parents or custodian.
(ii) A minor whose parents or guardians successfully complete a family or other counseling program may be credited by the court for detention, confinement, or probation time.
(q) The court may order the child to be committed to the physical custody of a local mental health authority, in accordance with the procedures and requirements of Title 62A, Chapter 15, Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and Mental Health.
(r) (i) The court may make an order committing a minor within the court's jurisdiction to the Utah State Developmental Center if the minor has mental retardation in accordance with the provisions of Title 62A, Chapter 5, Part 3, Admission to Mental Retardation Facility.
(ii) The court shall follow the procedure applicable in the district courts with respect to judicial commitments to the Utah State Developmental Center when ordering a commitment under Subsection (2)(r)(i).
(s) The court may terminate all parental rights upon a finding of compliance with the provisions of Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
(t) The court may make any other reasonable orders for the best interest of the minor or as required for the protection of the public, except that a child may not be committed to jail or prison.
(u) The court may combine the dispositions listed in this section if they are compatible.
(v) Before depriving any parent of custody, the court shall give due consideration to the rights of parents concerning their child. The court may transfer custody of a minor to another person, agency, or institution in accordance with the requirements and procedures of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
(w) Except as provided in Subsection (2)(y)(i), an order under this section for probation or placement of a minor with an individual or an agency shall include a date certain for a review of the case by the court. A new date shall be set upon each review.
(x) In reviewing foster home placements, special attention shall be given to making adoptable children available for adoption without delay.
(y) (i) The juvenile court may enter an order of permanent custody and guardianship with an individual or relative of a child where the court has previously acquired jurisdiction as a result of an adjudication of abuse, neglect, or dependency. The juvenile court may enter an order for child support on behalf of the child against the natural or adoptive parents of the child.
(ii) Orders under Subsection (2)(y)(i):
(A) shall remain in effect until the child reaches majority;
(B) are not subject to review under Section 78-3a-119; and
(C) may be modified by petition or motion as provided in Section 78-3a-903.
(iii) Orders permanently terminating the rights of a parent, guardian, or custodian and permanent orders of custody and guardianship do not expire with a termination of jurisdiction of the juvenile court.
(3) In addition to the dispositions described in Subsection (2), when a minor comes within the court's jurisdiction, the minor may be given a choice by the court to serve in the National Guard in lieu of other sanctions, provided:
(a) the minor meets the current entrance qualifications for service in the National Guard as determined by a recruiter, whose determination is final;
(b) the minor is not under the jurisdiction of the court for any act that:
(i) would be a felony if committed by an adult;
(ii) is a violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
(iii) was committed with a weapon; and
(c) the court retains jurisdiction over the minor under conditions set by the court and agreed upon by the recruiter or the unit commander to which the minor is eventually assigned.
(4) (a) A DNA specimen shall be obtained from a minor who is under the jurisdiction of the court as described in Subsection 53-10-403(3). The specimen shall be obtained by designated employees of the court or, if the minor is in the legal custody of the Division of Juvenile Justice Services, then by designated employees of the division under Subsection 53-10-404(5)(b).
(b) The responsible agency shall ensure that employees designated to collect the saliva DNA specimens receive appropriate training and that the specimens are obtained in accordance with accepted protocol.
(c) Reimbursements paid under Subsection 53-10-404(2)(a) shall be placed in the DNA Specimen Restricted Account created in Section 53-10-407.
(d) Payment of the reimbursement is second in priority to payments the minor is ordered to make for restitution under this section and treatment under Section 78-3a-318.
Section 2235. Section 78-3a-504 is amended to read:
78-3a-504
. Minor held in detention -- Credit for good behavior.(1) The judge may order whether a minor held in detention under Subsection 78-3a-118(2)(f) or 78-3a-901(3) is eligible to receive credit for good behavior against the period of detention. The rate of credit is one day for every three days served. The Division of Juvenile Justice Services shall, in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, establish rules describing good behavior for which credit may be earned.
(2) Any disposition including detention under Subsection 78-3a-118(2)(f) or 78-3a-901(3) shall be concurrent with any other order of detention.
Section 2236. Section 78-3a-505 is amended to read:
78-3a-505
. Dispositional report required in minor’s cases -- Exceptions.(1) The probation department or other agency designated by the court shall make a dispositional report in writing in all minor's cases in which a petition has been filed, except that the court may dispense with the study and report in cases involving violations of traffic laws or ordinances, violations of fish and game laws, boating laws, and other minor cases.
(2) When preparing a dispositional report and recommendation in a delinquency action, the probation department or other agency designated by the court shall consider the juvenile sentencing guidelines developed in accordance with Section [63-25a-304] 63M-7-404 and any aggravating or mitigating circumstances.
(3) Where the allegations of a petition filed under Subsection 78-3a-104(1) are denied, the investigation may not be made until the court has made an adjudication.
Section 2237. Section 78-3a-904 is amended to read:
78-3a-904
. When photographs, fingerprints, or HIV infection tests may be taken -- Distribution -- Expungement.(1) Photographs may be taken of a minor 14 years of age or older who:
(a) is taken into custody for the alleged commission of an offense under Sections 78-3a-104, 78-3a-601, and 78-3a-602 that would also be an offense if the minor were 18 years of age or older; or
(b) has been determined to be a serious habitual offender for tracking under Section [63-92-2] 63M-10-201 and is under the continuing jurisdiction of the Juvenile Court or the Division of Juvenile Justice Services.
(2) (a) Fingerprints may be taken of a minor 14 years of age or older who:
(i) is taken into custody for the alleged commission of an offense that would be a felony if the minor were 18 years of age or older;
(ii) has been determined to be a serious habitual offender for tracking under Section [63-92-2] 63M-10-201 and is under the continuing jurisdiction of the Juvenile Court or the Division of Juvenile Justice Services; or
(iii) is required to provide a DNA specimen under Section 53-10-403.
(b) Fingerprints shall be forwarded to the Bureau of Criminal Identification and may be stored by electronic medium.
(3) HIV testing may be conducted on a minor who is taken into custody after having been adjudicated to have violated state law prohibiting a sexual offense under Title 76, Chapter 5, Part 4, Sexual Offenses, upon the request of the victim or the parent or guardian of a child victim.
(4) HIV tests, photographs, and fingerprints may not be taken of a child younger than 14 years of age without the consent of the court.
(5) (a) Photographs may be distributed or disbursed to individuals or agencies other than state or local law enforcement agencies only when a minor 14 years of age or older is charged with an offense which would be a felony if committed by an adult.
(b) Fingerprints may be distributed or disbursed to individuals or agencies other than state or local law enforcement agencies.
(6) When a minor's juvenile record is expunged, all photographs and other records as ordered shall upon court order be destroyed by the law enforcement agency. Fingerprint records may not be destroyed.
Section 2238. Section 78-3a-912 is amended to read:
78-3a-912
. Appointment of attorney guardian ad litem -- Right of refusal -- Duties and responsibilities -- Training -- Trained staff and court-appointed special advocate volunteers -- Costs -- Immunity -- Annual report.(1) (a) The court:
(i) may appoint an attorney guardian ad litem to represent the best interest of a minor involved in any case before the court; and
(ii) shall consider the best interest of a minor, consistent with the provisions of Section 62A-4a-201, in determining whether to appoint a guardian ad litem.
(b) In all cases where an attorney guardian ad litem is appointed, the court shall make a finding that establishes the necessity of the appointment.
(2) An attorney guardian ad litem shall represent the best interest of each child who may become the subject of a petition alleging abuse, neglect, or dependency, from the earlier of the day that:
(a) the child is removed from the child's home by the division; or
(b) the petition is filed.
(3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad litem, shall:
(a) represent the best interest of the minor in all proceedings;
(b) prior to representing any minor before the court, be trained in:
(i) applicable statutory, regulatory, and case law; and
(ii) accordance with the United States Department of Justice National Court Appointed Special Advocate Association guidelines;
(c) conduct or supervise an independent investigation in order to obtain first-hand, a clear understanding of the situation and needs of the minor;
(d) (i) personally meet with the minor;
(ii) personally interview the minor if the minor is old enough to communicate;
(iii) determine the minor's goals and concerns regarding placement; and
(iv) personally assess or supervise an assessment of the appropriateness and safety of the minor's environment in each placement;
(e) file written motions, responses, or objections at all stages of a proceeding when necessary to protect the best interest of a minor;
(f) personally or through a trained volunteer, paralegal, or other trained staff, attend all administrative and foster care citizen review board hearings pertaining to the minor's case;
(g) participate in all appeals unless excused by order of the court;
(h) be familiar with local experts who can provide consultation and testimony regarding the reasonableness and appropriateness of efforts made by the Division of Child and Family Services to:
(i) maintain a minor in the minor's home; or
(ii) reunify a child with the child's parent;
(i) to the extent possible, and unless it would be detrimental to the minor, personally or through a trained volunteer, paralegal, or other trained staff, keep the minor advised of:
(i) the status of the minor's case;
(ii) all court and administrative proceedings;
(iii) discussions with, and proposals made by, other parties;
(iv) court action; and
(v) the psychiatric, medical, or other treatment or diagnostic services that are to be provided to the minor;
(j) review proposed orders for, and as requested by the court;
(k) prepare proposed orders with clear and specific directions regarding services, treatment, evaluation, assessment, and protection of the minor and the minor's family; and
(l) personally or through a trained volunteer, paralegal, or other trained staff, monitor implementation of a minor's child and family plan and any dispositional orders to:
(i) determine whether services ordered by the court:
(A) are actually provided; and
(B) are provided in a timely manner; and
(ii) attempt to assess whether services ordered by the court are accomplishing the intended goal of the services.
(4) (a) Consistent with this Subsection (4), an attorney guardian ad litem may use trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained staff to assist in investigation and preparation of information regarding the cases of individual minors before the court.
(b) The attorney guardian ad litem described in Subsection (4)(a) may not delegate the attorney's responsibilities described in Subsection (3).
(c) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in and follow, at a minimum, the guidelines established by the United States Department of Justice Court Appointed Special Advocate Association.
(d) The court may use volunteers trained in accordance with the requirements of Subsection (4)(c) to assist in investigation and preparation of information regarding the cases of individual minors within the jurisdiction.
(e) When possible and appropriate, the court may use a volunteer who is a peer of the minor appearing before the court, in order to provide assistance to that minor, under the supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or other trained staff.
(5) The attorney guardian ad litem shall continue to represent the best interest of the minor until released from that duty by the court.
(6) (a) Consistent with Subsection (6)(b), the juvenile court is responsible for:
(i) all costs resulting from the appointment of an attorney guardian ad litem; and
(ii) the costs of volunteer, paralegal, and other staff appointment and training.
(b) The court shall use funds appropriated by the Legislature for the guardian ad litem program to cover the costs described in Subsection (6)(a).
(c) (i) When the court appoints an attorney guardian ad litem under this section, the court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer expenses against the child's parents, parent, or legal guardian in a proportion that the court determines to be just and appropriate.
(ii) The court may not assess those fees or costs against:
(A) a legal guardian, when that guardian is the state; or
(B) consistent with Subsection (6)(d), a parent who is found to be impecunious.
(d) For purposes of Subsection (6)(c)(ii)(B), if a person claims to be impecunious, the court shall:
(i) require that person to submit an affidavit of impecuniosity as provided in Section 78-7-36; and
(ii) follow the procedures and make the determinations as provided in Section 78-7-37.
(7) An attorney guardian ad litem appointed under this section, when serving in the scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee of the state for purposes of indemnification under [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
(b) If the minor's wishes differ from the attorney's determination of the minor's best interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in addition to presenting the attorney's determination of the minor's best interest.
(c) A difference between the minor's wishes and the attorney's determination of best interest may not be considered a conflict of interest for the attorney.
(d) The court may appoint one attorney guardian ad litem to represent the best interests of more than one child of a marriage.
(9) An attorney guardian ad litem shall be provided access to all Division of Child and Family Services records regarding the minor at issue and the minor's family.
(10) An attorney guardian ad litem shall maintain current and accurate records regarding:
(a) the number of times the attorney has had contact with each minor; and
(b) the actions the attorney has taken in representation of the minor's best interest.
(11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian ad litem are confidential and may not be released or made public upon subpoena, search warrant, discovery proceedings, or otherwise. This subsection supersedes [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
(b) Consistent with Subsection (11)(d), all records of an attorney guardian ad litem:
(i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative Subpoena Powers; and
(ii) shall be released to the Legislature.
(c) (i) Except as provided in Subsection (11)(c)(ii), records released in accordance with Subsection (11)(b) shall be maintained as confidential by the Legislature.
(ii) Notwithstanding Subsection (11)(c)(i), the Office of the Legislative Auditor General may include summary data and nonidentifying information in its audits and reports to the Legislature.
(d) (i) Subsection (11)(b) constitutes an exception to Rules of Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4), because of:
(A) the unique role of an attorney guardian ad litem described in Subsection (8); and
(B) the state's role and responsibility:
(I) to provide a guardian ad litem program; and
(II) as parens patriae, to protect minors.
(ii) A claim of attorney-client privilege does not bar access to the records of an attorney guardian ad litem by the Legislature, through legislative subpoena.
(e) The Office of the Guardian Ad Litem shall present an annual report to the Child Welfare Legislative Oversight Panel detailing:
(i) the development, policy, and management of the statewide guardian ad litem program;
(ii) the training and evaluation of attorney guardians ad litem and volunteers; and
(iii) the number of minors served by the Office of the Guardian Ad Litem.
Section 2239. Section 78-3g-102 is amended to read:
78-3g-102
. Foster Care Citizen Review Board Steering Committee -- Membership -- Chair -- Compensation -- Duties.(1) There is created within state government the Foster Care Citizen Review Board Steering Committee composed of the following members:
(a) a member of the Board of Child and Family Services, within the Department of Human Services, appointed by the chair of that board;
(b) the director of the division, or his designee;
(c) a juvenile court judge, appointed by the presiding officer of the Judicial Council;
(d) a juvenile court administrator, appointed by the administrator of the courts;
(e) a representative of the Utah Foster Parents Association, appointed by the president of that organization;
(f) a representative of a statewide advocacy organization for children, appointed by the chair of the committee;
(g) a representative of an agency or organization that provides services to children who have been adjudicated to be under the jurisdiction of the juvenile court, appointed by the chair of the committee;
(h) the guardian ad litem director, appointed pursuant to Section 78-3a-911, or the director's designee;
(i) the director or chief of the child protection unit within the Office of the Attorney General, or his designee;
(j) one person from each region who is a member of a board, appointed by the chair of the committee; and
(k) a private citizen, appointed by the chair of the committee.
(2) The persons described in Subsection (1) shall annually elect a chair of the committee from among themselves.
(3) A majority of the members of the committee constitutes a quorum. The action of the majority of a quorum represents the action of the committee.
(4) (a) Members of the committee who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(c) Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(d) Members of the committee may decline to receive per diem and expenses for their services.
(5) The committee shall:
(a) within appropriations from the Legislature, appoint members of boards in each juvenile court district;
(b) supervise the recruitment, training, and retention of board members;
(c) supervise and evaluate the boards;
(d) establish and approve policies for the boards; and
(e) submit a report detailing the results of the boards to the Child Welfare Legislative Oversight Panel, the Judiciary Interim Committee, and the Board of Juvenile Court Judges on or before December 31 of each year.
(6) (a) The Department of Human Services shall provide fiscal management services, including payroll and accounting services, to the committee.
(b) Within appropriations from the Legislature, the committee may hire professional and clerical staff as it considers necessary and appropriate.
(7) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the committee may make rules necessary for:
(a) recruitment, appointment, and training of board members;
(b) supervision and evaluation of boards; and
(c) establishment of policy for boards.
(8) The committee may receive gifts, grants, devises, and donations. If the donor designates a specific purpose or use for the gift, grant, devise, or donation, it shall be used solely for that purpose. Undesignated gifts, grants, devises, and donations shall be used for foster care citizen review boards in accordance with the requirements and provisions of this chapter.
Section 2240. Section 78-5-116 is amended to read:
78-5-116
. Disposition of fines.(1) Except as otherwise specified by this section, fines and forfeitures collected by a justice court shall be remitted, 1/2 to the treasurer of the local government responsible for the court and 1/2 to the treasurer of the local government which prosecutes or which would prosecute the violation.
(2) (a) For violation of Title 23, the court shall allocate 85% to the Division of Wildlife Resources and 15% to the general fund of the city or county government responsible for the justice court.
(b) For violation of Title 41, Chapter 22, Off-highway Vehicles, or Title 73, Chapter 18, State Boating Act, the court shall allocate 85% to the Division of Parks and Recreation and 15% to the general fund of the city or county government responsible for the justice court.
(3) The surcharge established by Section [63-63a-1] 51-9-401 shall be paid to the state treasurer.
(4) Fines, fees, court costs, and forfeitures collected by a municipal or county justice court for a violation of Section 72-7-404 or 72-7-406 regarding maximum weight limitations and overweight permits, minus court costs not to exceed the schedule adopted by the Judicial Council, shall be paid to the state treasurer and distributed to the class B and C road account.
(5) Revenue deposited in the class B and C road account pursuant to Subsection (4) is supplemental to the money appropriated under Section 72-2-107 but shall be expended in the same manner as other class B and C road funds.
(6) Until July 1, 2007, fines and forfeitures collected by the court for a violation of Subsection 41-1a-1303(2) related to registration of vehicles after establishing residency shall be remitted:
(a) 50% to the state or local governmental entity which issued the citation for a violation to be used for law enforcement purposes; and
(b) 50% in accordance with Subsection (1).
Section 2241. Section 78-5-116.5 is amended to read:
78-5-116.5
. Security surcharge -- Application -- Deposit in restricted accounts.(1) In addition to any fine, penalty, forfeiture, or other surcharge, a security surcharge of $32 shall be assessed on all convictions for offenses listed in the uniform bail schedule adopted by the Judicial Council and moving traffic violations.
(2) The security surcharge shall be collected and distributed pro rata with any fine collected. A fine that would otherwise have been charged may not be reduced due to the imposition of the security surcharge.
(3) The security surcharge shall be allocated as follows:
(a) the assessing court shall retain 20% of the amount collected for deposit into the general fund of the governmental entity; and
(b) 80% shall be remitted to the state treasurer to be distributed as follows:
(i) 62.5% to the treasurer of the county in which the justice court which remitted the amount is located;
(ii) 25% to the Court Security Account created in Section 63-63c-102; and
(iii) 12.5% to the Justice Court Technology, Security, and Training Account created in Section 78-5-116.7.
(4) The court shall remit money collected in accordance with Title 51, Chapter 7, State Money Management Act.
Section 2242. Section 78-6-14 is amended to read:
78-6-14
. Civil filing fees.(1) Except as provided in this section, the fees for a small claims action in justice court shall be the same as provided in Section 78-7-35.
(2) Fees collected in small claims actions filed in municipal justice court are remitted to the municipal treasurer. Fees collected in small claims actions filed in a county justice court are remitted to the county treasurer.
(3) (a) Seven dollars and 50 cents shall be withheld from the fee for the small claims affidavit and allocated to the Judges' Retirement Trust Fund. Five dollars shall be withheld from the fee for a small claims counter affidavit and allocated to the Judges' Retirement Trust Fund.
(b) Two dollars withheld from the civil filing fee in a court of record as provided in Subsection [63-63a-8] 51-9-408(4)(b) shall not apply to the fees collected for small claims actions in justice court.
(4) The fee in the justice court for filing a notice of appeal for trial de novo in a court of record is $10. The fee covers all services of the justice court on appeal but does not satisfy the trial de novo filing fee in the court of record.
Section 2243. Section 78-7-35 is amended to read:
78-7-35
. Civil fees of the courts of record -- Courts complex design.(1) (a) The fee for filing any civil complaint or petition invoking the jurisdiction of a court of record not governed by another subsection is $155.
(b) The fee for filing a complaint or petition is:
(i) $50 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is $2,000 or less;
(ii) $95 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is greater than $2,000 and less than $10,000;
(iii) $155 if the claim for damages or amount in interpleader is $10,000 or more;
(iv) $155 if the petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance; and
(v) $25 for a motion for temporary separation order filed under Section 30-3-4.5.
(c) The fee for filing a small claims affidavit is:
(i) $45 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is $2,000 or less; and
(ii) $70 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is greater than $2,000.
(d) The fee for filing a counter claim, cross claim, complaint in intervention, third party complaint, or other claim for relief against an existing or joined party other than the original complaint or petition is:
(i) $45 if the claim for relief exclusive of court costs, interest, and attorney fees is $2,000 or less;
(ii) $75 if the claim for relief exclusive of court costs, interest, and attorney fees is greater than $2,000 and less than $10,000;
(iii) $105 if the original petition is filed under Subsection (1)(a), the claim for relief is $10,000 or more, or the party seeks relief other than monetary damages; and
(iv) $85 if the original petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance.
(e) The fee for filing a small claims counter affidavit is:
(i) $35 if the claim for relief exclusive of court costs, interest, and attorney fees is $2,000 or less; and
(ii) $50 if the claim for relief exclusive of court costs, interest, and attorney fees is greater than $2,000.
(f) The fee for depositing funds under Section 57-1-29 when not associated with an action already before the court is determined under Subsection (1)(b) based on the amount deposited.
(g) The fee for filing a petition is:
(i) $75 for trial de novo of an adjudication of the justice court or of the small claims department; and
(ii) $55 for an appeal of a municipal administrative determination in accordance with Section 10-3-703.7.
(h) The fee for filing a notice of appeal, petition for appeal of an interlocutory order, or petition for writ of certiorari is $205.
(i) (i) Except for a petition filed under Subsection 77-18-10(2), the fee for filing a petition for expungement is $65.
(ii) There is no fee for a petition filed under Subsection 77-18-10(2).
(j) (i) Fifteen dollars of the fees established by Subsections (1)(a) through (i) shall be allocated to and between the Judges' Contributory Retirement Trust Fund and the Judges' Noncontributory Retirement Trust Fund, as provided in Title 49, Chapter 17, Judges' Contributory Retirement Act, and Title 49, Chapter 18, Judges' Noncontributory Retirement Act.
(ii) Four dollars of the fees established by Subsections (1)(a) through (i) shall be allocated by the state treasurer to be deposited in the restricted account, Children's Legal Defense Account, as provided in Section [63-63a-8] 51-9-408.
(iii) Three dollars of the fees established under Subsections (1)(a) through (e), (1)(g), and (1)(r) shall be allocated to and deposited with the Dispute Resolution Fund as provided in Section 78-31b-9.
(iv) Fifteen dollars of the fees established by Subsections (1)(a), (1)(b)(iii) and (iv), (1)(d)(iii) and (iv), (1)(g)(ii), (1)(h), and (1)(i) shall be allocated by the state treasurer to be deposited in the restricted account, Court Security Account, as provided in Section 63-63c-102.
(v) Five dollars of the fees established by Subsections (1)(b)(i) and (ii), (1)(d)(ii) and (1)(g)(i) shall be allocated by the state treasurer to be deposited in the restricted account, Court Security Account, as provided in Section 63-63c-102.
(k) The fee for filing a judgment, order, or decree of a court of another state or of the United States is $25.
(l) The fee for filing probate or child custody documents from another state is $25.
(m) (i) The fee for filing an abstract or transcript of judgment, order, or decree of the Utah State Tax Commission is $30.
(ii) The fee for filing an abstract or transcript of judgment of a court of law of this state or a judgment, order, or decree of an administrative agency, commission, board, council, or hearing officer of this state or of its political subdivisions other than the Utah State Tax Commission, is $40.
(n) The fee for filing a judgment by confession without action under Section 78-22-3 is $25.
(o) The fee for filing an award of arbitration for confirmation, modification, or vacation under Title 78, Chapter 31a, Utah Uniform Arbitration Act, that is not part of an action before the court is $25.
(p) The fee for filing a petition or counter-petition to modify a decree of divorce is $40.
(q) The fee for filing any accounting required by law is:
(i) $10 for an estate valued at $50,000 or less;
(ii) $20 for an estate valued at $75,000 or less but more than $50,000;
(iii) $40 for an estate valued at $112,000 or less but more than $75,000;
(iv) $80 for an estate valued at $168,000 or less but more than $112,000; and
(v) $150 for an estate valued at more than $168,000.
(r) The fee for filing a demand for a civil jury is $75.
(s) The fee for filing a notice of deposition in this state concerning an action pending in another state under Utah Rule of Civil Procedure 26 is $25.
(t) The fee for filing documents that require judicial approval but are not part of an action before the court is $25.
(u) The fee for a petition to open a sealed record is $25.
(v) The fee for a writ of replevin, attachment, execution, or garnishment is $35 in addition to any fee for a complaint or petition.
(w) (i) The fee for a petition for authorization for a minor to marry required by Section 30-1-9 is $5.
(ii) The fee for a petition for emancipation of a minor provided in Title 78, Chapter 3a, Part 10, Emancipation, is $50.
(x) The fee for a certificate issued under Section 26-2-25 is $2.
(y) The fee for a certified copy of a document is $4 per document plus 50 cents per page.
(z) The fee for an exemplified copy of a document is $6 per document plus 50 cents per page.
(aa) The Judicial Council shall by rule establish a schedule of fees for copies of documents and forms and for the search and retrieval of records under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act. Fees under this Subsection (1)(aa) shall be credited to the court as a reimbursement of expenditures.
(bb) There is no fee for services or the filing of documents not listed in this section or otherwise provided by law.
(cc) Except as provided in this section, all fees collected under this section are paid to the General Fund. Except as provided in this section, all fees shall be paid at the time the clerk accepts the pleading for filing or performs the requested service.
(dd) The filing fees under this section may not be charged to the state, its agencies, or political subdivisions filing or defending any action. In judgments awarded in favor of the state, its agencies, or political subdivisions, except the Office of Recovery Services, the court shall order the filing fees and collection costs to be paid by the judgment debtor. The sums collected under this Subsection (1)(dd) shall be applied to the fees after credit to the judgment, order, fine, tax, lien, or other penalty and costs permitted by law.
(2) (a) (i) From March 17, 1994 until June 30, 1998, the administrator of the courts shall transfer all revenues representing the difference between the fees in effect after May 2, 1994, and the fees in effect before February 1, 1994, as dedicated credits to the Division of Facilities Construction and Management Capital Projects Fund.
(ii) (A) Except as provided in Subsection (2)(a)(ii)(B), the Division of Facilities Construction and Management shall use up to $3,750,000 of the revenue deposited in the Capital Projects Fund under this Subsection (2)(a) to design and take other actions necessary to initiate the development of a courts complex in Salt Lake City.
(B) If the Legislature approves funding for construction of a courts complex in Salt Lake City in the 1995 Annual General Session, the Division of Facilities Construction and Management shall use the revenue deposited in the Capital Projects Fund under this Subsection (2)(a)(ii) to construct a courts complex in Salt Lake City.
(C) After the courts complex is completed and all bills connected with its construction have been paid, the Division of Facilities Construction and Management shall use any monies remaining in the Capital Projects Fund under this Subsection (2)(a)(ii) to fund the Vernal District Court building.
(iii) The Division of Facilities Construction and Management may enter into agreements and make expenditures related to this project before the receipt of revenues provided for under this Subsection (2)(a)(iii).
(iv) The Division of Facilities Construction and Management shall:
(A) make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund; and
(B) reimburse the Capital Projects Fund upon receipt of the revenues provided for under this Subsection (2).
(b) After June 30, 1998, the administrator of the courts shall ensure that all revenues representing the difference between the fees in effect after May 2, 1994, and the fees in effect before February 1, 1994, are transferred to the Division of Finance for deposit in the restricted account.
(c) The Division of Finance shall deposit all revenues received from the court administrator into the restricted account created by this section.
(d) (i) From May 1, 1995 until June 30, 1998, the administrator of the courts shall transfer $7 of the amount of a fine or bail forfeiture paid for a violation of Title 41, Motor Vehicles, in a court of record to the Division of Facilities Construction and Management Capital Projects Fund. The division of money pursuant to Section 78-3-14.5 shall be calculated on the balance of the fine or bail forfeiture paid.
(ii) After June 30, 1998, the administrator of the courts or a municipality shall transfer $7 of the amount of a fine or bail forfeiture paid for a violation of Title 41, Motor Vehicles, in a court of record to the Division of Finance for deposit in the restricted account created by this section. The division of money pursuant to Section 78-3-14.5 shall be calculated on the balance of the fine or bail forfeiture paid.
(3) (a) There is created within the General Fund a restricted account known as the State Courts Complex Account.
(b) The Legislature may appropriate monies from the restricted account to the administrator of the courts for the following purposes only:
(i) to repay costs associated with the construction of the court complex that were funded from sources other than revenues provided for under this Subsection (3)(b)(i); and
(ii) to cover operations and maintenance costs on the court complex.
Section 2244. Section 78-8-107 is amended to read:
78-8-107
. Authority of Judicial Conduct Commission -- Disclosure of criminal misconduct or information -- Procedure for reprimand, censure, suspension, removal, or involuntary retirement -- Certain orders made public.(1) (a) The commission shall receive and investigate any complaint against a judge.
(b) (i) If the commission receives a complaint that alleges conduct that may be a misdemeanor or felony under state or federal law, it shall, unless the allegation is plainly frivolous, immediately refer the allegation of criminal misconduct and any information relevant to the potential criminal violation to the local prosecuting attorney having jurisdiction to investigate and prosecute the crime.
(ii) If the local prosecuting attorney receiving the allegation of criminal misconduct of a judge practices before that judge on a regular basis, or has a conflict of interest in investigating the crime, the local prosecuting attorney shall refer this allegation of criminal misconduct to another local or state prosecutor who would not have that same disability or conflict.
(iii) The commission may concurrently proceed with its investigation of the complaint without waiting for the resolution of the criminal investigation by the prosecuting attorney.
(2) During the course of any investigation, the commission:
(a) shall refer any information relating to the criminal conduct alleged and any evidence which relates to the allegation to which the judge has been accused, unless plainly frivolous, to the local prosecuting attorney as provided in Subsection (1)(b); and
(b) may order a hearing to be held concerning the reprimand, censure, suspension, removal, or involuntary retirement of a judge.
(3) The commission shall provide the judge with all information necessary to prepare an adequate response or defense, which may include the identity of the complainant.
(4) (a) A hearing may be conducted before a quorum of the commission.
(b) Any finding or order shall be made upon a majority vote of the quorum.
(5) Alternatively, the commission may appoint three special masters, who are judges of courts of record, to hear and take evidence in the matter and to report to the commission.
(6) (a) After the hearing or after considering the record and report of the masters, if the commission finds by a preponderance of the evidence that misconduct occurred, it shall order the reprimand, censure, suspension, removal, or involuntary retirement of the judge.
(b) When a commission order is sent to the Supreme Court, it shall also be:
(i) publicly disclosed; and
(ii) sent to the entity that appointed the judge.
(7) When the commission issues any order, including a stipulated order, that is sent to the Supreme Court, the record shall include:
(a) the original complaint and any other information regarding violations, or potential violations, of the Code of Judicial Conduct;
(b) the charges;
(c) all correspondence and other documents which passed between the commission and the judge;
(d) all letters which may explain the charges;
(e) all affidavits, subpoenas, and testimony of witnesses;
(f) the commission's findings of fact and conclusions of law;
(g) a transcript of any proceedings, including hearings on motions;
(h) a copy of each exhibit admitted into evidence;
(i) a summary of all the complaints dismissed by the commission against the judge which contained allegations or information similar in nature to the misconduct under review by the Supreme Court;
(j) a summary of all the orders implemented, rejected, or modified by the Supreme Court against the judge; and
(k) all information in the commission's files on any informal resolution, including any letter of admonition, comment, or caution, that the commission issued against the judge prior to May 1, 2000.
(8) (a) Before the implementation, rejection, or modification of any commission order the Supreme Court shall:
(i) review the commission's proceedings as to both law and fact and may permit the introduction of additional evidence; and
(ii) consider the number and nature of previous orders issued by the Supreme Court and may increase the severity of the order based on a pattern or practice of misconduct or for any other reason that the Supreme Court finds just and proper.
(b) In recommending any order, including stipulated orders, the commission may not place, or attempt to place, any condition or limitation upon the Supreme Court's constitutional power to:
(i) review the commission's proceedings as to both law and fact; or
(ii) implement, reject, or modify a commission order.
(c) After briefs have been submitted and any oral argument made, the Supreme Court shall, within 90 days, issue its order implementing, rejecting, or modifying the commission's order.
(9) (a) Upon an order for involuntary retirement, the judge shall retire with the same rights and privileges as if the judge retired pursuant to statute.
(b) Upon an order for removal, the judge shall be removed from office and his salary or compensation ceases from the date of the order.
(c) Upon an order for suspension from office, the judge may not perform any judicial functions and may not receive a salary for the period of suspension.
(10) (a) The transmission, production, or disclosure of any complaints, papers, or testimony in the course of proceedings before the commission, the masters appointed under Subsection (5), or the Supreme Court may not be introduced in any civil action.
(b) The transmission, production, or disclosure of any complaints, papers, or testimony in the course of proceedings before the commission or the masters appointed under Subsection (5) may be introduced in any criminal action, consistent with the Utah Rules of Evidence. This information shall be shared with the prosecutor conducting a criminal investigation or prosecution of a judge as provided in Subsections (1) and (2).
(c) Complaints, papers, testimony, or the record of the commission's confidential hearing may not be disclosed by the commission, masters, or any court until the Supreme Court has entered its final order in accordance with this section, except:
(i) upon order of the Supreme Court;
(ii) upon the request of the judge who is the subject of the complaint;
(iii) as provided in Subsection (10)(d);
(iv) to aid in a criminal investigation or prosecution as provided in Subsections (1) and (2); or
(v) this information is subject to audit by the Office of Legislative Auditor General, and any records released to the Office of Legislative Auditor General shall be maintained as confidential, except:
(A) for information that has already been made public; and
(B) the final written and oral audit report of the Legislative Auditor General may present information about the commission as long as it contains no specific information that would easily identify a judge, witness, or complainant.
(d) Upon the dismissal of a complaint or allegation against a judge, the dismissal shall be disclosed without consent of the judge to the person who filed the complaint.
(11) The commission shall make rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, outlining its procedures and the appointment of masters.
(12) A judge who is a member of the commission or the Supreme Court may not participate in any proceedings involving the judge's own removal or retirement.
(13) Retirement for involuntary retirement as provided in this chapter shall be processed through the Utah State Retirement Office, and the judge retiring shall meet the requirements for retirement as specified in this chapter.
Section 2245. Section 78-12-29 is amended to read:
78-12-29
. Within one year.An action may be brought within one year:
(1) for liability created by the statutes of a foreign state;
(2) upon a statute for a penalty or forfeiture where the action is given to an individual, or to an individual and the state, except when the statute imposing it prescribes a different limitation;
(3) upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the state;
(4) for libel, slander, false imprisonment, or seduction;
(5) against a sheriff or other officer for the escape of a prisoner arrested or imprisoned upon either civil or criminal process;
(6) against a municipal corporation for damages or injuries to property caused by a mob or riot;
(7) on a claim for relief or a cause of action under the following sections of Title 25, Chapter 6, Uniform Fraudulent Transfer Act:
(a) Subsection 25-6-5(1)(a), which in specific situations limits the time for action to four years, under Section 25-6-10; or
(b) Subsection 25-6-6(2);
(8) except as otherwise expressly provided by statute, against a county legislative body or a county executive to challenge a decision of the county legislative body or county executive, respectively; or
(9) on a claim for relief or a cause of action under [Title 63, Chapter 90b] Title 63L, Chapter 5, Utah Religious Land Use Act.
Section 2246. Section 78-14-12 is amended to read:
78-14-12
. Division to provide panel -- Exemption -- Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license fees.(1) (a) The division shall provide a hearing panel in alleged medical liability cases against health care providers as defined in Section 78-14-3, except dentists.
(b) (i) The division shall establish procedures for prelitigation consideration of medical liability claims for damages arising out of the provision of or alleged failure to provide health care.
(ii) The division may establish rules necessary to administer the process and procedures related to prelitigation hearings and the conduct of prelitigation hearings in accordance with Sections 78-14-12 through 78-14-16.
(c) The proceedings are informal, nonbinding, and are not subject to [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, but are compulsory as a condition precedent to commencing litigation.
(d) Proceedings conducted under authority of this section are confidential, privileged, and immune from civil process.
(2) (a) The party initiating a medical liability action shall file a request for prelitigation panel review with the division within 60 days after the service of a statutory notice of intent to commence action under Section 78-14-8.
(b) The request shall include a copy of the notice of intent to commence action. The request shall be mailed to all health care providers named in the notice and request.
(3) (a) The filing of a request for prelitigation panel review under this section tolls the applicable statute of limitations until the earlier of 60 days following the division's issuance of an opinion by the prelitigation panel, or 60 days following the termination of jurisdiction by the division as provided in this subsection. The division shall send any opinion issued by the panel to all parties by regular mail.
(b) (i) The division shall complete a prelitigation hearing under this section within 180 days after the filing of the request for prelitigation panel review, or within any longer period as agreed upon in writing by all parties to the review.
(ii) If the prelitigation hearing has not been completed within the time limits established in Subsection (3)(b)(i), the division has no further jurisdiction over the matter subject to review and the claimant is considered to have complied with all conditions precedent required under this section prior to the commencement of litigation.
(c) (i) The claimant and any respondent may agree by written stipulation that no useful purpose would be served by convening a prelitigation panel under this section.
(ii) When the stipulation is filed with the division, the division shall within ten days after receipt enter an order divesting itself of jurisdiction over the claim, as it concerns the stipulating respondent, and stating that the claimant has complied with all conditions precedent to the commencement of litigation regarding the claim.
(4) The division shall provide for and appoint an appropriate panel or panels to hear complaints of medical liability and damages, made by or on behalf of any patient who is an alleged victim of medical liability. The panels are composed of:
(a) one member who is a resident lawyer currently licensed and in good standing to practice law in this state and who shall serve as chairman of the panel, who is appointed by the division from among qualified individuals who have registered with the division indicating a willingness to serve as panel members, and a willingness to comply with the rules of professional conduct governing lawyers in the state of Utah, and who has completed division training regarding conduct of panel hearings;
(b) (i) one member who is a licensed health care provider listed under Section 78-14-3, who is practicing and knowledgeable in the same specialty as the proposed defendant, and who is appointed by the division in accordance with Subsection (5); or
(ii) in claims against only hospitals or their employees, one member who is an individual currently serving in a hospital administration position directly related to hospital operations or conduct that includes responsibility for the area of practice that is the subject of the liability claim, and who is appointed by the division; and
(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care provider, and who is a responsible citizen of the state, selected and appointed by the division from among individuals who have completed division training with respect to panel hearings.
(5) (a) Each person listed as a health care provider in Section 78-14-3 and practicing under a license issued by the state, is obligated as a condition of holding that license to participate as a member of a medical liability prelitigation panel at reasonable times, places, and intervals, upon issuance, with advance notice given in a reasonable time frame, by the division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
(b) A licensee may be excused from appearance and participation as a panel member upon the division finding participation by the licensee will create an unreasonable burden or hardship upon the licensee.
(c) A licensee whom the division finds failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
(d) A licensee whom the division finds intentionally or repeatedly failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
(e) All fines collected under Subsections (5)(c) and (d) shall be deposited in the Physicians Education Fund created in Section 58-67a-1.
(6) Each person selected as a panel member shall certify, under oath, that he has no bias or conflict of interest with respect to any matter under consideration.
(7) Members of the prelitigation hearing panels shall receive per diem compensation and travel expenses for attending panel hearings as established by rules of the division.
(8) (a) In addition to the actual cost of administering the licensure of health care providers, the division may set license fees of health care providers within the limits established by law equal to their proportionate costs of administering prelitigation panels.
(b) The claimant bears none of the costs of administering the prelitigation panel except under Section 78-14-16.
Section 2247. Section 78-17-3 is amended to read:
78-17-3
. Liability imposed and limitations -- Defenses -- Limitations on damages.(1) Except as provided in this section, any person who owns, holds under license, transports, ships, stores, or disposes of nuclear material is liable, without regard to the conduct of any other person, for harm from nuclear incidents arising in connection with or resulting from such ownership, transportation, shipping, storage, or disposal.
(2) Except as provided in this section, any person who owns, designs, constructs, operates, or maintains facilities, structures, vehicles, or equipment used for handling, transportation, shipment, storage, or disposal of nuclear material is liable, without regard to the conduct of any other person, for harm from nuclear incidents arising in connection with or resulting from such ownership, design, construction, operation, and maintenance.
(3) Liability established by this chapter shall only be imposed if a court of competent jurisdiction finds that:
(a) the nuclear incident which is the basis for the suit is covered by existing financial protection undertaken pursuant to 42 U.S.C. Sec. 2210; and
(b) a person who is liable under this chapter is a person indemnified as defined in 42 U.S.C. Sec. 2014.
(4) Immunity of the state, its political subdivisions, or the agencies of either from suit are only waived with respect to a suit arising from a nuclear incident:
(a) in accordance with [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah; or
(b) when brought by a person suffering harm.
(5) The conduct of the person suffering harm is not a defense to liability, except that this section does not preclude any defense based on:
(a) the claimant's knowing failure to mitigate damages related to any injury or damage to the claimant or the claimant's property; or
(b) an incident involving nuclear material that is knowingly and wrongfully caused by the claimant.
(6) No person may collect punitive or exemplary damages under this chapter.
Section 2248. Section 78-19-1 is amended to read:
78-19-1
. Definitions.As used in this chapter:
(1) "Damage or injury" includes physical, nonphysical, economic, and noneconomic damage.
(2) "Financially secure source of recovery" means that, at the time of the incident, a nonprofit organization:
(a) has an insurance policy in effect that covers the activities of the volunteer and has an insurance limit of not less than the limits established under the Governmental Immunity Act of Utah in Section [63-30d-604] 63G-7-604; or
(b) has established a qualified trust with a value not less than the combined limits for property damage and single occurrence liability established under the Governmental Immunity Act of Utah in Section [63-30d-604] 63G-7-604.
(3) "Nonprofit organization" means any organization, other than a public entity, described in Section 501 (c) of the Internal Revenue Code of 1986 and exempt from tax under Section 501 (a) of that code.
(4) "Public entity" has the same meaning as defined in Section [63-30b-1] 63G-8-102.
(5) "Qualified trust" means a trust held for the purpose of compensating claims for damages or injury in a trust company licensed to do business in this state under the provisions of Title 7, Chapter 5, Trust Business.
(6) "Reimbursements" means, with respect to each nonprofit organization:
(a) compensation or honoraria totaling less than $300 per calendar year; and
(b) payment of expenses actually incurred.
(7) (a) "Volunteer" means an individual performing services for a nonprofit organization who does not receive anything of value from that nonprofit organization for those services except reimbursements.
(b) "Volunteer" includes a volunteer serving as a director, officer, trustee, or direct service volunteer.
(c) "Volunteer" does not include an individual performing services for a public entity to the extent the services are within the scope of [Title 63, Chapter 30b] Title 63G, Chapter 8, Immunity for Persons Performing Voluntary Services or Title 67, Chapter 20, Volunteer Government Workers Act.
Section 2249. Section 78-27-37 is amended to read:
78-27-37
. Definitions.As used in Section 78-27-37 through Section 78-27-43:
(1) "Defendant" means a person, other than a person immune from suit as defined in Subsection (3), who is claimed to be liable because of fault to any person seeking recovery.
(2) "Fault" means any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.
(3) "Person immune from suit" means:
(a) an employer immune from suit under Title 34A, Chapter 2, Workers' Compensation Act, or Chapter 3, Utah Occupational Disease Act; and
(b) a governmental entity or governmental employee immune from suit pursuant to [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(4) "Person seeking recovery" means any person seeking damages or reimbursement on its own behalf, or on behalf of another for whom it is authorized to act as legal representative.
Section 2250. Section 78-27-43 is amended to read:
78-27-43
. Effect on immunity, exclusive remedy, indemnity, contribution.Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any common law or statutory immunity from liability, including, but not limited to, governmental immunity as provided in [Title 63, Chapter 30d] Title 63G, Chapter 7, Governmental Immunity Act of Utah, and the exclusive remedy provisions of Title 34A, Chapter 2, Workers' Compensation Act. Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any right to indemnity or contribution arising from statute, contract, or agreement.
Section 2251. Section 78-27a-6 is amended to read:
78-27a-6
. Payment of expenses awarded -- Statement required in agency's budget.Expenses awarded under this act shall be paid from funds in the regular operating budget of the state entity. If sufficient funds are not available in the budget of the entity, the expenses shall be considered a claim governed by the provisions of [Title 63, Chapter 6] Title 63G, Chapter 9, Board of Examiners Act. Every state entity against which litigation expenses have been awarded under this act shall, at the time of submission of its proposed budget, submit a report to the governmental body which appropriates its funds in which the amount of expenses awarded and paid under this act during the fiscal year is stated.
Section 2252. Section 78-31b-8 is amended to read:
78-31b-8
. Confidentiality.(1) ADR proceedings shall be conducted in a manner that encourages informal and confidential exchange among the persons present to facilitate resolution of the dispute or a part of the dispute. ADR proceedings shall be closed unless the parties agree that the proceedings be open. ADR proceedings shall not be recorded.
(2) No evidence concerning the fact, conduct, or result of an ADR proceeding may be subject to discovery or admissible at any subsequent trial of the same case or same issues between the same parties.
(3) No party to the case may introduce as evidence information obtained during an ADR proceeding unless the information was discovered from a source independent of the ADR proceeding.
(4) Unless all parties and the neutral agree, no person attending an ADR proceeding, including the ADR provider or ADR organization, may disclose or be required to disclose any information obtained in the course of an ADR proceeding, including any memoranda, notes, records, or work product.
(5) Except as provided, an ADR provider or ADR organization may not disclose or discuss any information about any ADR proceeding to anyone outside the proceeding, including the judge or judges to whom the case may be assigned. An ADR provider or an ADR organization may communicate information about an ADR proceeding with the director for the purposes of training, program management, or program evaluation and when consulting with a peer. In making those communications, the ADR provider or ADR organization shall render anonymous all identifying information.
(6) Nothing in this section limits or affects the responsibility to report child abuse or neglect in accordance with Section 62A-4a-403.
(7) No records of ADR proceedings under this act or under Title 78, Chapter 31a, Utah Uniform Arbitration Act, shall be subject to [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, except settlement agreements filed with the court after conclusion of an ADR proceeding or awards filed with the court after the period for filing a demand for trial de novo has expired.
Section 2253. Section 78-31c-106 is amended to read:
78-31c-106
. Exceptions to privilege.(1) There is no privilege under Section 78-31c-104 for a mediation communication that is:
(a) in an agreement evidenced by a record signed by all parties to the agreement;
(b) available to the public under [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, or made during a mediation session which is open, or is required by law to be open, to the public;
(c) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(d) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(e) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;
(f) except as otherwise provided in Subsection (3), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(g) subject to the reporting requirements in Section 62A-3-305 or 62A-4a-403.
(2) There is no privilege under Section 78-31c-104 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that:
(a) the evidence is not otherwise available;
(b) there is a need for the evidence that substantially outweighs the interest in protecting confidentiality; and
(c) the mediation communication is sought or offered in:
(i) a court proceeding involving a felony or misdemeanor; or
(ii) except as otherwise provided in Subsection (3), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
(3) A mediator may not be compelled to provide evidence of a mediation communication referred to in Subsection (1)(f) or (2)(c)(ii).
(4) If a mediation communication is not privileged under Subsection (1) or (2), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under Subsection (1) or (2) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.
Section 2254. Section 78-31c-108 is amended to read:
78-31c-108
. Confidentiality.Unless subject to Title 52, Chapter 4, Open and Public Meetings Act, and [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state.
Section 2255. Section 78-32-17 is amended to read:
78-32-17
. Noncompliance with child support order.(1) When a court of competent jurisdiction, or the Office of Recovery Services pursuant to an action under [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, makes an order requiring a parent to furnish support or necessary food, clothing, shelter, medical care, or other remedial care for his child, and the parent fails to do so, proof of noncompliance shall be prima facie evidence of contempt of court.
(2) Proof of noncompliance may be demonstrated by showing that:
(a) the order was made, and filed with the district court; and
(b) the parent knew of the order because:
(i) the order was mailed to the parent at his last-known address as shown on the court records;
(ii) the parent was present in court at the time the order was pronounced;
(iii) the parent entered into a written stipulation and the parent or counsel for the parent was sent a copy of the order;
(iv) counsel was present in court and entered into a stipulation which was accepted and the order based upon the stipulation was then sent to counsel for the parent; or
(v) the parent was properly served and failed to answer.
(3) Upon establishment of a prima facie case of contempt under Subsection (2), the obligor under the child support order has the burden of proving inability to comply with the child support order.
(4) A court may, in addition to other available sanctions, withhold, suspend, or restrict the use of driver's licenses, professional and occupational licenses, and recreational licenses and impose conditions for reinstatement upon a finding that:
(a) an obligor has:
(i) made no payment for 60 days on a current obligation of support as set forth in an administrative or court order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the support obligation in accordance with the order; or
(ii) made no payment for 60 days on an arrearage obligation of support as set forth in a payment schedule, written agreement with the Office of Recovery Services, or an administrative or judicial order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the arrearage obligation in accordance with the payment schedule, agreement, or order; and
(iii) not obtained a judicial order staying enforcement of the support or arrearage obligation for which the obligor would be otherwise delinquent;
(b) a custodial parent has:
(i) violated a parent-time order by denying contact for 60 days between a noncustodial parent and a child and, thereafter, has failed to make a good faith effort under the circumstances to comply with a parent-time order; and
(ii) not obtained a judicial order staying enforcement of the parent-time order; or
(c) an obligor or obligee, after receiving appropriate notice, has failed to comply with a subpoena or order relating to a paternity or child support proceeding.
Section 2256. Section 78-35a-202 is amended to read:
78-35a-202
. Appointment and payment of counsel in death penalty cases.(1) A person who has been sentenced to death and whose conviction and sentence has been affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled no less than 30 days prior to the signing of the death warrant, of the provisions of this chapter allowing challenges to the conviction and death sentence and the appointment of counsel for indigent defendants.
(2) (a) If a defendant requests the court to appoint counsel, the court shall determine whether the defendant is indigent and make findings on the record regarding the defendant’s indigency. If the court finds that the defendant is indigent, it shall promptly appoint counsel who is qualified to represent defendants in death penalty cases as required by Rule 8 of the Utah Rules of Criminal Procedure.
(b) A defendant who wishes to reject the offer of counsel shall be advised on the record by the court of the consequences of the rejection before the court may accept the rejection.
(c) Costs of counsel and other reasonable litigation expenses incurred in providing the representation provided for in this section shall be paid from state funds by the Division of Finance according to rules established pursuant to [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2257. Section 78-45-7.3 is amended to read:
78-45-7.3
. Procedure -- Documentation -- Stipulation.(1) In any matter in which child support is ordered, the moving party shall submit:
(a) a completed child support worksheet;
(b) the financial verification required by Subsection 78-45-7.5(5);
(c) a written statement indicating whether or not the amount of child support requested is consistent with the guidelines; and
(d) the information required under Subsection (3).
(2) (a) If the documentation of income required under Subsection (1) is not available, a verified representation of the other party's income by the moving party, based on the best evidence available, may be submitted.
(b) The evidence shall be in affidavit form and may only be offered after a copy has been provided to the other party in accordance with Utah Rules of Civil Procedure or [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, in an administrative proceeding.
(3) Upon the entry of an order in a proceeding to establish paternity or to establish, modify, or enforce a support order, each party shall file identifying information and shall update that information as changes occur with the court that conducted the proceeding.
(a) The required identifying information shall include the person's social security number, driver's license number, residential and mailing addresses, telephone numbers, the name, address and telephone number of employers, and any other data required by the United States Secretary of Health and Human Services.
(b) Attorneys representing the office in child support services cases are not required to file the identifying information required by Subsection (3)(a).
(4) A stipulated amount for child support or combined child support and alimony is adequate under the guidelines if the stipulated child support amount or combined amount equals or exceeds the base child support award required by the guidelines.
Section 2258. Section 78-45g-104 is amended to read:
78-45g-104
. Adjudication -- Jurisdiction.(1) The district court, the juvenile court, and the Office of Recovery Services in accordance with Section 62A-11-304.2 and [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act, are authorized to adjudicate parentage under Parts 1 through 6, and Part 9 of this chapter.
(2) The district court and the juvenile court have jurisdiction over proceedings under Parts 7 and 8.
Section 2259. Section 78-45g-313 is amended to read:
78-45g-313
. Adoption of rules.The Office of Vital Records may adopt rules in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement this part.
Section 2260. Section 78-45g-407 is amended to read:
78-45g-407
. Removal of registration.The Office of Vital Records may remove a registration in accordance with rules adopted by the office in accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
Section 2261. Section 78-45g-511 is amended to read:
78-45g-511
. Confidentiality of genetic testing.Release of the report of genetic testing for parentage is controlled by [Title 63, Chapter 2] Title 63G, Chapter 2, Government Records Access and Management Act.
Section 2262. Section 78-45g-601 is amended to read:
78-45g-601
. Proceeding authorized -- Definition.(1) An adjudicative proceeding may be maintained to determine the parentage of a child. A judicial proceeding is governed by the rules of civil procedure. An administrative proceeding is governed by [Title 63, Chapter 46b] Title 63G, Chapter 4, Administrative Procedures Act.
(2) For the purposes of this part, "divorce" also includes an annulment.
Section 2263. Section 78-57-108 is amended to read:
78-57-108
. Youth Court Board -- Membership -- Responsibilities.(1) The Utah attorney general's office shall provide staff support and assistance to a Youth Court Board comprised of the following:
(a) the Utah attorney general or his designee;
(b) one member of the Utah Prosecution Council;
(c) one member from the Board of Juvenile Court Judges;
(d) the juvenile court administrator or his designee;
(e) one person from the Office of Juvenile Justice and Delinquency Prevention;
(f) the state superintendent of education or his designee;
(g) two representatives from Youth Courts based primarily in schools;
(h) two representatives from Youth Courts based primarily in communities;
(i) one member from the law enforcement community; and
(j) one member from the community at large.
(2) The members selected to fill the positions in Subsections (1)(a) through (f) shall jointly select the members to fill the positions in Subsections (1)(g) through (j).
(3) Members shall serve two-year staggered terms beginning July 1, 1999, except the initial terms of the members designated by Subsections (1)(a), (c), (e), and (i), and one of the members from Subsections (1)(g) and (h) shall serve one-year terms, but may be reappointed for a full two-year term upon the expiration of their initial term.
(4) The Youth Court Board shall meet at least quarterly to:
(a) set minimum standards for the establishment of Youth Courts, including an application process, membership and training requirements, and the qualifications for the adult coordinator;
(b) review certification applications; and
(c) provide for a process to recertify each Youth Court every three years.
(5) In accordance with [Title 63, Chapter 46a] Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the Youth Court Board shall make rules to accomplish the requirements of Subsection (3).
(6) The Youth Court Board may deny certification or recertification, or withdraw the certification of any Youth Court for failure to comply with program requirements.
(7) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(b) Members may decline to receive per diem and expenses for their service.
(8) The Youth Court Board shall provide a list of certified Youth Courts to the Board of Juvenile Court Judges, all law enforcement agencies in the state, all school districts, and the Utah Prosecution Council by December 31 of each year.
Section 2264. Section 78-61-101 is amended to read:
78-61-101
. Definitions.As used in this chapter:
(1) "Conviction" means an adjudication by a federal or state court resulting from a trial or plea, including a plea of no contest, nolo contendere, a finding of not guilty due to insanity, or not guilty but mentally ill regardless of whether the sentence was imposed or suspended.
(2) "Fund" means the Crime Victim Reparation Fund created in Section [63-63a-4] 51-9-404.
(3) "Memorabilia" means any tangible property of a person convicted of a first degree or capital felony, the value of which is enhanced by the notoriety gained from the conviction.
(4) "Profit" means any income or benefit over and above the fair market value of the property that is received upon the sale or transfer of memorabilia.
Section 2265. Repealer.
This bill repeals:
Section 63-46a-17, Electronic records and conversion of written records by governmental agencies.
Section 63-97-101, Title.